Author Archives: George Fergusson

30 January 2016: Superior Court grants State’s Motion to Dismiss

I must apologize, all the hype and hoopla surrounding the recent foreclosure and auction of the Clary Lake dam property has unfairly eclipsed a much more exciting and significant event that I’m only now finding the time to write about: I learned a couple of days ago that on Monday, January 25th the Lincoln County Superior Court issued a ruling in favor of the State’s motion to dismiss. This is fantastic news and represents a major victory for the Attorney General’s Office, and for DEP and it opens the door for aggressive enforcement action.

The Order itself is quite short and a little hard to understand so I will excerpt and explain as best I can the relevant portions from my lay person’s point of view. If you just want to see the order, scroll to the bottom of the post where I’ve included links to the Order and the briefing documents. First keep in mind that the phrase “motion to dismiss” does not mean that the State has asked the court to dismiss the whole appeal of the water level order, as pleasant a thought as that might be. It means that the State has selectively identified parts and pieces (and in this case, parties) that they feel are not relevant to the case, not applicable under the law, or for some other reason just shouldn’t be in there. Typically when a party files a lawsuit they toss in everything including the kitchen sink. It is the responding party’s prerogative to then ask the Court to cut it down to its essential worthy elements.

Continue reading →

30 January 2016 Central Maine Papers: Clary Lake dam auction draws a single bid

My apologies for not posting something before this about yesterday’s auction of the Clary Lake dam, but I’ve been a little busy. I know there’s a lot of interest in who showed up and what happened. To start, there is an excellent article on the Central Maine Papers site this morning (the print editions being the Kennebec Journal and the Morning Sentinel) by Staff reporter Jessica Lowell that will answer some of your questions:

Clary Lake dam auction draws a single bid

28 January 2016: Strange Clary Lake Ice Conditions

Ice conditions on Clary Lake this winter are pretty strange and I can’t say as I’ve ever seen anything quite like what is happening this year. Currently there is about 7″ of ice on the lake but due to a combination the falling lake level (it’s fallen about 15″ since freezing up), recent snow, and January thaw temperatures, much of the lake is covered by 2″ to 4″ of water on top of the ice. This results in a slushy mixture which adds considerable weight to the ice, pushing it down and forcing water up through holes and cracks in the ice. I probably wouldn’t have been out on the lake in the first place except I saw my neighbor and a friend out setting ice fishing traps using his snow mobile to haul their gear. I decided to walk out and say hello, which is when I encountered the bubbling “spring” in this video:

What you’re looking at is lake water bubbling up through 4″ of slush from a 1″ diameter hole in the ice. Very disconcerting.

While the ice seems solid enough, it is disconcerting to say the least to be walking along on what appears to be a solid surface and then suddenly breaking through the crust to find yourself standing in 4″ of water. I would advise you use caution if you plan to venture out on the ice, and make sure to check the thickness frequently. Remember, because the dam’s gate is wide open, there’s a current flowing towards the channel which can result in thin ice in places. You were warned.

20 January 2016: Governor’s Nominee for Commissioner of Department of Environmental Protection Confirmed

The following is an excerpt from a Press Release on the Maine.gov website. I had the pleasure of meeting Mr. Mercer at his confirmation hearing before the Environment & Natural Resources Committee on the afternoon of January 11th. GSF

AUGUSTA – January 20, 2016 Governor Paul R. LePage’s nominees for Adjutant General and Commissioner of the Department of Environmental Protection have been unanimously confirmed by the Maine Senate.

Paul Mercer was confirmed as the Commissioner of the Department of Environmental Protection (DEP). Paul Mercer worked at Maine Maritime Academy since 2006 and held positions as Associate Professor and Department Chair within the Engineering Department. At the Academy, he has also served as a member of the senior leadership team as the Assistant to the President for Sustainability, where he led the recent Strategic Planning process, among other efforts. Mercer has used this role to promote innovation and environmental initiatives at the Academy.

Paul Mercer has an extensive background in environmental issues. He has worked with renewable energy development, solid fuels and biomass energy systems throughout the United States and Canada. This included acting as the lead developer of an energy project resulting in a 50 percent reduction of emissions at the Bucksport paper mill.

Additionally, Mercer was president of Northeast Engineering in Bucksport from 1983 until 2008. The company provided a full range of consulting services to the power generation field, as well as project development of waste wood, biofuels, de-inking and wood products facilities. He also served as president of Bay Engineering from 1978 until 1982.

Mercer earned a bachelor’s degree in Marine Engineering from Maine Maritime Academy.

