The Whitefield Selectmen have sent a letter to Assistant Attorney General Thomas Harnett, the person handling the Clary Lake water level order and its pending appeal filed by Paul Kelley in Lincoln County Superior Court. The letter urges the AAG to expedite the current mediation process and enforce any violations of the water level order that may be found to exist.  It was sent by email to the Service List. It has also just been posted on the Town of Whitefield’s Facebook page. It’s short and sweet so I’ll copy here in its entirety:

Thomas Harnett
Assistant Attorney General
Department of the Attorney General
State House Station 6
Augusta, Maine 04333-006

Dear Mr. Harnett:

The Town of Whitefield would like to convey to you its continuing concern about the
present state of water levels in Clary Lake. Since 2011, the lake level has been lowered and resulted in continuing and significant impacts to the environment and our community. Without going into details as they are well documented in the record, the low water level has adversely affected Clary Lake’s suitability for recreation, navigation and as a habitant for fish and other water dependent species. While the dam has been described by the owner as “breached”, it is in fact just damaged and reparable.

The Town is asking that your office actively use all means at its disposal to resolve
pending issues in order to restore Clary Lake water level to that which existed prior to 2011. In particular, your assistance in the expediting the current mediation process and enforcing any violations of the DEP’s water level order that may be found to exist would be appropriate and appreciated.

Thank you for your consideration and assistance.

Sincerely,

Aaron Miller
Administrative Assistant to the Select Board
Town of Whitefield
cc: Service List

“Damaged and reparable.” Nice they got that bit in there.

The Selectmen voted to send a letter last week at their regularly scheduled Select Board meeting. That meeting was covered by the Lincoln County News (see: Whitefield Selectmen to write State officials about Clary Lake). I greatly appreciate the Whitefield Selectmen taking this assertive step.

Here’s a link to the actual document:

• 8-18-2014 Town of Whitefield letter to AAG

George Fergusson, left, of the Clary Lake Association and Tom Hayes, Whitefield’s assessors’ agent speak to the Whitefield Board of Selectmen Aug. 12. (Kathy Onorato photo)

At their regularly scheduled meeting last Tuesday night, Whitefield Selectmen voted to write a letter to State officials expressing concern over Paul Kelley’s obstinate refusal to implement the Clary Lake water level order, according to an article in this week’s Lincoln County News by Kathy Onorato. In a brief telephone interview on Wednesday, Kelley complained about not having been notified that his company, Pleasant Pond Mill LLC, was going to be discussed at the meeting. For the record, I was at that meeting and the name “Pleasant Pond Mill LLC” was not mentioned once that I can recall though Mr. Kelley’s name was used numerous times. Also for the record, the Selectmen’s agenda was published on the Town’s facebook page on Monday. Apparently Mr. Kelley is not following that page:

• Whitefield Selectmen to write State Officials About Clary Lake

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According to the Clary Lake water level order today is the day that Paul Kelley was supposed to have completed repairs to the dam and installed a publicly-visible water level gauge. As you can see from these pictures taken just a little while ago, he hasn’t even bothered to cut the tree down that is growing out of the dam let alone actually effect any repairs to the dam. Of course, I’m not surprised since Kelley has yet to do ANYTHING substantive to comply with any requirement of the water level order. Here is the specific section of the Order that relates to today’s deadline:

6. A permanently mounted lake level gauge shall be installed on the Clary Lake Dam by the owner of the dam. The gauge must be marked in tenths of a foot and placed in a publicly visible area on the upstream face of the dam near its outlet. The gauge shall be placed such that the normal high water line, as determined by the procedures outlined in Condition #3, corresponds to an elevation of 0.0 on the gauge. This measurement will be used as a benchmark for observing water level changes and may be used for measuring the height at which the dam gate must be opened above its invert. Provided that the normal high Water line has been established in accordance with Condition #3, the gauge must be installed immediately following completion of the dam repairs as described in Condition #2 or by no later than August l, 2014, whichever comes first.

Sounds pretty clear to me, but then what do I know? I haven’t heard anything about mediation that is supposed to have started last Tuesday, July 29th. As soon as I find out anything, I’ll post it here.

Special Condition #4 of the Clary Lake water level order is a requirement that the dam owner have a Professional Land Surveyor establish the historical normal high water level of Clary Lake and transfer that elevation to the dam. The Order required that the dam owner submit this survey to the Department by June 2nd. Paul Kelley did in deed submit something on that date and not surprisingly, it failed to meet the requirements of the Order. On June 19 the Department responded with a letter detailing the shortcomings of his submission. The letter gave him 30 days, until July 21st, to correct the deficiencies in his submission and resubmit the plan. That was a couple of days ago. I got a copy yesterday afternoon and it is sadly but not surprisingly, more of the same old, same old:

