Author Archives: George Fergusson

24 August 2013 Lincoln County News: Montsweag Dam inspection report is in

finger-in-dikeDavid Hodsdon sent me an article from last week’s Lincoln County News about a recent inspection of the Montsweag dam in Wiscasset. The inspection was conducted by Wright and Pierce Engineering Company. Of particular interest is the last paragraph which describes the permitting requirements for the making the repairs:

“The inspection report of the dam indicates the repairs discussed in the report would be exempt from DEP regulatory permitting under the Maine Natural Resources Protection Act providing the activities do not require dredging of sediments and all improvements will take place within the footprint of the dam. Should dredging activities or other improvements change the dimensions of the Dam below the high water mark it would require review and permitting with both the Maine DEP and the Corps of Engineers, according to the inspection report.”

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23 August 2013 [UPDATED] Branch Pond Water Level Petition Public Hearing

img_3711-mediumI went to the Branch Pond water level petition public hearing today and ended up spending most of the day there, and took a few pictures which I’ve uploaded to the Summer 2013 Album. I had not initially planned on staying too long but I had particularly wanted to hear Peter Newkirk of the Division of Environmental Assessment give his presentation and that turned out to be after lunch. He was there primarily to explain how he came up with the 1.7′ maximum annual fluctuation figure, and to defend it if necessary. No defense was necessary as nobody really questioned it. I was actually surprised there wasn’t more discussion about it. I finally left around 3 PM at which time the hearing was beginning to wind down.

I found the whole hearing interesting and I’m glad I went. It was particularly interesting to compare it with our own public hearing: this one started at 9 AM and was scheduled to run until 5 PM and be followed by a public comment period starting at 6 PM. Furthermore, all the testimony had been pre-filed, commented on, objected to, and ruled on DAYS BEFORE today’s hearing. Today was to allow the presentation of the testimony and evidence with opportunity for review and cross examination in real time. For comparison, our hearing started at 5 PM and ran for 5 1/2 hours and was over, and there were a number of people who didn’t get a chance to speak at all. I was even cut short in my testimony. Clearly, DEP learned a lot from the Clary Lake hearing process and have implemented improved procedures. Someone had to go first and I guess it might as well have been us paving the way.

Surprisingly, there were no representatives of the press there.

[UPDATE] OK, so there were representatives of the press there, Channel 13 News apparently sent a crew over likely late afternoon after I had left:

http://www.wgme.com/news/top-stories/stories/wgme_vid_18429.shtml

23 August 2013: Branch Pond Water Level Petition goes to Public Hearing Today

talking-heads-customBranch Pond Water Level Petition goes to Public Hearing today, the hearing is at the China Elementary School in China on Route 9. The hearing starts at 9 AM and runs ALL DAY and into the night with the public-comments section starting at 6 PM. I’m going to attend it for a while this morning but I have some other responsibilities to attend to later in the day.

 

21 August 2013: Algae Bloom Update

dead-blue-green-algae-21august2013There was a thick green scum driven up against my dock this morning by the gentle current flowing around the lake, it is the carcasses of the cyanobacteria (blue-green algae) that were blooming a few weeks ago. As they die they float to the surface and get driven towards the shore where they collect. Dying cyanobacteria also release various toxins into the water. In high enough concentrations these toxins can kill fish and other wildlife. It’s not that bad here on Clary Lake but it does make for an unpleasant if temporary condition.

This is the end of this algae bloom but I would not be surprised given the hot weather and excessively low water conditions to see another bloom later this fall- typically they’ve been appearing in September or early October.

20 August 2013 Kennebec Journal Article: DEP says no timetable on Clary Lake water level decision

newspaper_bw-customPaul Koenig has written an article that appears in today’s Kennebec Journal. I was interviewed for the article late last week.

DEP says no timetable on Clary Lake water level decision

The notion that a “historic” mill building located down stream from and designed to accommodate the outflows from Clary Lake and use them to generate power should after over 100 years suddenly be at risk from high water damage is bad enough. Concluding that the water level of Clary Lake should be drastically lowered so as to severely restrict outflows to protect this building is just wrong. To then impose these flow restrictions on the dam property via restrictive covenants is ludicrous.