20 January 2016 Lincoln County News: Clary Lake Dam Up for Auction

The Clary Lake Dam in December 2015. Due to a foreclosure, an auction has been scheduled for the Clary Lake Dam on Jan. 29. (Photo courtesy Clary Lake Association)

There’s a well-written, factual article in this week’s Lincoln County News by staff reporter Abigail Adams about the upcoming foreclosure and auction of the Clary Lake dam.

Lincoln County News: Clary Lake Dam Up for Auction

See related article from January 5th in a post on this site entitled Enos assigns Clary Lake dam mortgage to Maine company.

20 January 2016: Clary Lake Association withdraws from settlement discussions

As many of you know, the Clary Lake Association has been in settlement discussions with Paul Kelley to buy the Clary Lake dam for some time now in the hopes that we could end this lake level crisis that is now heading into its 5th year. At the same time we have also been negotiating to purchase the Clary Mill property, either separately or as a “package” which property is owned by Richard Smith of Aquafortis Associates LLC. It’s not that we want to own the Mill (we don’t), we’re only interested in the dam but the properties are so entangled that it is virtually impossible to peacefully purchase and own just the dam without owning, at least briefly, the mill property as well. This is because of the restrictive covenants placed on the properties in 2013 and the red building (with its attendant easements and maintenance issues) on top of the dam, which building happens to belong to Aquafortis Associates.

These and other factors together have horribly complicated what in theory should have been a simple real estate negotiation. Whether by accident or design, the Clary Lake dam has become so hard to purchase and unattractive to own that on the advice of town counsel, the Whitefield Select Board has voted TWICE to waive foreclosure of the dam for unpaid back taxes because of concerns over “legal entanglements.” The first vote was at a Special Select Board meeting on March 24, 2015, and the second just two weeks ago at their regularly scheduled Select Board meeting on January 5, 2016. Back taxes for 2014 and 2015 totaling just $398.87 remain unpaid. Continue reading →

18 January 2016: [UPDATED] Meeting to discuss Coopers Mills Dam proposal this Thursday January 21st

[dropcap]There[/dropcap] will be a meeting on January 21st at 7 PM at the Whitefield School to discuss Coopers Mills dam options. The Coopers Mills Dam Committee will be presenting its findings, options, and recommendations for the Coopers Mills dam. All are welcome, even if you’re not a Whitefield resident. The following information comes from a Midcoast Conservancy email I received the other day:

Options include: 1. Do nothing; 2. Repair the dam at Town expense; or 3. Remove the dam and create public access along with historical and environmental displays at the dam site, fully funded by the Atlantic Salmon Federation (ASF).

There is an important water source for the fire department behind the dam. There are engineering proposals for alternative sites within the river with some redundancy. These options, which would also be funded by ASF, deserve your careful consideration along with fish passage, historical, community and financial considerations. Please consider attending this meeting to voice your opinion.

Andy Goode with the Atlantic Salmon Federation sent me a site plan (with legend) showing the proposed design for the Coopers Mills dam site. The PDF at left consists of 2 pages, the plan and a legend page that I made from the original PowerPoint presentation, which was quite large. The PDF is still pretty large. To make it easier to view I’ve blown up a section of the original plan and saved it and the legend page in separate files.

13 January 2016: Car Goes into Clary Lake in Jefferson

There’s an article in this week’s Lincoln County News about a car accident in which a car ended up in Clary Lake. The accident occurred just after dark on January 10th. I heard there had been an accident a couple of days ago, and I drove by to take a look but there wasn’t much to see. You could see where the bushes were flattened near the culvert under the road, but there was no other evidence of the accident. Fortunately the driver wasn’t hurt! I don’t have any more details other than what I read in the paper so I’ll just send you there for more information:

Lincoln County News: Car Goes into Clary Lake in Jefferson

05 January 2016: Enos assigns Clary Lake dam mortgage to Maine company

During a routine check of the Lincoln County Registry of Deeds last week I discovered that the mortgage on the Clary Lake dam has been assigned. Arthur Enos, who sold the Clary Lake dam to Pleasant Pond Mill LLC in March of 2006 and took back a $60,000 mortgage on the property, has transferred that mortgage to a Searsmont-based company called Medius L3C by a deed recorded in Book 4962, Page 112. The mortgage assignment took place July 24, 2015 but for some reason the document wasn’t recorded until just a few weeks ago, on December 23, 2015 which explains why nobody was aware of the assignment until now.

