Things have been so busy around here that I never bothered to look at the letter to the editor I wrote in regard the article about Frederick Duncan and his water level wishes. I sent my letter in back on the 1st of April. It appeared in the 04 April 2013 edition of the Lincoln County News. From the For What It’s Worth department, here it is:
Author Archives: George Fergusson
13 April 2013: Low Water having an impact on wetland vegetation
one that looks quite like this; then again, the other Yellow Pond Lily rhizomes I’ve seen were more mature, much larger and long, several feet or more in length. Perhaps this is what they look like when they’re young and just getting a foot-hold (pun intended) in the marsh. I’ll bet that’s it. Here’s a picture of the underside of the root. 
There have been quite a few of the Yellow Pond Lily rhizomes getting washing up on the shore, more evidence of the impact the low water conditions are having on the sensitive wetland habitat around Clary Lake. The low water conditions exposes the roots to the elements and ice and rain erodes the soil holding them in place. Then they wash into the stream and float away. I’ve posted pictures here before of these rhizomes. Here’s a picture of some that floated down stream to collect at the dam. I’m half inclined to see if these can be collected and replanted. Seriously.
11 April 2013: LCN Article: Clary Lake Dam owner seeks ability to sell
A Lincoln County News article on the Pleasant Pond Mill LLC Petition for release from dam ownership has appeared in this weeks paper. It does not appear to be online yet so I’ve scanned and posted it here:
Clary Lake Dam owner seeks ability to sell
It covers a lot of ground other than the petition for release from dam ownership including the recent release of the Division of Environmental Assessment’s minimum flows recommendation and the FOA request that as it turns out was filed by the mystery people behind Aquafortis Associates LLC.
Filing this under categories News, Petition News, and That Other Petition, a new category for… that other petition.
10 April 2013: Site News- New Comment System
So I’m trying out a new comment system that allows people to use their facebook, twitter, or WordPress accounts to login to comment. If it turns out to be popular (or at the very least, not a problem) then we’ll keep it. If however it results in nuisance comments and other irrelevant garbage being posted and ends up wasting my time, it’s outa here. This option has been available to me for a while but I never really considered setting it up until I saw the referrer report. I am just now taking a look at it.
There are a few caveats: It seems to work with most browsers (I’ve tried it with 3 different ones) but you need to have your browser set to accept 3rd party cookies. C’est la vis. I don’t like it but that’s how it works.
Another downside (from my point of view) is that as long as you leave an email address and a name, you can leave a comment. This increases the opportunities for comments (which is good) but increases the likelihood that I’ll be dealing with bogus users posting bogus comments. New user comments won’t appear until approved so I’m not really worried inappropriate content appearing on the site, but as I mentioned above, if I find myself wasting time dealing with garbage comments, we’ll go back to the original system.
If anyone has any questions or encounters any problems with the new comment system, send me an email.
11 April 2013: A little more about inter-local agreements and a few samples
Back in 2007 when I became president of the Clary Lake Association and first got involved in trying to resolve the Clary Lake dam issue, Dana Murch of the DEP sent me 3 inter-local agreements from towns around Maine to look at. I dug them out of the file they were in yesterday, scanned them, and have posted them to Google Drive:
- Belgrade Lakes inter-local agreement
- Sabattus Pond inter-local agreement
- Gardiner New Mills Dam inter-local agreement
They vary in complexity from the Belgrade Lakes 4 page inter-local agreement between the towns of Belgrade and Rome to the Gardiner New Mills Dam 14 page inter-local agreement between the City of Gardiner and the towns of Litchfield and Richmond. None of them happen to involve a non-municipal 3rd party such as a lake association but that doesn’t mean it couldn’t happen.
I remember reading about the flap surrounding Sabattus Pond back in 1999-2000, it caused quite a bit of controversy. Here’s an article from the Lewiston Sun Journal from October 13, 1999:
State: Agree on Sabattus Pond Costs or dam will be opened
I suspect that if the towns of Whitefield and Jefferson decide to look into this kind of arrangement that they could get assistance from the State in preparing an inter-local agreement and of course, the Clary Lake Association would be happy to participate.
10 April 2013: Pleasant Pond Mill LLC petition for release from dam ownership UPDATE
I went to the Whitefield Selectman’s meeting last night to listen to what they had to say about the Clary Lake dam issue. They discussed among other things the need for the town to hold a public meeting to “consider and act” on the issue of dam ownership within 60 days of being notified of the filing of the petition (April 1st). Per the statute, both the town of Whitefield and the town of Jefferson have to hold these public meetings. Tentative dates were discussed as was the fact that 60 days (now 50) isn’t a lot of time.
