Author Archives: George Fergusson

12 August 2015: Kelley’s recent appeal dismissed from Lincoln County Superior Court

Picture of Paul Kelley taken at the 15 October 2013 Lake Shore Owner meeting. Lincoln County News photo

At the Clary Lake Association Annual Meeting back on August 1st I provided an update on the Clary Lake water level order and where things stand (see post: “2015 Clary Lake Association annual meeting a great success). During that discussion I described a July 24th filing in Lincoln County Superior Court by dam owner Paul Kelley which I had only learned about the day before. The filing consisted of an appeal of a recent DEP decision to dismiss his petition for release from dam ownership, and a request for mediation. At that time I suggested that the appeal might be dismissed because Mr. Kelley filed it himself without the benefit of counsel. As it turned out, at a conference held on August 4th, Lincoln County Superior Court Judge Daniel Billings did dismiss the appeal stating “Because the filing in this matter was made on behalf of an LLC by a non-attorney, this matter is DISMISSED without prejudice.” One would have thought Mr. Kelley would have known that a lawyer is required when a Limited Liability Company (LLC) is involved in litigation in Superior Court. He certainly does now. Continue reading →

10 August 2015: Drained Beaver flowage adds water to Clary Lake

A funny thing happened over the weekend: the lake level which has been falling a consistent 1/4″ daily (due to evaporation only) had, without warning, risen 1/4″ by early Saturday afternoon without us having received any rain at all… This situation had me thinking I’d made a mistake in measuring the water level until I discovered early that evening that the marsh on the south side of Route 126/215 at the primary inlet to Clary Lake which had been recently flooded by beavers was draining into Clary Lake. The picture at left shows the inlet of the culvert well plugged by sticks and mud on Thursday afternoon with the water level less than a foot from the top of the culvert. Sometime early Saturday morning someone, most likely a Town of Jefferson work crew, brought an excavator to the site and dredged out the blockage. Continue reading →

July 2015 Water Level Chart archived

July 2015

I’ve archived the July 2015 water level chart. The most notable thing about it is that it shows the lake level fell to 60″ below the top of the dam on the 9th of the month and remained well below that mark for the rest of the month. It has never been this low for this long. And no wonder given how little rain we’ve received this year: as of July 31st we have received a total of only 15.29″ of precipitation since the beginning of the year. Last year on the same date we had received 29.74″ or almost twice as much. The lake level also fell to a 4 year record low of 62.64″ on July 18th (see 21 July 2015: A new high in lows“). It has since fallen even lower than that, ending the month at 63.48″ on the end of the month.

It’s been so dry this year and especially this past month that when it does rain, very little of it runs off into the lake because most of the precipitation that falls on the ground is being soaked up. This fact, in combination with the topography of the exposed shoreline around the lake, results in a runoff multiplier less than 1x meaning that an inch of rain will bring the lake up something less than an inch. This doesn’t really make sense until until you realize that as the lake level rises it also spreads out, increasing the area of the lake. In other words, when it rains the lake gets bigger, not so much deeper. We’ve seen this phenomena before. How cruel is that?

Because of the berm at the outlet of the lake, very little water is actually leaving the lake now and flowing down the channel to the dam; most of the water that you see flowing out through the dam these days is seeping out of the ground in the meadow area itself, which is quite wet, and also coming in from Clark’s Meadow Brook. As a result, most of the ongoing daily drop in water level (about 1/4″ per day) is due to evaporation.

2015 Clary Lake Association annual meeting a great success

The 2015 Clary Lake Association Annual Meeting, and one of our better-attended meetings in recent years. Not sure of the exact head count but I think close 50 people showed up. The weather was perfect. That's Don Normam waving at the camera, Linda Gallion and the new treasurer-to-be Mary Gingrow-Shaw at the registration table counting money, and Butch Duncan standing next to Jeff French looking suspiciously at the camera. The meeting hadn't actually started when I took this picture. Photograph by George Fergusson 01 August 2015