The assignment deed doesn’t say what the consideration was so we have no idea how much Mr. Enos sold the note for; considering that the Clary Lake dam has got to be about the least desirable piece of property to own in the entire State of Maine, and considering that the mortgage has been non-performing for it’s entire 10 year existence (most loans are considered non-performing after being in default for 90 days), one can’t imagine Mr. Enos got much, if anything for it. Mr. Enos did not offer the mortgage to Clary Lake Association, who has inquired about purchasing the note from him several times in the past. Continue reading →

02 January 2016: The Year In Review

State Representative Deb Sanderson contemplating the Clary Lake dam during a site visit on August 10th. Photograph by George Fergusson

With 2015 behind us, now is a good time to look back and reflect on the year past, what has happened, and what we have, and have not managed to get done. It was a landmark year in a lot of ways, one that saw a level of activity and engagement on the part of the Clary Lake Association and Board that resulted in some significant accomplishments. That said, our primary goal of reaching an equitable settlement with Mr. Kelley and Mr. Smith and resolving the Clary Lake water level crisis has so far eluded us, but certainly not for lack of trying. The Board met 15 times over the course of the past year and spent a considerable amount of time and money pursuing a settlement, so far to no avail. We’re still trying, and while there remains the slightest chance of an equitable settlement, will continue to try, because settling represents the fastest way of resolving the current crisis and restoring Clary Lake and it’s water level to its former status.

While remaining engaged in settlement efforts this past year, we have also been doing everything we could to support the State and the DEP in their legal defense of the Water Level Order (WLO) which has been under concerted attack by the dam and mill owners since it was issued in late January 2014. While I’m confident that the State will ultimately prevail in their battle, the process will take a long time and it will not be pretty. Going forward, simply sitting back and watching the show may not be possible: even with the State doing the heavy legal lifting, the situation may arise in the future where the Association is called upon to play a more active role in the proceedings either by intervening in the anticipated appeal of enforcement action, or in some other manner. Such involvement will not be without costs. The cost of litigation avoided must therefore be considered in any negotiation. Continue reading →

01 January 2016: December 2015 Water Level Chart Archived

I’ve archived the December 2015 Water Level Chart (at left). The most notable thing about it is that for the first time since the Clary Lake Water Level Order (WLO) was issued in late January 2014 the lake level is more or less where it should be this time of year. I already wrote about this back on December 27th so I won’t say more about it now. You’ll also notice the area of the chart between 0″ and 24″ below the top of the dam (left hand scale) is now shaded to make it easier to see when the lake level (red line) is within the allowable 24″ range.

We received 4.7″ of precipitation in December, a little more than normal. However, the total precipitation for the year of 36.8″ was still 7.2″ (or about 2 months worth) short of the 44″ we typically receive in a normal year. For comparison we were a little over in 2014 (46.9″) and a little under in 2013 (40.2″).

It remains to be seen where the lake level it going to go this winter. As of yesterday afternoon the gate was still about 95% closed and if it remains that way the lake level should remain in the “allowable” range until spring. Normally, with much of the winter precipitation tied up in the form of ice and snow, runoff is usually less during the winter months. With the hole in the dam letting out more water than the gate, it is entirely likely the lake level will fall below 24″ before long. Time will tell.

27 December 2015 VIDEO: Clary Lake Dam Flows

[dropcap]With[/dropcap] the lake level up around -22″ below the top of the dam, even with the gate about 95% closed there is still a lot of water flowing out of the lake. However, judging from this video, there is even more water flowing through the hole in the dam which is located above and to the left of the outlet pipe. The amount of water flowing through the cracks to the right is inconsequential.

27 December 2015: Lake Level now where it should be this time of year

The December 2015 water level chart for the day after Christmas showing the lake level has finally risen above -24″ below the top of the dam and is now in the allowable range for lake levels under the Clary Lake water level order.

[dropcap]Sometime[/dropcap] late on Christmas day the lake level, which has been gradually rising for the past few weeks, finally rose above -24″ below the top of the dam. This marks the first time since the Clary Lake Water Level Order was issued in late January of 2014 that the lake level has actually been at or near where it is should be for a particular time of year. Yes, it has been higher a few times in the past few years, and in fact it came within 12″ of the top of the dam last spring, but at that time it was still a foot short of where it should have been at ice out. And while it’s nice to see the lake more or less where it should be going into winter (at or near 2 feet below the top of the dam), we could really have used the water this past summer when the lake sat for months at historic lows, to everyone’s dismay. Continue reading →

10 December 2015: Maine VLMP Fall 2015 Newsletter now available

The Maine Volunteer Lake Monitor Program’s Fall 2015 newsletter “The Water Column” is now available for download or viewing online. It’s a good read.

