Category Archives: Department of Environmental Protecion

10 November 2016: WLO Appeal Update, Court Conference Scheduled

[dropcap]A[/dropcap] quick update to let everyone know what’s going on with the Clary Lake Water Level Order Appeal: back on October 4th counsel for DEP and Aquafortis Associates LLC (AQF) held a telephone conference with Justice Billings to discuss issues around the State’s requested discovery, Petitioners objections to it, and some other jurisdictional issues raised by AQF including their own requested discovery (see: 05 October 2016: Clary Lake Water Level Order Appeal Update). The Court’s conclusion at that time was that it needed “more time” to consider matters and the parties agreed to meet again towards the end of the month of October to continue their work to resolve the conflicts.

That delay stretched into 5 weeks: a conference has finally been scheduled for next Wednesday November 16th at 1PM. Presumably the issues surrounding DEP’s requested discovery and the other matters hanging fire will finally be addressed by the Court so the case can move forward. The State originally filed their request for discovery over 3 months ago, back on August 2nd. I sure hope the court can pick up the pace.

I will post a report as soon as I know something.

04 November 2016: DEP Establishes Clary Lake High Water Elevation

high-water-mark.jpgFor the past 5 years I’ve been referencing Clary Lake water levels to the “top of the dam” for the simple reason that the actual elevation of the Normal High Water Line of Clary Lake has never been established. I knew from my own observations (picture at left) that the historical normal high water line has always been at or very near the top of the dam so it made sense to use the top of the dam both as a reference for my measurements, and as a proxy for the high water line. The picture at left shows a boulder with a distinct black stain showing the prolonged effect of the action water that corresponds to the approximate high water line of Clary Lake.

When the Clary Lake Water Level Order was issued back in late January 2014, the water level regime specified therein only referred to the “historical normal high water line” of Clary Lake without stating what the actual elevation of that line on the earth was. Special Condition #4 of the WLO required the dam owner to hire a Professional Land Surveyor to conduct an elevation survey whose job would be to establish the actual elevation of the Normal High Water Line of Clary Lake, which is defined as follows:

Normal High Water Line. “Normal high water line” means that line along the shore of a great pond, river, stream, brook or other non-tidal body of water which is apparent from visible markings, changes in the character of soils due to prolonged action of the water or from changes in vegetation and which distinguishes between predominantly aquatic and predominantly terrestrial land, 38 M. R.S. S.480-B (6)

The problem is, the dam owner didn’t comply with Special Condition #4 and in June 2014 the Department sent him a Letter of Warning for failing to provide a satisfactory survey. Continue reading →

05 October 2016: Clary Lake Water Level Order Appeal Update

Back on September 9th I wrote that a conference with the court had been scheduled for October 4th to address questions of Discovery in the Clary Lake WLO appeal. In fact, Attorneys with the Office of the Attorney General representing DEP and counsel for AquaFortis Associates (AQF) held a Status Conference by telephone yesterday afternoon with Lincoln County Superior Court Judge Daniel Billings to discuss the State’s requested discovery and the Petitioner’s objections to that discovery. “The Court needs more time” was my take away from a brief phone call I had today with Assistant Attorney General Scott Boak about yesterday’s meeting. The parties agreed to meet again towards the end of the month of October to continue their work to resolve the conflicts. A date to meet has not yet been set.

The State initially filed their request for discovery on August 2nd and their Administrative Record on August 17th; on August 30th Petitioners filed objections to the State’s discovery and on the following day, their own requested discovery to supplement the Adminstrative Record (see “AquaFortis Associates Files Objections to DEP Discovery Requests“). I understand that the State has, or intends, to object to Petitioner’s requested discovery.

The Wheels of Justice turn slowly. Stay tuned.

09 September 2016: AquaFortis Associates Files Objections to DEP Discovery Requests

You may recall back on August 2nd, DEP served Petitioner AquaFortis Associates LLC with their requests for discovery. Then on September 1st AquaFortis Associates filed a consented-to motion regarding various deadlines (see Petitioner Files Consented-To Motion Regarding Deadlines). In that filing they made clear their intention to object to (some or all of?) DEP’s requests for discovery by August 31st. On August 30th attorneys for AquaFortis Associates did indeed file 3 separate motions objecting to 1) DEP’s Request for Production of Documents, 2) their Deposition Notice, and 3) their Request for Discovery of Third Parties. The following day on September 1st they filed a Motion for Additional Evidence and Discovery. I received copies of all these filings a few days ago and have finally finished my review of them. I understand a conference with the court to address these issues has been set for October 4th. Continue reading →

08 September 2016: DEP Administrative Record Now Available Online

On August 17th DEP filed their Administrative Record with the Lincoln County Superior Court in preparation for moving forward with their defense of the Clary Lake Water Level Order. I wrote about this back on September 1st (see: DEP files Administrative Record with Superior Court). The State’s filing consisted of a 20 page document that listed the descriptions of 264 items totalling 345 megabytes of material, which are all included on a CD. I was particularly interested in getting a copy of the CD partly because it seemed like every other document had my name associated with it, and partly because there were a goodly number of documents listed that I do NOT already have in my files, primarily internal Department and Interagency communications, and  correspondence between DEP staff and Paul Kelley that was not shared with the Service List. Continue reading →