The 2015 Clary Lake Association Annual Meeting, one of our better-attended meetings in recent years. Not sure of the exact head count but I think close 50 people showed up. The weather was perfect. That’s Don Normam waving at the camera, Linda Gallion and the new treasurer-to-be Mary Gingrow-Shaw at the registration table counting money, and Butch Duncan standing next to Jeff French looking suspiciously at the camera. The meeting hadn’t actually started when I took this picture. Photograph by George Fergusson 01 August 2015

The Clary Lake Association’s 2015 Annual Meeting was held on Saturday August 1st. The meeting was well attended, the attendees were engaged and attentive, our business was efficiently and satisfactorily transacted, the weather was fantastic, and the pot luck supper afterwards was outstanding. What more could we ask for? For those of you who couldn’t make it to the meeting, here’s a summary of what went down.

First off, minutes of the 2014 annual meeting and April 1st, 2015 Special Membership meeting were presented and approved, and have been posted on the website. There were also 2 main articles on the agenda to be voted on. Article 1 (with 2 questions) involved a number of changes to the Association bylaws and article 2 was a resolution to rescind a motion that had been passed at the 2013 Annual meeting. Both articles passed by wide margins with only 1 or 2 dissenting votes. The newly-revised bylaws have already been posted on the website. Of special note are the changes to the Membership and Voting rights definitions: Membership in the Association, formerly limited to Clary Lake shore property owners only, is now open to anyone who shares the goals and purpose of the Association and pays annual dues. Any member in good standing may vote on any matter brought before the Association. We believe that going forward this “inclusive” membership definition will better serve the goals and purpose of the Association and it’s members. Speaking of members, a number of people who have not been members before (or have not been members for a long time) have decided to (re)join the Association. Welcome, and thank you. Continue reading →

01 August 2015: Clary Lake Association Annual Meeting today!

I should have posted this a few days ago but better late than never: the Clary Lake Association’s Annual Meeting is today at 2:00 PM at the home of Ellis Percy and Joanne Tribby at 101 Old Madden Road in Jefferson. The weather looks like it will be hot, but dry. We have a very full agenda and would like to start on time, so if you haven’t already joined the Association or renewed your membership, please come early to avoid the rush. Also, there will be a potluck supper after the meeting so bring something to share, or just bring your appetite.

Here’s Page 1 of the agenda:

2015 Annual Meeting Agenda PAGE 1

If you have any questions feel free to call George Fergusson (549-5991) or Ellis Percy (549-7448). Hope to see you there!

31 July 2015: Another Lake shore owner complains to DEP

Jane Roy sent an impassioned email to Beth Callahan of the Maine Department of Environmental Protection the other day, and received a response from Ms. Callahan earlier today. Jane promptly posted both emails on the Clary Lake Association’s Facebook page but I thought they were worth re-posting here.

Jane Roy is a daughter of Stanley Whittier, a long time Clary Lake Association member who built his place on the lake way back in 1958. The Whittier property is located on the north shore of Clary Lake at the end of the Duncan Road in an area of the lake which as we know has been badly impacted by both low water and pond weed growth (see post “Duncan Road lake shore owners severely impacted by low water” and “Lake shore owners concerned about invasive aquatic plants“). I tied up at the Whittier’s dock the other day (in about 12” of water!) and spent a while talking with Stanley and his daughter Gail about the upcoming annual meeting, the low water conditions, the status of 80c proceeding in Lincoln County Superior Court, and various initiatives currently underway by the Clary Lake Association.

Before posting Jane’s email and Ms. Callahan’s response, I thought I’d comment briefly on this matter. First, I think Jane’s email was thoughtful and considerate and absolutely appropriate. Second, I felt Ms. Callahan’s response was honest and sincere, but understandably restrained: DEP staff has to be very careful what they say regarding an ongoing 80c proceeding. I’ll be somewhat less restrained and say that it is clear to me that both the Maine DEP and the Attorney General are actively engaged and aggressively pursuing a resolution of this matter in court and I am confident that we will ultimately prevail. So take heart people: it is only a question of when, not if, DEP will initiate aggressive enforcement action against the dam owner. Also, the Clary Lake Association is well aware of the fact that other parties besides DEP can take enforcement action. This and other initiatives will be discussed at tomorrow’s annual meeting.