The mill pond dam head wall leaks and the original outlet weir has been filled with concrete, severely limiting the amount of water that the mill pond can accommodate. These issues were pointed out in a 2003 engineering study conducted for Pleasant Pond Mill LLC, the original owner of the mill property. The study recommended reopening the original outlet weir. This step has not been taken.

The KJ provides opportunity for people to comment on articles. I recommend you do so.

18 August 2013: One Year Anniversary of the Water Level Petition Public Hearing

one-year-laterYesterday was the one year anniversary of the Public Hearing for the water level petition, held on August 17, 2012 at the firehouse in Jefferson. So much has transpired since then, it really seems a lot longer but it has been just a year. This seems like a good time to take a step back and consider where we are and what has transpired. Clearly we are a lot closer to a getting water level order on the Clary Lake dam but I can’t say as I’m particularly happy with how it’s gone. Sadly, the rhetoric around this issue has been ratcheted up by both sides and that has not been particularly helpful either. Going forward I’m going to do what I can to keep things more civil.

While we’re closer to getting a water level order, is a real solution to this mess that more or less satisfies everyone involved still a possibility? What does a real solution even look like now? I believe the answer to those questions are Yes, and I don’t know. I remain open to a dialogue. We will see what happens.

Barring unforeseen events, this will be my last post for a couple of days until after the move. Be well everyone.

17 August 2013: Planned Site Migration

computer_repairI’m going to be moving the site to a new server in a few days. The picture at left is misleading, the site actually runs on a VM (virtual machine) in an IT operations center someplace on the East coast and we’ll just be moving to another VM in the same operations center. There shouldn’t be any down time to speak of but there may be 10 or 15 minutes that the site is unavailable while the DNS updates. I’ll post an update ahead of time.

17 August 2013: Metaphyton growth on the rise?

metaphyton-01-august2013Many of you heard David Hodsdon talk at the Annual meeting about Metaphyton algae, those green clouds of cotton-candy-like algae that seem to move around the lake. They’re unattached and drift with the winds and current. I spotted some growing on my shoreline a few days ago and the patch has grown considerably since then. The bright green is where the algae has reached the surface. There are numerous smaller patches. Clumps of this stuff can get pretty large but there’s no indication that Metaphyton growth is becoming a problem, but it is an interesting phenomena for sure.

15 August 2013: Observations on PPM and AQF Comments

thinkerI’ve had a chance to reread and ponder (like the chump at left) the comments posted by Tony Buxton today and I have a few observations to make before I move on. First, very little of the document has anything to do with the actual restrictive covenants themselves, which is what this exercise was all about I think. In fact, only one paragraph on the first page addresses them at all. I particularly like this part:

1. Declaration of Restrictive Covenants:

“As consideration for PPM agreeing to be bound by the Restrictive Covenants, AQF agreed to waive certain of the claims it may have had prior to adoption of the Restrictive Covenants against PPM for damage from flows of water in excess of 50 cubic feet per second.”

So we’re to believe that Richard Smith coerced Paul Kelley into agreeing to be bound by the covenants in exchange for waiving the right to press claims he “may have had” (or might not have had?) for high water damage to the mill building. Really?

Buxton offered no rebuttal of my assertion that Kelley’s Covenants are invalid and will have no effect on the ability of the Department to place and administer a water level order on the Clary Lake dam. The rest is of no consequence.

15 August 2013: [UPDATED] Response of PPM and AQF to Procedural Order 8

bamboozleThis just in to the Service List: Tony Buxton himself has responded to the request for comments in Procedural Order #8 and I’m posting it only having skimmed it. So far, I like mine better.

OK so I’ve had a chance read Mr. Buxton’s comments carefully, several times. I still like mine better. I can only imagine how Ms. Parent will enjoy reading this.

15 August 2013: Petitioner’s Comments on Kelley’s Restrictive Covenants

bugsMoments ago I posted the Petitioner’s Comments on the Restrictive Covenants that Paul Kelley recently placed on the Clary Lake dam to the Service List. I can’t wait to see what Kelley comes up with. I mean, I am holding my breath. I am on the edge of my seat. I am- Oh well, you get the idea. If Kelley follows his standard procedure and waits till the last minute, we can expect them sometime shortly before 5 PM. So hours to wait, ho-hum. No need to guess what I think of these covenants, here are my comments:

And no, there’s no particular significance of a Bugs Bunny thumbnail on this post. I just happen to like the little guy.

