In a move that should surprise no one, Richard Smith of Aquafortis Associates LLC [AQF] has formally appealed the Department of Environmental Protection’s decision to approve our application to transfer the Clary Lake Water Level Order to our organization. The appeal of the December 6th Department Order #L-22585-36-F-T was filed “in a timely manner” with the Board of Environmental Protection [BEP] on December 11th, the same day I posted that our license transfer application had been approved. This appeal can only be viewed as ongoing harassment of the Association by Paul Kelley and Richard Smith and a continued attack on Clary Lake, and the Clary Lake Water Level Order. One wonders what they can possibly hope to accomplish with this appeal save wasting our time and that of the DEP and the BEP? It appears the following email I received from DEP on December 13th is in fact the formal appeal:

• AQF Request for Appeal 12-11-2018

Here’s the formal Notice of Appeal we received on December 20th:

• Notice of Receipt of Appeal 12-20-2018

Included with the above notice was a excerpt of Department Rules Chapter 2 § 24 covering appeals of DEP Commissioner decisions to the BEP, and the Service List:

• Chapter 2 24 appeals procedure
• Service List

Appeals of Department decisions to the BEP are limited to a review of the Administrative Record compiled by the Department during the decision making process. However, under normal circumstances aggrieved parties can request that supplemental evidence be included in the record and considered by the board, but that doesn’t guarantee that the Board will agree to admit it. It is also pretty clear from the Notice of Appeal letter that the Board doesn’t intend to admit any supplemental evidence into the proceedings. From the Notice of Appeal:

“Please note that although the appeal contains comment on prior proceedings regarding the water level order and elements of that order, the water level order is now final and not properly before the Board. The only matter before the Board on appeal is the transfer of the duties and obligations of the water level order to Clary Lake Association.”

The BEP is quite familiar with Richard Smith and Paul Kelley. Perhaps you will recall back in late June of 2015 when Paul Kelley appealed the DEP’s March 2015 decision to dismiss his petition for release from dam ownership or water level maintenance to the BEP. Kelley’s appeal was dismissed (see 30 June 2015 “Kelley’s appeal of Petition for Release Dismissal to BEP rejected“).

For more background on this matter see a post I wrote back on November 30 with an update on our license transfer application including Department responses to 2 separate requests for a public hearing on the application, one from Richard Smith and the other from Frederick Duncan; both requests were denied. One would like to think, now that we own and have repaired the Clary Lake dam, that these “aggrieved parties” would finally decide to move on with their lives, rather than continue fighting a lost battle. Apparently that is not their plan at this time. Sad.

I think it is important for our Membership and the general public to be aware of the ongoing harassment we’re being subjected to, if only to expose the perpetrators to the light of day. The deadline for responses to this appeal is January 21, 2019 at 5:00 PM. Stay tuned.