Here are the emails:

From: Roy, Jane [mailto:Jane-Roy@idexx.com]
Sent: Wednesday, July 29, 2015 4:01 PM
To: Callahan, Beth
Subject: Clary Lake – Please Help Us?

Hi Beth,

I just left you a voice mail at your 446-1586 number.

Please call me and help me understand why nothing has been done to
enforce the Lake Level order. Our Lake is all but gone now.

I cry each time I go to the Lake and watch it disappearing. We all are.
I can’t sit back anymore and simply hope that George Ferguson and
the facts of this case will stand on their own merit. Another Summer
has come a gone with additional losses of acreage each year. In 2012
I sold my Sea Doo and bought a kayak because of this mess. I ran aground
in my kayak in the middle of the lake this year. Is this ok? I think not. Continue reading →

29 July 2015: North Shore Clary Lake Video

Published: 29 July 2015

The north shore of Clary Lake in the vicinity of Duncan Road has been severely impacted by the ongoing water level crisis. Now, with the lake level 63″ below the top of the dam, the water has receded over 100′ from where it would normally be this time of year. How long will this be allowed to continue?

28 July 2015: Duncan road lake shore owners severely impacted by low water

Duncan Road, north shore. The water level in this picture was 63″ below the top of the dam. Photograph by George Fergusson 28 July 2015

Everyone around the lake has been impacted by the Clary Lake water level crisis to some extent, some more than others depending on the nature of their shoreline. However, it is hard to believe the conditions the people over by Duncan Road on the north shore of the lake have been putting up with going on 4 years now. I had been over that way in my boat a few times earlier this year, but I never got too close to shore because of shallow water. I knew that the lake had receded quite a bit, but I really was not prepared for what I found today when I went over to look around. I drove over, parked, and walked around for almost an hour, taking pictures. It was a beautiful day, high summer in Maine, and not a soul to be seen. Nobody was there. No kids. No dogs. Nobody. And no wonder: it’s not a place anyone wants to hang out any more. Continue reading →

21 July 2015: Lake level reaches a new high in lows

I don’t need to tell anyone that the lake level is low, that much is obvious. However the lake is now lower than anyone has seen it in more than 54 years judging from a picture taken back in the summer of 1961, and that seems like something worth telling people about. On April 21, 2012 the lake fell to a then-record low of -62.53″ but as of the other day, the lake level had fallen even lower than that, to -62.64″ below the top of the dam, where it sits now. I went over to the State boat launch with my camera to take yet another picture of how useless it is and found the water level had fallen off the end of the ramp. Continue reading →

21 July 2015: Spider

Look what I found when I flipped my dock over the other day. That’s a finished 2×6 she’s sitting on which makes her oh… a little better than 3″ across. This picture really doesn’t do it justice. I can honestly say it’s the biggest spider I’ve ever seen.

18 July 2015: A few new historical photographs

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Captioned on back, “Harold and me. Henry Clary’s cottage, Clary Lake”. This is Harold and Inez Carpenter, my great uncle and aunt. Inez was my Great Aunt Belle Douglas’s sister. Submitted by Steve Giampetruzzi. Click for a larger version.

Steven Giampetruzzi has uploaded two pictures to the site of historical interest, they are undated but appear to date from the early part of the last century, sometime after 1910. One photo in particular has piqued my curiosity, it shows what is described as “Henry Clary’s cottage, Clary Lake” (at left). Does anyone know where this might have been located? Henry Clary lived and owned property in Jefferson but I was unaware also had a place on Clary. I would very much like to know where this place was located. Continue reading →

18 July 2015: Annual Maine Audubon Loon Count nets 1 Loon, 1 new rock

The Annual Maine Audubon Loon Count was today. The loon count takes place for 1/2 hour between 7 am and 7:30 am on the third Saturday of July. On this day people all over the state hit their lakes in kayaks, canoes, and motor boats to count the number of Loons on the water. This year only 1 loon was seen on Clary Lake though 3 to 4 adults have been seen from time to time this spring. Needless to say, there are no nesting loons or baby loons this year. Mary and Ernie Shaw have been doing the loon count for quite a few years now. Mary will be giving a full report at the upcoming Annual Meeting.

