Yearly Archives: 2013

26 June 2013: More Reading, More Writing

writing1_0With the rate at which the lake has been falling lately, it’s a wonderful thing when the downward trend reverses, even temporarily, as it did this morning. Last night’s thunderstorm dropped 0.95″ of rain in a few short hours- a real splasher. This morning the lake had risen 0.07′ (0.84″) since yesterday morning even while it fell 1.2″ in the same period. If we’re lucky runoff will allow this water level to hold for one more day. A good soaking rain is forecast for the end of this week. Is it too much to ask Paul Kelley to close the dam gate to try and keep the water level at a reasonable level for the summer?

I’ve been re-reading the 198 pages of hearing testimony from last August’s public hearing in preparation for diving into my Findings of Fact and Conclusions of Law which are due in a little under 2 weeks. I had started work on them when the transcript was first released late last September and I got some ways in to it before the PPM motion to dismiss brought everything to a sudden halt but there’s still a lot to do to finish. Ms. Parent’s denying my motion to supplement the record with additional material has actually made my job easier, and I’m grateful; considering what has got to get done by July 8th, easier is better and I can do plenty of damage with what’s already in the record.

The outcome of these proceedings is certain and there is nothing Kelley can do to delay things further. Once our closing arguments are in, DEP will begin deliberating. If they are sufficiently motivated, and I have a feeling they are, they could wrap things up in a month’s time and draft a water level order well before the end of August.

24 June 2013: DEP Issues Procedural Order #7

bam-customPresiding Officer Heather Parent has issued the Department’s Procedural Order #7. It was sent to the service list (along with an updated service list) by Beth Callahan a little before 4 PM today. First and foremost, the order addresses the recent Clary Lake Association motion filed by Robert Rubin, Association Counsel, calling for a prompt final date for closing arguments:

“Following receipt of this Order, the Department invites the parties to submit final closing arguments about the petition. Closing arguments must be submitted to the Department no later than July 8, 2013 and must be limited to the criteria outlined in 38 M.R.S.A. § 840 (4).”

This is an aggressive schedule, suggesting that DEP is done fiddling around and is ready to get down to business. This works in our favor. Ms. Parent also ruled on my motion to supplement the record with additional information and Kelley’s motion to for a new hearing. She denied them both. I’m content. It would have been nice to get more stuff into the record, but it’s not necessary.

L22585BN DEP Procedural Order #7

Here’s the revised Service List:

Service_List_17-June-13

22 June 2013 Lincoln County News: Lake association calls for speedy decision on water level

newspaper_bw-customA short and sweet article in this week’s Lincoln County News by Shlomit Auciello about the Clary Lake Association’s short and sweet motion to set a deadline for submission of Findings of Fact and Conclusions of Law. The actual motion was filed by Bob Rubin, counsel for the Association back on June 12th. We have not yet received a response from DEP nor has Kelley filed an objection to it.

21 June 2013: The Summer 2013 Clary Lake Clarion is going in the mail [UPDATED]

newsletter01The Summer 2013 issue of the Clary Lake Clarion, the newsletter of the Clary Lake Association, is going in the mail tomorrow morning. As usual it’s being mailed to all Clary Lake shore owners as well as a number of other interested parties. I’m a firm believer that every organization, no matter how well represented digitally, really needs to put out something tangible once in a while to stay firmly in touch with their membership. The plan has been to prepare 2 newsletters per year but in for the past few years it’s been all I could do to get one out in time for the Annual Meeting. And so it is again this year.

I’ve uploaded the newsletter to the site and added it to the Newsletters page under the Membership main menu item. Feel free to download the newsletter and share it with your friends.

[UPDATE] The above link was broken. It’s now fixed. When you encounter a broken link on this site, please email me!

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20 June 2013: MEMA Dam Inspection shows no change to Clary Lake dam safety status

inspector1_0Tony Fletcher, State Dam Inspector did in fact inspect the Clary Lake dam last Tuesday morning as previously suspected, accompanied by another engineer by the name of Blaine Cardali. Present also were Paul Kelley representing Pleasant Pond Mill LLC and Richard Smith representing Aquafortis Associates LLC. So Paul Kelley got his MEMA dam inspection after all, but he didn’t get the report he was looking for, or much of a report at all, judging from an email sent by Tony Fletcher to Kelley late Tuesday afternoon, summarizing their nearly 3 hour visit to the dam in a few short sentences:

Regarding the “hazard” of the dam, in my opinion Clary Lake Dam should remain a “low potential hazard dam”. In terms Maine State Law, low hazard dams do not require emergency action plans or remedial action.