The Clary Lake Association is a contributing member of the Maine VLMP and has been actively supporting the VLMP and collecting water quality data on Clary Lake since 1975.

01 December 2015: November 2015 Water Level Chart Archived

I’ve archived the November 2015 water level chart (at left). It is rather unremarkable, I suppose. The dam’s gate remains about 90% closed, or thereabouts. While we received enough rain during the month (2.66″) to bring the lake level up a total of 10.8″ it still fell 3.00″ (at the rate of about 1/4″ per day) over the course of the month because more water than required to supply the minimum flows is being released from the lake (see: Minimum Flows Explained). The net result was that the lake started out the month at 45.60″ below the top of the dam and ended up only 7.8″ higher, at -38.52″ below the top of the dam. While this is an improvement over the abysmal lake level we suffered with all summer, it is still way too low: the lake is currently almost a foot and a half lower than it really should be this time of year, going into freeze up.

And that’s a pretty important foot and a half of water that is still missing, as the pictures at left will show. I took these yesterday. While the channel is now full and the water has overflowed the channel banks some, most of the 300 acres of wetland at the outlet end of Clary Lake is still high and dry.

The only good news to report I suppose is that after a very dry summer and fall, the runoff multiplier is back to something approaching normal (4X) indicating that ground water supplies have been largely replenished from recent rains. That said, we haven’t fully caught up yet. With only 32″ of precipitation to date, we’re still about 7″ below normal and I doubt in the next month we’ll reach the annual average of 44″ for our area.

26 November 2015: Happy Thanksgiving from the Clary Lake Association

imnotaturkey Wishing everyone a Great Thanksgiving!

25 November 2015: Full Moon rising over Clary Lake captured on Clary Cam2

I mentioned to David Hodsdon earlier today that tonight’s full moon was going to rise on a true azimuth of about 68.7° or about 10° to the left of the current edge of the field of view of Clary Cam2. David decided to adjust where the camera pointed this afternoon so as to capture the full moon rising. The picture at left is the result. The moon doesn’t rise in the same place each month. The point at which it crosses the horizon on it’s way up moves towards the north in the summer and fall and back towards the south in the winter and spring. By next June it will be rising over the State boat launch as seen from the location of Clary Cam2.

There are a few more pictures of this moon rise in the Webcam Picture Gallery. It’s possible that Venus, Mars, and Jupiter will be visible tomorrow morning about 4:30 AM. I won’t be up then but Clary Cam2 will start taking pictures at 4:00 AM. We’ll see what it captures.

17 November 2015: New Clary WebCam added to the site

Clary_Cam2

We now have a second web camera on Clary Lake! David Hodsdon decided he wanted to set up a web camera on his own shoreline so he bought one and today we got it hooked up and running. It’s identical to mine which made the back-end setup a breeze. The new camera is designated Clary Cam 2 (the original is Clary Cam 1) and it is attached to a tree on the shore about 150′ east of Hodsdon’s Point and it is looking directly towards the State boat launch which bears just about exactly East South East (114° True) from the camera. This means it will be capturing sunrises in the fall and spring as well as the occasional moon rise. Like the original camera, this one uploads a picture to the website every 2 minutes from 4:00 AM until 9:58 PM every day and 7 days worth of images are stored in an archive that you can peruse with a browser.

I’ve made a new Clary Lake WebCams page that shows both current camera images side by side. You’ll find the page listed under the Pictures navigation menu heading. You can click on the pictures for full sized versions, or you can click on the Camera link at the top of each image and go to that camera’s own page.

Both cameras allow people to login to them to view remote, real-time video. See the individual Camera pages for Clary Cam 1 or Clary Cam 2 for instructions.

Meeting Reminder: Property Tax Abatement Information Meeting this Tuesday 11/17

[dropcap]Just[/dropcap] a quick reminder that the Whitefield Select Board will be holding an informational meeting at 6:00 PM this coming Tuesday November 17th for people who filed property tax abatement requests this past fall. The meeting will be held at the Whitefield Fire & Rescue building, Townhouse Road (map). This Select Board sent a letter last week to interested parties which was posted here (see below).

10 November 2015: Whitefield responds to Clary Lake shore owner abatement requests

[dropcap]The[/dropcap] Whitefield Select Board is sending the following letter to Clary Lake shore owners that filed property tax abatement forms recently. According to the letter, all the abatement requests were made too late to apply to the 2014/2015 tax year, a mistake I expect will be easy to remedy. It does appear that the Whitefield Board members are being proactive and showing concern and understanding for the situation faced by Clary Lake shore owners.

Whitefield_abatement_response_11-10-2015