Usually Mary and Ernie have their 16′ boat in the water, and they can usually be seen most pleasant evenings taking a slow and leisurely sunset cruise around the lake but this year there wasn’t enough water at the State boat ramp for them to launch their boat. For that matter there isn’t enough water on their shoreline for them to put in their dock either, so to conduct today’s loon count they asked me to take them around in my 14′ boat. During the loon count I managed to find a new rock on the north side of the lake off the point at the end of Duncan Road, in an area that I thought was plenty deep enough, and free of hazards. I was wrong. There are 2 buoys off the point marking shallow water ledges, and I had given them what I thought was a sufficiently wide berth. Fortunately I was not going too fast and my motor was not locked down so no serious damage was done, but my propeller got bent. I will have to pull it and file and reshape it before heading out again.

10 July 2015: Declining water quality, by the numbers [UPDATED]

Get ready for an algae bloom. Jack Holland and I went out and conducted our regularly scheduled water quality monitoring today and the secchi disk reading was only 2.50 meters (8.20′), down from 3.16 meters (10.36′) just two weeks ago. A lake is considered to be experiencing an algae bloom when the secchi disk reading is 2.0 meters or lower. We’re within only 1/2 a meter (1.6′) of that threshold now, and it’s only July 10th. Last year on the 18th of July the secchi disk reading was 3.25 meters (10.66′) and we didn’t approach the 2.0 meter threshold until almost the end of July. We’re good two to three weeks ahead of last year.

I’ve noticed over the past 4-5 days the lake color has gotten decidedly murky and brownish/green but I was still surprised the secchi disk reading so low. I probably shouldn’t have been given how dry it’s been and how low the lake is as these factors contribute to conditions conducive to the growth of filimentous cyanobacteria (aka blue green algae) which are responsible for algae blooms. Once the conditions are right for cyanobacteria to start multiplying, their growth can be explosive.

We’ll take a water sample for phosphorus testing during our next water quality monitoring session in 2 weeks. Phosphorus tests cost $25 a pop to get them analyzed by the State so we usually only do 3 tests per year.

[UPDATE: 7/14/2015] Based on the latest secchi disk reading taken about 1/2 hour ago, Clary Lake is officially having an algae bloom. The reading was 1.95 meters (6.40′). As mentioned above, a reading at or below 2 meters is considered to be an algae bloom.

08 July 2015: Lake shore owners concerned about invasive aquatic plants [UPDATED]

Last week I noticed some large and extensive mats of a green pond weed over by my shoreline in about 2′-3′ of water, thick enough to foul my trolling motor and bring my boat to a halt. I collected a sample and identified it as Elodea or American water weed (or Common Pond Weed). I was therefore not particularly surprised when Thomas Gillette showed up at my house yesterday with a shopping bag full of this plant, concerned that Clary Lake might have an invasive plant infestation underway. Thomas told me that Butch Duncan had brought it to him, saying that there were thick mats of it over in the cove on the north side of the lake by Duncan Road.

I reassured Thomas that this was not an invasive species. We’ve had this plant growing in Clary Lake forever but it’s always remained under control. You’d see a few pieces of it wash ashore from time to time or you might see patches of it up in the channel. Recently however, conditions around the lake have become quite conducive to this plant’s rapid growth in areas where it was not found before. Elodea is not a recognized invasive plant species but under the right conditions it can and does become a nuisance, clogging shallow water areas with thick mats of vegetation. Elodea likes nutrient-rich water down to several meters (5′-7′) in depth, plenty of sunlight, water temperatures between 10° C and 25° C and a soft, silty or muddy bottom where it’s thin wiry roots can get a good foot hold. You won’t find Elodea on a rocky or gravel bottom. With the water level down 5′ and 50% of the volume of the lake gone, conditions around Clary Lake are near perfect for this plant’s growth to explode: the reduced lake volume increases the concentration of nutrients in the water and the lowered lake level allows sunlight to reach down to silty/muddy areas that would normally be under 7′ to 10′ of water where Elodea wouldn’t normally be found, or be able to survive. Now our shallow water areas are a perfect habitat for Elodea.