At issue is whether or not the town (or towns, with an interlocal agreement) should own the dam, with or without a maintenance and operations agreement with the Clary Lake Association. The Selectmen agreed that they’d be contacting their counterparts in Jefferson to discuss this.
The DEP will also further define what constitutes the “costs of transfer” which at a minimum need to be borne by or at least shared by the new dam owner. The actual wording of the statute is:
38 §906. PROPERTY TRANSFER PROVISIONS
1. Compensation. A dam owner is not prohibited from requesting compensation for the transfer of a dam pursuant to this article. The department may not issue a water release order pursuant to section 905 to a dam owner who has refused to transfer the dam to a person willing to assume ownership of the dam because that person refused to compensate the dam owner for the property. The department may not refuse to issue the order if the dam owner requested only payment or a share in payment of the costs of transfer.
“Costs of transfer” to me means the fees to have a title search done, a deed prepared, and the cost of recording it. That’s the beauty of this statute: Anybody can afford to buy a dam 🙂
It was also mentioned that the DEP has determined that the PPM petition is NOT complete as filed. Apparently DEP has questions about who owns what and wants supporting documentation of dam ownership and title. No doubt this has something to do with questions the DEP has over the ability of Pleasant Pond Mill LLC has to meet the provisions of the Statute regarding what property and property rights are to be transferred to a new owner. This should be interesting.
09 April 2013: Thoughts on the new Minimum Flows Recommendation
The new Minimum Flows Recommendation (see Clary Lake Assessment 3-Apr-13) gives me pause for thought.
First, I’m not quite sure how they came up with this- it appears to be based in large part upon section 6 of Chapter 587, the Standard Allowable Alteration method of determining required water levels in Class GPA (Great Pond Act) waters which however discriminates between a 1′ draw down from April 1st through July 31st and another 1′ draw down (for a total of 2′) between August 1st and March 31st as opposed to a total maximum draw down of 2′.
Second, the document quotes some numbers from the bathymetric survey (the figures 17% of the total lake volume and 14% of the total lake surface area come directly from the data table) but does not arrive at a draw down corresponding to the 25% volume reduction or the 25% area reduction. I’m not complaining, but why? Are they perhaps aware of problems with the modeling of the wetland area?
Third, and I’ve already mentioned this in response to David Hodsdon’s comment on another post, they suggest that the figures they’ve come up with are ONLY intended to protect the main basin of the lake:
Recommended within basin water levels are protective for the maintenance of suitable Water quality, resident fish and Wildlife habitat, and prevention of shoreline erosion. However, it is quite apparent that significant dewatering of valuable Wetland habitat will result in the vicinity of the outlet stream, above the dam.
What’s up with that? One can’t lower the water level in the basin without also lowering the water level in the marsh. How can a 2′ draw down be protective of water quality, resident fish and Wildlife habitat, etc., and yet contribute to “significant dewatering of valuable wetland habitat”?
This sentence is a new addition to the minimum flows recommendation they prepared a year ago.
Fourth and finally, they list minimum outflows which must be met unless inflows are less. How are we supposed to measure inflows? I assume if you’re letting water out and the lake is not falling, then inflows equal outflows. If you’re letting water out and the lake is falling, then outflows are greater than inflows. Finally, if you’re letting water out and the lake is rising, you’re not letting out enough water. This hit-or-miss approach seems amateurish and error prone. Surely there is a better way!
There is: We install a top weir in the dam with stop logs at some level such as 12″ below the top of the dam and walk away and let mother nature take care of it. I wonder what they’ll think of such a plan.
It is also interesting to note that the minimum flow figures are identical to those published a year ago.
Filed under Petition News and Technical Lake Stuff with a hint of Editorial.
09 April 2013: DEP Procedural Order #5 Bathymetric Data – ADDENDUM
Just received this email from Beth Callahan:
Per the directive of the Presiding Officer, the attached documents are being sent to you for your review and comment. Parties may submit written questions or comments on the documents no later than May 9, 2013. Questions and comments must be copied to all parties on the Service List. If additional time is needed to review the documentation, please send your request for additional review time along with a reasonable alternative submittal date to me no later than May 6, 2013, and copy all parties on the Service List. Subsequently, the attached documents and all comments received will be added to the administrative record of the Clary Lake Water Level Petition, #L-22585-36-B-N.