01 September 2016: Petitioner Files Consented-To Motion Regarding Deadlines

Attorneys for AquaFortis Associates filed a “Motion Regarding Deadlines” in Superior Court on August 29, 2016. This motion seeks a conference with the Court in late September pursuant to the Court’s June 17, 2016 Order. The purpose of the conference will be to resolve conflicts between the parties regarding discovery requests which were served by DEP on AquaFortis on August 2, 2016. This motion was consented to by the DEP and was signed by the judge on August 30.

Typically, requests for discovery (documents, depositions etc.) are not filed with the court or made public. Therefore we don’t know exactly what has been asked for by DEP. However, the Motion gives us an idea:

4.     In accordance with the Court’s Procedural Order, on August 2, 2016, the DEP served on Aquafortis (1) the DEP’s First Requests for Production of Documents to Petitioner, (2) the DEP’s Notice of 30(b)(6) Deposition of Aqua Fortis (which DEP defines to include Richard Smith), and (3) the DEP’s Notice of Intended Discovery of Third Parties, including proposed discovery of Pleasant Pond Mill, LLC (which DEP defines to include Paul Kelley), Medius L3C, and Mr. Arthur Enos.

The motion goes on to say that “The parties also agree that a hearing with the Court to resolve discovery disputes is necessary. Aqua Fortis plans to object to the majority of the DEP’s discovery requests and the proposed discovery of third parties” and that “The parties are working cooperatively and in good faith to address the disputed discovery issues and plan on conferring to discuss these issues no later than September 7, 2016.”

September sounds like it’s going to be an interesting month; it will be very interesting to see what ends up being allowed in discovery.

This isn’t a terribly long document so I hope you’ll all take the time to read it.

Stay tuned.

01 September 2016: DEP files Administrative Record with Superior Court

It has been a busy summer for me and I am just now getting around to catching up with what’s been happening with the Clary Lake Water Level Order appeal. I last posted on July 22nd about the Court’s June 7th Status Conference and resulting Procedural Order issued by the Court on June 17th which stayed the proceedings until August 1st and set a deadline of August 19th for the State to file the Administrative Record, and an outline of a discovery plan.

On August 17th Mark Bergeron of the Maine Department of Environmental Protection filed the Department’s “Administrative Record” which consists of 264 items on a CD. I did not make a copy of the CD, but I did copy the 20 page filing which lists all the various and sundry documents, photographs, and other items which comprise the full Administrative Record. The list starts with the Clary Lake Water Level Petition I filed with DEP on January 2, 2012 and ends with the Final Water Level Order issued by the Department on January 27, 2014 and includes everything in between. It’s an exhaustive list and just reading it for me was a tiring trip down memory lane. Continue reading →

24 July 2016 Centralmaine.com: Repair work begins on Branch Pond Dam

Picture of the Branch Pond dam and mill showing the upstream face of the dam. This picture was part of the Branch Pond Association’s 2008 Water Level Petition.

According to an article in today’s Kennebec Journal and Morning Sentinel by staff writer Madeline St. Amour, repairs have finally begun on the Branch Pond dam. Branch Pond and it’s dam are located in China and Palermo at the headwaters of the West Branch of the Sheepscot River and are subject to a water level order issued by the Maine Department of Environmental Protection in June 2014. The WLO was issued in response to a petition filed by the Branch Pond Association originally back in 2008. The petition was put on hold for 4 years to give the dam owners time to make repairs to the dam. No work was performed in that time however, and the petition process was restarted in 2012 about the same time as the Clary Lake water level petition was getting underway. I have remained in close contact with members of the Branch Pond Association over the past 4 years and I am pleased that DEP is now taking aggressive steps to enforce their Water Level Order, and happy for the Branch Pond lake shore owners who are finally seeing their efforts rewarded. Congratulations Branch Pond Association! Here’s the article:

I received a few phone calls this morning from Clary Lake shore owners who saw the article in this morning’s paper and wanted to know why DEP isn’t enforcing our Water Level Order with the same enthusiasm. This reaction is totally understandable. While there are many similarities between Branch Pond and Clary Lake, there are 2 very important differences. Continue reading →

22 June 2016: Superior Court Update: WLO Appeal Stayed, Procedural Order Issued

[dropcap]The[/dropcap] judge handling the appeal of the Clary Lake Water Level Order (AP-2014-01) has issued a Procedural Order based on the results of the Status Conference held back on June 7th. The Order is dated June 17, 2016 which was last Friday. The Order specifies a deadline of August 19th by which time the State should have filed the administrative record as well as their request for discovery. The real surprise in the Order is that contrary to what I had been told and contrary to what had I reported at the time (see: “Update on Superior Court Action“), the proceedings HAVE been Stayed, yet again, until August 1st. I had been assured by Assistant Attorney General Scott Boak when I spoke to him the day after the Status Conference that the suit had not been stayed so I expect the fact that it has now been stayed will come as much of a surprise to him as it did to me. No reason for the additional stay has been given.