15 August 2013 Lincoln County News: DEP and DLWA discover hydrilla outside Cranberry Cove

2009hydrillacroppedneansAn article in this week’s Lincoln County News reports that the DEP and DLWA (Damariscotta Lake Watershed Association) representatives have found the invasive plant hydrilla outside the cove in which they had hoped it had been confined. Hydrilla which is one of the most notorious of the invasive plant species found in Maine was discovered in Damariscotta Lake some years ago. Efforts have been underway to confine and remove the plant. This is the first time the plant has been found outside the confinement area since 2009. The thumbnail at left is a stock photo of hydrilla which looks a lot like the common, non-invasive plant of species Elodea which is found in Clary Lake.

DEP and DLWA discover hydrilla outside Cranberry Cove

This is disturbing news because Damariscotta Lake is only a few miles down the road. We’ll be posting more information about invasive plants in the very near future.

14 August 2013: Avian Haven Loon Update and about that dead loon from last summer…

img_2173__medium_I got an email update from Diane at Avian Haven today reporting that the loon they’re taking care of is showing signs of improvement and an added surprise- she was able to track down some information about the loon that turned up dead over by the shore by Hodsdon Lane last year in July (picture at left). I had mentioned to her that we’d found a dead loon and that it had been sent to Tufts University but we hadn’t heard back anything. At the time my State Wildlife Biologist friend Keel Kemper told me that Loon-on-Loon fighting was a common cause of loon mortality. It would appear that was the case with the bird from last summer.

George — I am happy to report that your loon lived the night and is showing slight improvement today.  She had refused fish yesterday afternoon, but ate quite readily this morning.  She is also spending more time in the water and less time on the haul-out.  She is still quite lethargic, preferring to drift quietly rather than swim around (much less dive),  but we are seeing some signs for the better, and are hopeful that they will continue. 

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13 August 2013: Loon crash lands on Route 215, ends up at Avian Haven

Loon RestingI got a phone call today while making lunch that made me turn down the radio and ask if I’d really heard what I thought I heard. Jack Holland called to tell me that his son Taylor and a friend had found a loon that had been “hit by a car” somewhere over by the State boat launch. I grabbed my camera and headed over but I was looking for someone with an injured loon on the side of the road, not a concrete forms truck parked in the driveway leading to Clary Knoll Farm. I should have stopped to ask because that was them. Jack called me again and confirmed that was them so I headed back over and found they had just made the hand off to some volunteers from Avian Haven, a wild bird rehabilitation center in Freedom. The bird had been found sitting in Route 215 near the end of the Sennott Road.

I spoke briefly to the people who had come to pick up the bird but they had already put it in the back of the car and obviously wanted to get going. They told me to contact Avian Haven. I did when I got home, sending them an email. I received the following response a bit ago: Continue reading →

13 August 2013: Lake Water Quality Update

secchi_diskDavid Hodsdon reports that the lake water quality has improved from 2 weeks ago when an algae bloom was rapidly developing. The secchi disk reading at 9.84′ was almost double the last reading and they observed “particulate matter” on and just under the surface which undoubtedly the decaying carcasses of the blue-green algae that were causing the bloom. I’ve updated the Clary Lake Water Monitoring Data page with the data David and Jack collected yesterday.

Speculating wildly, it is likely the cooler weather and slightly lower water temperature that brought about the demise of the cyanobacteria. We’re not out of the woods yet; the most serious blooms we’ve had in recent years have been in late August and September.

12 August 2013: DEP Procedural Order #8 Issued

dep-logo-customThe Department wasted no time in addressing my submission last Friday of Kelley’s Covenants, issuing this afternoon Department Procedural Order #8. The Order is short and sweet as is the time given for comments: 3 days. The Order included an updated Service List, a copy of my email, and  all 17 pages of the Declaration of Restrictive Covenants. The Order proper is short:

On August 9, 2013, GEORGE S. FERGUSSON, spokesperson for the petitioners, submitted to the Department correspondence stating that a flow restriction of no greater’ than 50 cubic feet per second had been placed upon the Clary Lake Dam. As support of this statement, Mr. Fergusson submitted a Declaration of Restrictive Covenants, which was stamped as recorded on August 5, 2013 at the Lincoln County Registry of Deeds in Book #4696 on Page #59.

Future Course 0f Proceeding:

Parties may submit written comments on this documentation to the Department no than August 15, 2013. Comments must be copied to all parties on the Service List.