Continue reading

19 June 2013: Edward Grant Jr. has passed away [UPDATED]

Ed Grant Jr.Edward Grant Jr. passed away at 11:17 AM this morning at his home in Baton Rouge, Louisiana surrounded by his family. There are no more details available at this time.

Edward Grant Jr’s obituary is now online:

It is also linked to a page under the Membership main menu heading called “Past Members No Longer With Us” and there is also a donation page where you can donate money to the Clary Lake Association in his memory, if you are so inclined. There is also a place at the bottom of the page to leave a comment.

19 June 2013: Tuesday morning confab at the dam

eyesThe Whitefield informant network is alive and well- little can transpire in the town of Whitefield that isn’t observed by at least one person who spends at least part of the day hanging out at the Whitefield Superette, drinking coffee and holding office. According to several reports, there was a gathering of folks at the dam for a couple of hours yesterday morning, from about 9 AM to a little after 11 AM. Paul Kelley and Richard Smith were there, and one or more people “from the state” judging from their description. They were reportedly standing on the road and pointing at the dam when observed by one passerby.

I suspect it was most likely Tony Fletcher, State Dam Inspector with the Maine Emergency Management Agency (MEMA) since according to Paul Kelley, he’s the only person in the State qualified to point at dams. Certainly nobody at DEP is qualified to point at dams. I’m not qualified to point at dams. Kelley can point at his dam of course.

I’ll try to confirm this but it sounds like Kelley managed to convince MEMA to come out and do another dam inspection, which is not really surprising considering the big stink Kelley created around this issue. I’ll simply remind everyone: the condition of the dam impounding Clary Lake is not relevant to the determination of a water level for the lake. Period. End of discussion.

17 June 2013 [UPDATED] Investigative Reporting: DEP in the (unwelcome) spotlight

hear-see-speak-no-evilMany of you have no doubt seen the recent articles in the Newpapers (Portland Press Herald, KJ, etc.) about DEP’s alleged “speak no evil, see no evil, hear no evil” approach to environmental regulation these days as in “looking the other way”, “sitting on their hands and doing nothing”, and generally “dragging their feet” on various issues. The allegations mostly involve land use and chemical industry issues with Big Money behind them. The highlight of the first article is how DEP failed to meet a deadline for submission of documents related to water levels associated with a hydropower licensing action on Long Falls dam on Flagstaff Lake, to the decided detriment of the town of Eustis. DEP claims it was an oversight. Here’s part 1 and 2 of a 3 part series:

Here is another article along the same vein by the same reporter, Colin Woodard:

The paper has printed an editorial (on the front page even) which is pretty good:

[mw-ip-deny deny=”76.179.6.54,71.173.72.205″]For those of you who attribute lack of movement on the Clary Lake water level petition to DEP intentionally dragging their feet, I disagree. There is one very good reason why this petition is taking so long: one very loud and ornery man with a grudge: I blame Paul Kelley for the delays, plain and simple. There is no “Big Business Lobby” on the other side of this petition to explain why things are taking so long. [/mw-ip-deny]

17 June 2013: Temporarily Broken Subsystem

confused-monkey1The water level chart update mechanism is broken. I’d hoped to get it fixed over the weekend but I guess I have to write a new script and I really don’t have the time right now. Sorry for the inconvenience. I’ll fix it when I get a chance. In the meantime, if you want to know what the water level of the lake is, go out and take a look!

UPDATE: Temporarily Broken Subsystem Permanently Fixed. I guess it wasn’t really broken in the first place.

15 June 2013: Landmark day, I finally built a dock

new_dockI finally got around to building a dock today, down on my shoreline. In years past I’ve had floats off shore but I’ve never had a dock on legs. It’s designed so that as the water level varies I can just pick it up and move it in or out. It’s not for tying my boat up to, I’ve already got one of those over at the farm house. This is for sitting on, drinking coffee on, reading on, napping on, fishing from, and swimming off of, and anything else that involves not really doing anything. It’s (currently) deep enough to dive off the end of it if you dive shallow. If you see someone sitting on it, swing by and say hello.

14 June 2013: Association Member Update

I received a call from Ed Grant’s daughter Kate Seba last night, she called to let me know that Ed is not doing well and is not expected to live much longer. She’s asked for us to keep him in our thoughts and in our prayers. Ed has been an active and valued member of the Association for a long, long time.

12 June 2013: Clary Lake Association files motion to set deadlines for findings of fact and conclusions of law

thumbs_up1Robert J. Rubin, counsel for the Clary Lake Association has filed a motion with the Department of Environmental Protection requesting the Hearing Officer set a “prompt final date for submission of the proposed Findings of Fact and Conclusions of Law of the Public Hearing from August 17, 2012.” The Association feels that these petition proceedings have gone on entirely too long and it’s time for some substantive action on the part of the Department. It is hoped this short and sweet motion will spur the Department to move quickly and decisively in the right direction on this matter.