The first document contains comments from the Maine Emergency Management Agency regarding the Clary Lake Dam’s current hazard classification. The second document is a revised minimum flow recommendation submitted by the Department’s Division of Environmental Assessment. This recommendation is based upon the regulations outlined in the Department’s Chapter 587 for Instream Flow and Lake and Pond Water Levels and also the data gathered from the Department’s September 2012 bathymetric survey of Clary Lake.
The Attached documents:
- Maine Emergency Management Agency Comments 8-28-12
- Clary Lake Assessment 3-Apr-13
- New Service List dated 9 April 2013
I’ll comment as soon as I’ve had a chance to review the material.
08 April 2013: Yet Another KJ Article: “Clary Lake dam’s owner wants out, forcing towns’ hands in dispute”
Paul Koenig of the Kennebec Journal has written another article about the Clary Lake dam:
Clary Lake dam’s owner wants out, forcing towns’ hands in dispute
Paul Koenig called me last week to talk about the latest petition. “He wants to get rid of it, and we want it,” Fergusson said. “What can go wrong?”
Hehehe… great quote 🙂
I’ve posted a copy on the web site:
08-April-2013-Kennebec_Journal_article
08 April 2013: Photo Gallery Bugs, Uploads
The software that creates and manages the photo galleries has included a bug that usually, but not always, incorrectly handles photo meta information- picture date, camera model, exposure, etc. As a result, the image date is often set to 01 January 1970 regardless of when the actual picture was taken. This makes it a little hard to sort galleries by date, the preferred method. I’ve implemented a fix of sorts that now gives newly added pictures the correct date but it didn’t fix the dates of the existing images. I could just upload all the pictures again but that’s a lot like work. I think I’ll just wait for a real bug fix from the developers that also retroactively fixes existing image dates. Should be soon. In the mean time, you’ll have to put up with oddly-organized photo galleries.
The “Recent Pictures” box over on the side bar should show you the most recently added pictures.
07 April 2013: Preparing Petitioner’s Response to DEP’s Bathymetric Survey
I’ve finished my assessment of the bathymetric survey and have begun preparing my comments. I wish I could tell you that that survey is fantastic and I love it. I cannot. I feel that it is deeply flawed. As a (retired) Maine Professional Land Surveyor I am perhaps uniquely qualified to evaluate the survey, having made (and checked) numerous contour maps over the years both directly from data collection to finish drafting and indirectly by establishing horizontal and vertical control for large mapping projects involving aerial photography. I know what to look for and I know what I’m talking about.
I’ll leave it there for now. I’d like the Department to read about my allegations directly before I post anything publicly. Theoretically I have until the 17th of April to submit comments on the survey but I’d really like to get them in the mail tomorrow. I’ll upload it here as soon as I’ve sent it out.
On another note, David Hodsdon combined the Clary Lake depth points document with the bathymetric survey in one convenient and easy-to-view jpeg image which I’ve uploaded to Google Drive. Thanks David. I’ll post it to the Maps Charts & Graphs page later.
04 April 2013: Bathymetric Survey Data update
It turns out the Clary Lake Sensor Data spreadsheet that we received yesterday wasn’t corrupt, I just couldn’t open an Excel 2007 (.xlsx) file. David Hodsdon was kind enough to convert it to an older more generic Excel file (.xls) and send it to me, and I can open it fine. Before you click on the link, keep in mind that the spreadsheet consists of 3265 rows of data consisting of 21 columns each. Not what you call exciting reading. This is the actual data collected- depth, latitude, longitude, etc.
Clary Lake Sensor Data from bathymetric survey converted to Google Docs format
I’ve posted this document on Google Docs. I’m trying it out as a way of providing fast document access. Let me know what you think. All 3 documents are posted on the Maps Charts & Graphs page, under the Charts and Data main menu heading.
03 April 2013: FOA Request, Preliminary Survey Reaction, odds and ends and end of the day wrap up.
Well it’s been quite a day- a couple of days actually, a lot of activity all of a sudden. Of course, it’s not quite 3pm so it’s entirely likely that something else will land in my lap before dark. Anyways, there are a few things I want to pass on before I forget. First, I received an email from DEP this morning about a FOA request:
The Department of Environmental Protection has received a Freedom of Access Request regarding communications between Department staff and individuals associated with the Clary Lake Level Petition. The records responsive to this request will be available by the end of this week. If you are interested in reviewing the documents, you may make an appointment with the Department’s File Room by calling 207-287-7843.
