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.“

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Remember Paul Kelley’s second Petition for release from dam ownership or water level maintenance, filed back on September 27, 2013? Well probably not! Most people have forgotten about it, and with good reason. After all, it is perfectly clear that Kelley has no intention of selling the dam and equally obvious that he isn’t going to get his desperately wished-for breach order. Nonetheless his petition is still alive, and the clock is ticking: he has until this Wednesday, March 26th, to either conclude the petition by filing a consultation report with the Department of Environmental Protection or file for his one-time, 180 day extension as provided for by statute.

You’d think Kelley was already busy enough with the water level order and it’s looming deadlines to contend with, the upcoming land use mediation to prepare for, and his pending administrative appeal to worry about, that he’d drop this petition charade to concentrate on more important things. However, I fully expect that he will request the 180 day extension just to keep his petition alive for another 6 months. Check back here in a few days to see if I’m right.

Update: 26 March 2014: So I was right.

Kathy Onorato of the Lincoln County News attended the Whitefield Selectman’s meeting last Tuesday night and has written an article about the meeting that has appeared in this week’s paper. The November 19th special town meeting will be held at 7 PM at the Whitefield Elementary School, same place as last time:

Whitefield residents to vote again on Clary Lake dam

The wording of the article is the same as the first time around which was recommended by the Maine Municipal Association:

To see if the Town will vote to authorize the Selectmen, on behalf of the Town, to negotiate an agreement to accept ownership of the Clary Lake dam, including all property rights owned by the dam owner and necessary to maintain and operate the dam, on such terms and conditions as the Selectmen deem advisable, subject however, to final approval by the voters before the Selectman execute the agreement.

Only a lawyer could have come up with that wording! For comparison, here’s the article the residents of the town of Jefferson will be voting on (see yesterday’s post):

To see what action the Town will take regarding ownership of the dam on Clary Lake located at 103 Mills Road in Whitefield.

Regardless of the wording of the articles, the outcome of the meetings is not in question: the residents of both towns already voted not to have anything to do with the dam.

The Town of Jefferson has scheduled public meeting for Monday 18 November at 5:30 PM to consider and act on the issue of dam ownership. The meeting is being held at the Jefferson town office. This is one day before the Town of Whitefield public meeting being held for the same purpose. The actual wording of the article is:

Article 2: To see what action the Town will take regarding ownership of the dam on Clary Lake located at 103 Mills Road in Whitefield.

This is pretty much the same wording as the last time they held a meeting and the outcome of the meeting will undoubtedly be the same. The Selectmen have decided to send a letter to the DEP expressing their concern over their lack of action on the matter of a water level order for Clary Lake.

Paul Kelley has sent a letter to DEP Commissioner Patricia Aho requesting she give up jurisdiction over his company’s petition for release from dam ownership or water level maintenance to the BEP (Board of Environmental Protection). He copied IF&W Commissioner Chandler Woodcock and the towns of Whitefield and Jefferson:

It is not a foregone conclusion by any means that DEP Commissioner Aho will relinquish jurisdiction to the BEP, nor is it clear what Kelley would expect to gain by having the BEP take over his petition. From a DEP information sheet:

BEP Jurisdiction Requests. People may request that the Board assume jurisdiction over a filed application within 20 days after D.E.P. accepts it as complete for processing. Such a request must satisfy Section 17 of Chapter 2. Board jurisdiction is not available for windpower development projects.

I think it is unlikely the DEP Commissioner Aho will go along with this jurisdiction change request and I think to do so would be a unconscionable waste of government time, money, and resources especially considering that Kelley has a couple of offers to purchase the dam. Those wishing to delve into this further can find Chapter 2 here:

Rule Chapters for the Department of Environmental Protection

The slow motion train wreck continues: the Lincoln County News reports that the town of Whitefield has scheduled yet another public meeting for Tuesday, November 19th to “consider and act” on the question of dam ownership. Again. Apparently, back on September 27th Paul Kelley really did file a new petition, replacing his original petition filed back on April 2, 2013. DEP’s Kathy Howatt originally stated that she believed Kelley was trying to correct deficiencies in his original petition resulting from a failure to properly provide public notice and that as such the towns wouldn’t be required to hold public meetings again.  In fact, when I spoke to her late afternoon on September 27th, she said that he hadn’t filed a new petition at all but had filed a request for a 180 day extension.

Now apparently DEP has concluded that Kelley really did file a new petition which is what Kelley has maintained all along. Boy I’m glad they finally got that straightened out.

Whitefield sets date to vote again on Clary Lake Dam ownership

This means Jefferson will also be required to hold another public meeting though the selectmen haven’t indicated they intend to do so, at least not yet anyways.

Paul Kelley addresses the small group of assembled lake shore owners.

There is an article in today’s Lincoln County News about the meeting held yesterday by Paul Kelley to hear offers on the dam from Clary Lake shore owners. It’s a good article, and well written. Here’s a link to the on line version:

No White Flags, But Clary Lake Groups Aim For Peaceful Talks

18 people showed up not including Paul Kelley or the fellow he brought to video record the meeting. The meeting started out rather stilted and formal. Kelley made it clear at the beginning that the meeting was being held to comply with the requirements of the statute and the video would be used as the basis of his report to the DEP. Continue reading →

There is an article in this week’s Lincoln County News about Pleasant Pond Mill LLC filing a second petition for release from dam ownership or water level maintenance. The reporter, Dominik Lobkowicz, interviewed me by phone yesterday afternoon and it would appear he also spoke Paul Kelley and Kathy Howatt of the DEP.

Clary Lake Dam Owner Plans Second Petition For Release From Ownership

Mr. Lobkowicz has done a good job of reporting on a very complicated issue and has prepared a factual, accurate article. One thing that jumped out at me: Kelley apparently told the reporter that “no offers to take over ownership of the dam that meet the statutory guidelines have yet emerged.” This does not jive with a statement made by Kathy Howatt to me yesterday when I spoke with her on the phone: she said she was aware of at least one offer on the dam.

I’ll read the article more closely later and likely post a comment or two. I’ll also archive the article and post a link to it later.

Here’s a local PDF copy from the archive:

25-September-2013_LCN_Clary-Lake-Dam-Owner-Plans-Second-Petition-For-Release-From-Ownership.pdf