I commend Bob Rubin and through him, the Association, for taking this assertive step.

10 June 2013: Petitioner Response to PPM revised response

Dear Ms. Parent:

Petitioners have no objection to this revised response. Everyone makes mistakes once in a while and within reason should be allowed to correct them. However, blaming you for making him do it, and seemingly mocking you in the process I find offensive. Furthermore, having re-read Procedural Order #5 I can see nothing in the wording of the Order to suggest that you have anything to apologize for or anything in it to justify Mr. Kelley’s imagined concerns over Department attitudes toward him or his counsel. Therefore I object to his suggestion that you review or revise the Order in any way. Mr. Kelley is imagining things. 

I would also note for the record that Mr. Kelley’s statement that the revision consists of “a few minor changes to the first paragraph on page four” is incorrect; footnote 10 has been changed:
 
From:

“See 38 MRSA §840(4)(B) regarding the issue of safety and §840(E) regarding accommodation of precipitation and run off of waters.”

To:

“See 38 MRSA §840(4)(B) regarding the issue of safety and §840(E) regarding accommodation of precipitation and run off of waters. An application for a new dam must be allowed if a water level is ordered.

I’m not sure to what that change refers.
 
Respectfully,
George-
— 
George Fergusson <gsfergusson@gmail.com>
Whitefield, Maine 207-549-5991
“Dulcius ex asperis”

10 June 2013: PPM submits revised response to Procedural Order #6

dohPaul Kelley has submitted a revised response to Procedural Order #6 along with a typically confusing, profusely-footnoted cover letter explaining what the error was in the original copy. Rather than stopping there however, which would have been fine, he continues on in excruciating detail to explain WHY the error occurred and he has the gall to rest the blame with the Presiding Officer herself, for making him do it:

Kelley can do no wrong: even when he makes a mistake it’s someone else’s fault!

08 June 2013: A few thoughts on Kelley’s recent vitriolic response to Procedural Order 6

angry_business_manAfter having his request for an extension denied, I expected Paul Kelley to take things to another level but I did not expect him to lash out with an angry, hate-filled, indiscriminate attack against anyone and everyone. Nobody is above ridicule or scorn. Clearly, Kelley is losing this battle and he knows it, and this latest tirade is proof of that. For those of you who haven’t figured out what his response was all about, he’s appealing the Presiding Officer’s decision denying him an extension to the DEP Commissioner. That intent was contained in the last cryptic sentence on the very last page (the reference to 06-096 Chapter 3 refers to the Department of Environmental Protection’s rules concerning the conduct of licensing hearings, with section 4(D) being ruling appeals). The rest of the document is Kelley going postal: pure and simple spiteful vitriol or as the saying goes, “shock and awe”. That’s sure going to go over well with the Department. Not.

In his anger Kelly perhaps revealed a few things that a calmer, more cautious Paul Kelley would not have said. For example, I have suspected for a while now that his plan with the petition for release from dam ownership or water level maintenance (which he prefers to call “Clary Lake Dam abandonment proceedings”) was to try and stall the water level petition long enough to get a breach order from the State but of course he couldn’t come right out and say that because that’s not the purpose of the statute. He has to pretend he is looking for a new dam owner because to do otherwise would be to engage the State’s resources under false pretenses and make a mockery out of the system. Well he came right out and said in his response what the real deal with the petition for release from dam ownership is about, in footnote 6:

…”that the anomalies cited herein and in previous filings have largely triggered recent Clary Lake Dam abandonment proceedings by PPM – proceedings seemingly likely to lead to a formal (but superfluous) breach order by the Commissioner, which will supercede any Water Level Order which may issue from this proceeding.”

Caught in the act of playing both sides against the middle. Nice work Kelley, thanks for putting that bit on the record. DEP just loves to be played for a fool. Your chances of actually getting a breach order on the dam? Zero. Watching you try? Priceless.

I have a few other observations I’ll keep to myself for now. I have no intention at this time commenting on this response. There are several issues he’s raised (over and over and over) which will be adequately dealt with when we prepare our Findings of Fact. The DEP has their hands full for the time being. I see no sense in adding to the furor at this time.

07 June 2013: Pleasant Pond Mill LLC Reply to Procedural Order #6

daffy-customAt 4:50 PM this afternoon (did I call that or what!) Paul Kelley posted his response to… Procedural Order 6? I thought today was the deadline for comments on documents released as an addendum to Procedural Order 5. Oh well. What do I know. I’m sure it will all make sense when I read it. Without further adieu:

Kelley also included 4 other documents which appear stuff he got from a FOAA request. Ain’t looked at `em:

Comments later after I’ve actually read this stuff.