DONE AND DATED IN AUGUSTA, MAINE, THIS 12th DAY OF August, 2013.

DEPARTMENT OF ENVIRONMENTAL PROTECTÍON

Heather L. Parent, Presiding Officer and Policy Director

Here’s a copy of the order:

L22585BN_Procedural Order_8.pdf

12 August 2013: Your Association dues are (over) due!

join_or_renew_todayOur treasurer Linda Gallion tells me that she’s received only 44 membership renewals so far this year. The majority of our members pay up at the Annual meeting but this year a number of people showed up for the meeting but must have forgotten their checkbooks. It is not unusual for membership renewals to trickle in for a while after the annual meeting. It’s not too late! Dues are $25 and you can sign up online if you want.

For an Association pep talk, check out our Benefits of Membership page or go directly to the Signup or Renew your Membership Online page. Our membership year runs from annual meeting to annual meeting.

09 August 2013: Fergusson appeals to Department (again) to dismiss Kelley’s petition

dead_endFor the second time I have written a (lengthy) letter to Kathy Howatt, the DEP staff person in charge of Kelley’s petition for release from dam ownership or water level maintenance, requesting the Department dismiss Kelley’s petition with prejudice immediately. I’m sure they won’t, at least not immediately but when the 180 day consultation period arrives around the end of September and Kelley waltzes into Kathy Howatt’s office and says “I’m here for my breach order” I am confident he will get sent packing with instructions to go home and not come back. You can only get away with so much in this life. Eventually your actions catch up with you and so too they will catch up with Kelley. He’s about out of road.

I copied the email to a bunch of other people. I am not going to post my letter on the website however because I don’t want to give Kelley the satisfaction of reading it. Kelley can request a copy from Kathy Howatt if he wants; I’m not going to give him one. Not surprisingly, Kelley is one of the most frequent visitors to this website. Hardly a day passes that he doesn’t come on the site, review recent posts and check out the water level charts.

If anyone else wants a copy, email me and I’ll be happy to send you one.

09 August 2013: Fergusson notifies Petition Service List of Kelley’s Covenants

time-running-out_0I just sent the following email to the Clary Lake water level petition Service List notifying everyone of what will inevitably turn out to be Kelley’s latest useless and futile move to hamstring the Department and usurp their authority. I also spoke this morning with Kathy Howatt, the DEP staff person handling Kelley’s petition for release from dam ownership. She was unaware that Kelley filed restrictive covenants on the dam property and she didn’t sound particularly happy to be finding out about it from me- grateful to be informed, but not happy. For Kelley, time is running out.

Hi Beth:

I want to bring everyone’s attention to a recent change in the legal status of the Clary Lake dam property representing Pleasant Pond Mill LLC’s latest attempt to usurp the authority of the Department of Environmental Protection. Last Monday afternoon, August 5th, Mr. Kelley recorded a Declaration of Restrictive Covenants at the Lincoln County Registry of Deeds in Book 4696, Page 59. In a nutshell: these covenants restrict the owner of the Clary Lake Dam (currently Pleasant Pond Mill LLC) and benefit the owner of the Clary Mill building (currently Aquafortis Associates LLC) such that if the dam owner allows more than 50 cubic feet of water per second to pass through and/or over Clary Lake dam they can be sued by the owner of the mill building for damages, legal fees, etc. These covenants run with the land. Continue reading →

07 August 2013: Kelley imposes Restrictive Covenants on self. Really.

From the “You can’t make this stuff up” department: In a blatant attempt to usurp the authority of the Department of Environmental Protection, Kelley has taken his efforts to confuse, complicate, and obfuscate matters to new, stunningly bizarre heights: he’s gone and imposed Restrictive Covenants on himself (and any future owner of the dam) benefiting Aquafortis Associates LLC (or any future owner of their property) such that no more than 50 cubic feet per second of water may be discharged through or over the Clary Lake dam. Ever. These covenants shall run with the land in perpetuity (that’s forever folks). Failure to comply with the terms of this declaration shall be grounds for an action against the dam owner by Aquafortis Associates LLC or their  successor in interest. In other words, the owner of the Clary Mill building can now sue the owner of the Clary Lake dam if they let more than 50 cubic feet of water per second flow out of the lake. Words escape me. Continue reading →