Continue reading →

08 July 2015: State files motion to dismiss with Lincoln County Superior Court

On Monday 06 July 2015 lawyers with the Maine office of the Attorney General on behalf of Maine DEP filed a motion to dismiss All of the Independent claims in the petition and All Claims raised by Petitioner Pleasant Pond Mill LLC (PPM). This leaves claims raised by Aquafortis Associates LLC (AQF) as the only claims the State feels are worthy of the court’s time (i.e., counts I-V of the original appeal dated February 26, 2014). This motion to dismiss was made in response to the Court’s Procedural Order dated 02 June 2015 which gave the State 5 weeks to file their motion. The deadline to file was July 7th. The plaintiffs have 5 weeks to respond to the State’s motion.

While not a routine procedure, it is still relatively common for a respondent (in this case the State, representing DEP) to file a motion to dismiss part or all of a petition they feel is irrelevant, frivolous or outside the jurisdiction of the court and not worthy of appeal, especially when the plaintiff (in this case, PPM and AQF) has filed a petition that includes Heaven and Earth, including the kitchen sink. So that’s what this filing by the State is intended to do: get rid of the counts they feel are irrelevant and frivolous so the Court doesn’t waste its time on matters that aren’t relevant to the case.

Continue reading →

June 2015 Water Level Chart archived

6 waterlevelchart_June2015 I’ve archived the June 2015 water level chart. The lake level remained in a fairly tight range for the whole month, fluctuating only ± 3.7″ and ending up the month a little off its lows at -57.36″ below the top of the dam. It fell to 62″ below the top of the dam on June 20th, only the second time in 4 years it has gotten that low. In comparison, during the month of May the lake level fell precipitously at over 1″ per day, for the entire month. Despite the above average amount of rain we received in June (5.46″ compared to an average of 0nly 3.54″) the lake level remained largely unaffected because so much of the precipitation soaked into the ground rather than running off into the lake. As a result, the runoff multiplier was closer to 1X to 1.5X rather than the normal 4X multiplier. May’s rainfall total was so far below average (only 0.60″ compared to an average of 3.7″) that even with all the rain we received in June, we’re still several inches below normal.

The state boat launch remains largely unusable except for carry-in traffic and small boats if you’re able to manhandle them on and off their trailers and are willing to drag them across the rocks and shallows to get to and from deeper water; not many people are. I’ve seen a number of vehicles pull into the launch area with boats on trailers only to leave after seeing exposed rocks off the end of the ramp. Can’t blame them. As a result, boat traffic on Clary Lake this summer is noticeably below normal. Anyone who does manage to get their boat launched has to contend with shallow water and rocks where you least expect them. Only a few of the hazards are marked, leaving vast areas too shallow for safe boating to surprise the unfamiliar boater.

There is ample evidence around the lake of the impact of the ongoing severely low lake levels besides an unusable boat launch, and rocks sticking out of the water. As a result of fluctuating water levels, the loons that call Clary Lake home have not even bothered to try nesting this year, or last. Their last successful nesting attempt was back in 2008. Even more damaging to the ecosystem is the loss of 350+ acres of sensitive, high-value wetlands and the shallow-water littoral zone around the edge of the lake so important for lake health and for bird, fish, and animal habitat. Gone.

30 June 2015: Kelley’s appeal of Petition for Release Dismissal to BEP rejected

Paul Kelley standing in front of the Clary Lake dam. Photograph by George Fergusson, 8 August 2007

You will recall that last May the Maine Department of Environmental Protection returned Pleasant Pond Mill LLC’s (PPM) Petition for Release from Dam Ownership or Water Level Maintenance (see 18 May 2015 news post) citing various reasons including questions of right, title and interest in the Clary Lake dam property resulting from provocative statements made by Mr. Kelley in mediation, and the August 18, 2015 dissolution and subsequent March 26, 2015 cancellation of PPM as a Maine corporate entity. The Clary Lake Association (CLA) had recommended such action in a legal brief filed with DEP on April 7th by their attorney, Mr. Ronald Kreisman of Portland. At that time it was expected that Mr. Kelley would appeal the Department action. On June 15, 2015 Mr. Kelley did just that, filing an appeal (along with a request for a public hearing) with the Board of Environmental Protection (BEP). However, in a letter dated June 24, 2015, the chairman of the BEP, James W. Parker, informed Mr. Kelley’s that the Department’s return of PPM’s petition for release of dam ownership or water level maintenance was a “procedural action” taken by the Department during processing of the petition and did not constitute final agency action and as such is not subject to appeal to, or review by, the BEP. The Board chairman went on to say that the owner of the Clary Lake dam “may elect to document its ownership and submit (or re-submit, as the case may be) a petition pursuant to 38 M.R.S.A. § 901(1) for consideration on the merits.“