07 June 2013: Petitioner’s Comments on the 28 August 2012 MEMA Report Addendum to Procedural Order 5: Dam Safety

dead_endI have submitted Petitioner’s comments on the Maine Emergency Management Agency material, with time to spare. If Kelley stays true to form, he’ll be posting his comments about 4:50 PM. As I mentioned earlier, I hadn’t planned on responding to the MEMA comments because…  well, what is there to say? Nonetheless since Kelly is making such a big deal out of this, I thought I should say something:

Kelley is chasing down a dead end road with this dam safety issue.

07 June 2013: Tropical Storm Andrea expected to drop a lot of rain

Tropical storm Andrea is headed north, hot on the heals of an  unnamed low pressure system loaded with moisture and it’s all headed this way. The NOAA Graphical Forecast for Maine for the next 24 hours is forecasting 2.5″ to 3″ of rain from this combined weather event, most of it falling tonight and into early Saturday morning. Possible locally higher amounts likely. Rainfall amounts have been steadily revised upwards since last night; a lot depends on how far off the coast Andrea tracks. If it remains closer to the shore, rainfall amounts could be significantly higher. This forecast is more or less consistent with this morning’s Channel 6 News Center weather report. There is a flood watch in effect for Lincoln County from this evening through Saturday afternoon.

The lake level has dropped about 8″ from a high of about -31″ below the top of the dam on May 31st to about -39″ now. This rain should more than replace what has been lost in the last week. I for one am thrilled.

Careful out there folks.

07 June 2013: It’s Comment Deadline Friday :)

mema-customToday is the deadline for submission of comments on the material distributed as an addendum to Procedural Order 5 back on 9 April. Comments were originally due on 9 May but on 7 May, DEP granted Paul Kelley a 30 day extension. Kelley requested another 30+ day extension late last week. That request was denied.

There were two documents distributed with the addendum, the new minimum flows recommendation “Clary Lake Assessment” and Maine Emergency Management Agency (MEMA) comments. Theoretically comments due today could be on either document, but Kelley and I have already submitted comments on the minimum flows recommendation so this deadline is all about Dam Safety.

Kelley would appear to be having an apoplectic fit around the issue of dam safety. From his second appeal to DEP for an extension to the comment period:

“The DEP’s post-hearing actions seem to indicate that the department is apparently contemplating using unchallenged “data” to a) impose not only a new definition of “normal high water”, but b) to do so in an effort to impose a Water Level Order impounding in excess of three quarters of a BILLION gallons of water behind an uninsurable, 110 year old breached dam, and pointing it, like a loaded gun, at a federally designated National Register property AND a federally designated Endangered Species spawning ground directly downstream.”

A bit overly dramatic, don’t you think? And the real irony? That Kelley owns that “loaded gun” 🙂 And Kelley expects us to believe he doesn’t have an interest in that “federally designated National Register property” and even more laughable, that he actually cares about a “federally designated Endangered Species spawning ground.” What does he think we are- stupid?

For my part, I had not intended to prepare any comments on the MEMA report because I couldn’t think of anything to say. However, since Kelley is making such a big deal about it, I feel I must say *something* so I’m working on a short set of remarks. In the mean time, I wait with anticipation for Kelley to submit his tirade on dam safety and his indictment of MEMA for failing to take the safety of the Clary Lake dam and the high-water risk to his downstream property seriously. It’s sure to be a “classic Kelley” tirade.

06 June 2013: Branch Pond water level petition hearing scheduled for August 23rd

Branch Pond, Midas #5754I received word from Brandon Kulik today that DEP has scheduled a public hearing on their water level petition for 23 August at a time and place to be announced. Brandon is  the Senior Fisheries Biologist at Kleinschmidt Associates and the petition spokesperson for the Branch Pond petition. Branch Pond is located at the head waters of the West Branch of the Sheepscot River, partly in the town of China and partly in Palermo. Both Clary Lake and Branch Pond are in the Sheepscot River watershed. It’s a beautiful little pond with a big dam owner problem. Margaret and I went up there last summer to visit with Brandon and his neighbor Mike Wozniak and talk about water level petitions.

The Clary Lake Association is sharing some space on our web server with the Branch Pond Association. I don’t really have the time to put much polish on their site but I have updated the home page with the 2013 dues notice. I’ve also added a “Branch Pond” post category to make it easier to pull out Branch Pond posts on this news page.