One has to wonder why, if Pleasant Pond Mill LLC is committed to being relieved of dam ownership, why are they bothering with an FOA request? Perhaps they are just hedging their bets, looking for ways to shoot down our petition. This doesn’t mean they’re not seriously pursuing their own petition for release from dam ownership, does it?
Bathymetric Survey
I have not really had the time to go over the bathymetric survey in detail but my initial reaction is that it is somewhat flawed. More about this when I’ve had a chance to go over the survey and data in detail and have been able to discuss it with some other people.
Ice Out?
User Picture Submissions
I’m done.
03 April 2013: DEP Releases Bathymetric Survey Results
True to their word, DEP, in accordance with Procedural Order #5 of Department File #L-22585-36-B-N, Clary Lake Water Level Petition, have released the data and results from a bathymetric survey conducted by the Department in September 2012. I’ve barely had a chance to look at this myself. Of the files sent, the main document you’re going to want to download the depth/contour map:
Bathymetric Survey Contour Map
I’ve barely had a chance to look at it myself. They also sent along 2 other files including a spread sheet which appears to be corrupt (I’ve been unable to open it) and another aerial photo of the lake showing the point coverage of their data collection; it’s a very large (4+ megabytes) file so I won’t try to display it. I suggest you right click on the link and select “Save as”:
I’ll post the spreadsheet for download when they send me a viable copy. They also sent along a revised Service List which you’re welcome to download if you wish. I wouldn’t bother, unless you’re on it 🙂
Pursuant to Procedural Order #5, parties may submit written questions or comments on the data no later than April 17, 2013. Questions or comments must be copied to all parties on the Service List.
03 April 2013: Update on the Petition for release from dam ownership
I spoke with Kathy Howatt this morning, she’s the DEP staff person in charge of the Pleasant Pond Mill LLC Petition for release from dam ownership. She said the petition was filed yesterday. This appears to conflict with state law which states that public notice of the intent to file a petition must be published in a paper (and provided to various people including lake shore owners) not more than 30 days before filing the petition. Such notice of intent has not be provided. So much for procedure.
Ms. Howatt said the Department has 15 days to determine if the petition is complete. She also said that the petition for release from dam ownership is completely separate and distinct from the water level petition and that at least for the time being both petitions would both be processed concurrently. However, she said the Department may at some point stay the water level petition proceedings for some specific period of time to provide the Department time to address the petition for release from dam ownership, and for the dam owner to find potential new owners of the dam. She did stress the fact that ultimately the outcome of the water level petition is independent of the outcome of the petition for release from dam ownership. For example, if Pleasant Pond Mill LLC were to find a new owner and transfer the dam to them, they would be off the hook but the new owner would be facing a pending water level order.
02 April 2013: Pleasant Pond Mill LLC Notifies DEP of their Intent to Petition for Release from Dam Ownership
On behalf of Pleasant Pond Mill LLC, Paul Kelley has filed a notice with the DEP stating his intent to file a Petition for Release from Dam Ownership or Water Level Maintenance. This is a statutory process described in MRSA 38 Chapter 5, Sub-Chapter 1, Article 6, §§ 901-908. Earlier this evening I attended the Whitefield Selectmen’s regular meeting and listened to them discuss the situation. Paul Kelley was there representing Pleasant Pond Mill LLC. Discussion mostly centered around the role the town would be playing in the petition process regarding public hearings, public notices, and notifying affected parties. Aaron Miller, town clerk had spoken with someone at the DEP about this petition and was led to believe that for the time being anyways, processing of the Clary Lake Water Level Petition would continue while this new petition is addressed. I will be making inquiries of my own later this week to confirm what to expect.
Here are copies of the certified letters that Pleasant Pond Mill has sent to the Selectmen, and the Town Clerk:
- PPM to Whitefield Selectmen: notice of intent to file petition for release from dam ownership
- PPM to Whitefield Clerk: notice of intent to file petition for release from dam ownership
After the meeting Paul and I talked briefly and have agreed to maintain open lines of communication as we move forward in the hopes that a mutually agreeable solution to the problem can be found. I am cautiously optimistic.
About the Law
There are many privately owned dams in the State of Maine that belong to people who for various reasons don’t want to continue owning them. Usually the dams are in poor repair making them an expensive liability to own, and they may have water level orders on them (or pending water level orders) making the dams particularly unsavory to own and difficult if not impossible to sell, let alone give away. State law prevents dam owners from simply removing the dams, or abandoning them. Additional provisions in the law provide this petition process to help these unwilling dam owners find new owners for their unwanted property or, if no new owner can be found, allows them to be relieved of the burden of ownership. If a new owner for a dam cannot be found, the dam is removed.