Continue reading →

08 June 2016: Update On Superior Court Action

After attorneys with PretiFlatherty representing the dam and mill owners failed to produce a plan to repair the Clary Lake dam by last week’s June 1st deadline, people were concerned that they had come to some agreement with DEP to give them more time to respond. Also, the current Stay on the Proceedings in Superior Court ran out on June 1st as well, and we’ve all been wondering if another stay was going to be granted which would further delay the resumption of court action. With a Status Conference in Superior Court with Judge Billings scheduled for June 7th, we didn’t have long to wait for answers. I spoke with Assistant Attorney General Scott Boak this morning about what happened at yesterday afternoon’s Status Conference and he said there was no agreement between Preti and DEP going into the meeting, and the proceedings have NOT been stayed. Neither the State nor the Judge are interested in further delays.

Continue reading →

03 June 2016: June 1st Deadline Comes and Goes With Nothing to Show For It

We’ve all been anxiously waiting the June 1st deadline when lawyers for Paul Kelley (Pleasant Pond Mill LLC) and Richard Smith (Aquafortis Associates LLC) were supposed to submit a plan to DEP for repairing the Clary Lake dam and raising the water level of Clary Lake. Earlier this spring PretiFlaherty asked for and received several Stays of the proceedings in Superior Court, first on February 29th for a stay until March 26th and most recently on April 14th for a stay until June 1st. These stays were ostensibly to give them and their clients time to work on their proposal without having the lawsuit hanging over their heads. The State agreed to both Stay requests, and their response to the latest clearly revealed DEP’s deep-seated frustration over lack of progress and their belief that June 1st was the latest they could afford to wait to receive a proposal and still have time to get the dam repaired and the lake level restored this summer. We were led to believe there would be no more stays. We have been told that Mr. Kelley has been trying to raise funds to repair the dam. We have been told repeatedly that the DEP Commissioner is deeply committed to getting the lake level restored and the Water Level Order upheld this summer. In recent months, DEP has publicly maintained an assertive stance that gave us reason to feel cautiously optimistic that finally, after years of maneuvering, come June 1st we were going to see some real progress.

It was not to be. At least not yet apparently. June 1st has come and gone and no formal plan to repair the dam has been submitted to DEP. It remains to be seen what DEP will decide to do next. We will know more after the upcoming Status Conference in Superior Court which is scheduled for this coming Tuesday June 7th, at 3:30 PM.

Stay tuned.

20 April 2016: Lawyers for Kelley, Smith file Yet Another Motion For Stay of WLO Appeal

Attorneys for Aquafortis Associates LLC (“AQF”) have filed another Motion For Stay of the WLO appeal until June 1st. The motion was filed on April 14th and states that AQF, Pleasant Pond Mill LLC (“PPM”), and the Department of Environmental Protection have been “cooperatively working to resolve the issues that are the subject of Aquafortis’ appeal of the Department of Environmental Protection’s (“DEP”) Water Level Order for Clary Lake Dam (“CLD”), including issues that impede repairs to the CLD.” Continue reading →

03 March 2016: PretiFlaherty Files Motions for Stays of Suits

[dropcap]Last[/dropcap] Monday, February 29th attorneys representing Aquafortis Associates LLC (AQF) and Pleasant Pond Mill LLC (PPM) filed motions requesting a Stay of Proceedings in two pending suits, the February 2014 Water Level Order appeal in Superior Court (No. AP-14-1) and the recently filed appeal of the recent lower court’s ruling in the Maine Supreme Court (No. LIN-16-63). The stay requests are for 30 days and end on March 26th. The Law Court action was initiated when Pleasant Pond Mill LLC appealed the January 25th Superior Court ruling granting the State’s motion to dismiss (see PPM Appeals Superior Court Ruling on Motion to Dismiss).

Stay tuned.

19 February 2016: Update on LD 1566 “An Act Concerning the Establishment of Water Levels”

[dropcap]I[/dropcap] am pleased to announce that at a work session held earlier today the Legislature’s Environment & Natural Resource Committee voted unanimously Ought Not To Pass on LD 1566 “An Act Concerning the Establishment of Water Levels.” In it’s place, DEP will add a requirement to their rules pertaining to water level petitions for a public informational meeting including notices in local papers, a mailing to all lake front owners, the dam owner, and the town(s) in which the impoundment resides. The purpose of the meeting is to inform everyone of the requirements of the law governing water level petitions and the actual petition and adjudicatory hearing processes, and to encourage people to find a negotiated solution to their water level issues.

Many thanks to all the people who advocated against this legislation including the Clary Lake Association, the Branch Pond Association, the Midcoast Conservancy, Trout Unlimited, the Maine Lakes Society, the Maine Audubon and others parties.