Continue reading →

Summer 2015 Newsletter is in the mail

The Clary Lake Association’s Summer 2015 Newsletter is in the mail. It went out a little later than intended, we’d hoped to get it mailed towards the end of May rather than the end of June but better late than never I always say. The newsletter is sent to all Clary Lake shore owners regardless of whether they’re Association members or not. We added an extra page to this year’s newsletter to accommodate a larger than usual Clary Lake water level order update, necessary because of how much has transpired this past year. Also for the first time since I’ve been doing the newsletter that we have sold some advertising in an effort to defray production costs.

A few items that normally appear in our newsletters didn’t make it into this issue due to space constraints. These include information about the annual Maine Audubon Loon Count and a water quality update. This year’s loon count will take place on Saturday July 19th for 1/2 hour between 7:00 am and 7:30 am. Mary and Ernie Shaw will be doing the count though if the lake level doesn’t rise enough for them to launch their boat in the next few weeks they may be using my boat to do it. For up-to-date information about the water quality of Clary Lake, check out the Clary Lake Water Monitoring Data page which is updated roughly every 2 weeks during the boating season.

Summer 2015 Newsletter

The newsletter is sent to all Clary Lake shore owners, not just Association members. Our mailing list currently consists of about 140 names including some interested parties who do not own property around Clary Lake. If you’d like to be on our mailing list, send an email to info@clarylake.org and include at least your name and address and preferably also a phone number and email address.

19 June 2015: New Legislation to affect people considering a water level petition

DEP Commissioner Patricia Aho testifying before the Environment and Natural Resource committee. I was there for a work session on LD 1244, “An Act To Amend Environmental Permitting Standards”; the Commissioner was actually testifying on a different bill at the time, she did not comment on LD 1244. Photograph by George Fergusson, 29 April 2015

The Maine Department of Environmental Protection introduced proposed legislation this past spring entitled “An Act To Amend Environmental Permitting Standards.” The proposed legislation, designated LD 1244 and sponsored by Republican Senator Thomas Saviello, was turned over to the Committee on Environment and Natural Resources (ENR) of which he is co-Chair, on Apr 7, 2015. The main thrust of the legislation had to do with changes to the application and permitting process for wind power and micro hydro projects, but sections 10 and 11, tacked onto the end of the bill, were proposed changes to Title 38 MRSA §840 otherwise known as the Water Level Law. This is the law that governs the water level petition process including a requirement for an adjudicatory hearing. This Maine Legislature Information Page has links to everything pertaining to LD 1244.

I first became aware of the bill on April 24th, a few weeks after it was introduced, and I developed an immediate interest. I didn’t initially feel the need to bring it up on this site because the proposed changes to the law would not affect the Clary Lake water level order, which is already issued, though not yet enforced. However I believed the changes would have a profound impact on other parties contemplating their own water level petitions and so decided to take a stand on the issue. Though I missed the initial work group session where the ENR Committee solicited public testimony, I did attend a subsequent work group session, submitted written comments on behalf of the Clary Lake Association, and was given a brief opportunity to speak on the bill despite the time for public testimony having already passed. I am grateful to both chairs of the committee, Senator Saviello and Representative Welsh, for this opportunity. I believe the Committee heard what I had to say.

The changes requested by the Department included requiring mandatory mediation before any member of the public could file a petition, which I actually thought was a fine idea, but I felt the language was way too loose and needed to be tightened up. In addition, the Department wanted to raise the application fee to cover the actual costs of conducting an adjudicatory hearing. The original language of Section 11 as initially proposed is as follows: Continue reading →