Now clearly, the existence of this law with all it’s provisions suggests that dam owners are more often than not alienated from the various parties that might reasonably be expected to want to own the dam and that furthermore, guidance, rules, and rigid structure are often necessary to find the interested parties, get everyone together, and help them work out a mutually agreeable solution. Pleasant Pond Mill LLC clearly feels they are alienated and sees this petition process as the only way forward for them. They are certainly within their rights to take advantage of the provisions of the law to address the Clary lake dam problem.
Here’s a copy of the Petition application which lists the general information and procedures involved in the petition, the required information in the petition, and a copy of the notice of intent to file the petition:
Petition for Release from Dam Ownership or Water Level Maintenance
02 April 2013: Ice Almost Out
David Hodsdon keeps track of the “official” ice-out date. Last year the lake became completely ice-free on 21 March which is on the early side. More normal is between the 2nd and 3rd week of April. Here are Ice-Out Records going back to 2001.
31March 2013: End of Month Summary
30 March 2013: A lot like spring out there today, and other thoughts
Gorgeous day out there today, I’d say most of the north side of the lake is ice-free, perhaps about 1/4 of the lake total- enough so that open water is now easily visible on the web cam from over here on the south shore.
I’d like to thank those of you who corresponded with me about the recent article in the Lincoln County News. No, I don’t think Butch’s plan to have the dam removed stands a chance of happening; it’s just silly, as is his idea of “farming” the meadow. In the old days folks likely pastured some cows out there part of the year when it wasn’t flooded, and we know they cut meadow hay during a short window of opportunity in the early summer, but that’s about the extent of the “farming” that took place in Clark’s Meadow. We all know why Butch would like the water level kept low- his reasons are purely selfish. I will be sending a letter to the editor next week.
Some of you may have noticed that I went ahead and converted all the old legacy photo albums to new WordPress NextGen albums. I hadn’t planned on doing that but it turned out to be pretty easy. They offer more utility and convenience and do a better job of displaying pictures. Sadly, they don’t handle documents like PDF files of which there are a boatload on the site. I’ll have to look for another solution to manage and maintain those.
Finally, I stopped by the dam this afternoon to measure the outflow from the lake; came up with a figure of 35 cubic feet per second which is about what is expected with the lake level 40″± below the top of the dam. Have been wondering if there’s a way to estimate Clary outflows with any degree of accuracy using flow data from the USGS Sheepscot river gauging station located at the bottom of Grand Army Hill. More on this when I find some spare time.
Reminder: This coming Wednesday the 3rd DEP is supposed to distribute the results of the bathymetric survey they performed last September. Stay tuned 🙂
28 March 2013: Fergusson Response to recent Lincoln County News Article
I don’t have a lot to say about Frederick Duncan and his position on the Clary lake water level but I did want to respond to the article, before I move on. I like Butch and I respect his right to his opinion. As long as I’ve known him he’s been an advocate for lower water levels because of the impact that high water levels have on his use and enjoyment of his land. I understand. The 250′ shoreland zone infringes on his wood lot and limits what he can cut. Also, with parts of his property being in a resource protection district and adjoining mapped emergent wetlands and significant water fowl and wading bird habitat, he is further limited in what he can do with his property. I understand that too, and I acknowledge the fundamental unfairness of it while at the same time I welcome the protections afforded by these laws- laws intended to protect and safeguard valuable natural resources held in trust for all the people of the State of Maine.
Perhaps it is just too bad for him that he owns some of the most beautiful, sensitive, and vulnerable wildlife and wetland habitat on Clary Lake. As a fellow Clary lake shore owner with quite a bit of shore front property of my own, I am sympathetic to his plight: all of us who own land on or directly adjoining Clary lake have found that over the years our property rights have been increasingly limited by newer and more restrictive environmental and shoreland zoning regulations. We can’t cut the trees we might like to cut, we can’t build on our property where we’d necessarily like to build. But these regulations are intended to safeguard Clary lake and it’s associated wetland and wildlife habitat, and I have come to terms with their impact on my property rights. I am but a steward of my property which I hold in trust for future generations. I think the sooner Butch comes to terms with the reality of the situation and stops fighting a losing battle, the better off he’s going to be, because the Clary lake dam isn’t going away and the State isn’t going to let him drain wading bird habitat so he can plow up Clark’s Meadow.