• PPM response to DEP June 19th Communication

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There was an article in yesterday’s Kennebec Journal by staff writer Paul Koenig providing a welcome update on the current circumstances surrounding the Clary Lake water level order. It is nice to see the KJ keeping this issue before the public, rather than letting it fade into obscurity. Paul Kelley was quoted as saying that mediation is to start at the end of this month and that the process is likely to extend into August: “My hope is that all the parties see that the best solution is no longer to fight this but to try to see if there is some constructive solution.” Nonetheless, the spokeswoman for the department said the DEP still expects the dam owner to begin maintaining the higher water levels by Oct. 1. Here’s a link to the article:

• Clary Lake dam owner and state still at odds

If anyone has trouble getting the article off the newspaper site, I’ve saved a local copy:

• [archived copy] Clary Lake dam owner and state still at odds

I was briefly interviewed by phone but I didn’t have a lot to say. The article does not mention whether the spokesperson for the Clary Lake Petitioners and/or the Clary Lake Association (as intervenors in the petition) will be asked to participate in the mediation. While I was quoted as saying that I don’t expect anything to come from mediation, that doesn’t mean I wouldn’t be willing to join in the process.

FYI, the next deadline for Paul July 27th when he has to resubmit his Water Level Survey (which was also deemed “unsatisfactory”) and then by August 1st he is supposed to have completed repairs to the dam, and installed a water level gauge.

The article also mentions the Branch Pond water level order and the recent letter from the Coombs. It remains to be seen how or if the Department chooses to respond to their “declaration.”

Paul Kelley responded today to DEP’s June 2nd letter clarifying the requirements of Special Condition #5 of the water level order and giving him till today to submit a revised Water Level Management Plan (see 03 June 2014: DEP responds to Paul Kelley’s Water Level Management Plan). Instead of a revised plan, Kelley responded with 4 separate documents: a letter to Beth Callahan, an email exchange he had with Beth Callahan back in March of this year, a copy of an email from DEP staff person Erle Townsend dated September 20, 2011, and a page of historical rainfall data from the NOAA website.

• Kelley’s Response to June 2 request for revised plan
• Kelley/Callahan Email Exchange
• DEP Townsend Permit Email PPM dated 09/20/11
• NOAA Extreme Weather Data

In short, more of the same. The email from Erle Townsend is the same as Kelley’s “Exhibit L” entered into the record during his testimony at the public hearing back in August 2012. We’ve seen it before. DEP has seen it before. Kelley seems to think it is relevant to the situation. It isn’t. Continue reading →

“Unacceptable at this time” is how the Department of Environmental Protection has characterized Paul Kelley’s Water Level Survey that he submitted to the Department in response to Special Condition #4 of the Clary Lake Water Level Order. If you’re having a sense of deja vu all over again it’s because this this is the exact same phrase the Department used to describe his Water Level Management Plan in a letter sent to him back on June 2nd (see the news article here). Mr. Kelley certainly isn’t scoring very high marks with the Department over his attempts to comply with the Water Level Order… it’s almost like he isn’t even trying:

Special Condition #4, Clary Lake Survey, DEFICIENCY

The letter gives Mr. Kelley until July 21st to submit a survey along with a Condition Compliance Application and a $146 application fee. Mr. Kelley is not considered in violation of the Order at this time, but don’t worry: that will change soon enough.

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“Unacceptable at this time.” That is how the Department of Environmental Protection has characterized Paul Kelley’s Water Level Management Plan in a letter to him dated June 2nd. The plan, one of the requirements in the Clary Lake Water Level Order, was submitted back on May 2nd. The letter goes on to list the plan’s deficiencies and the steps Mr. Kelley needs to take to remedy those deficiencies. It also informed him of the need for a Condition Compliance Application along with a $146 application fee. The letter gives Mr. Kelley exactly 1 month (until July 2nd) to resubmit his corrected/revised Water Level Management Plan along with his application and application fee. Mr. Kelley is not considered in violation of the Order at this time.

• DEP Response to Water Level Management Plan 02 June 2014

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According to information recently obtained from the Town of Whitefield, Pleasant Pond Mill LLC has requested an inter-agency, pre-application meeting with the Army Corps of Engineers and representatives of other State and Federal Agencies to discuss permitting issues surrounding the repair and/or ​replacement of the Clary Lake dam. A pre-application meeting is standard operating procedure when contemplating a project requiring an NRPA (National Resource Protection Act) permit. Mr. Kelley must be contemplating a major dam reconstruction project involving significant alteration of lots of fresh water wetlands and possible damage to the downstream ecology to require pursuing an NRPA tier 1, 2, or 3 permit, especially considering that back in 2011 he felt (and DEP agreed) that the repairs he contemplated required a simple Permit By Rule approach. What has changed?

I understand that this inter-agency pre-application meeting is tentatively scheduled for the 17th of June. This date incidentally is 2 weeks past the next upcoming Water Level Order deadline of June 2nd when Mr. Kelley is supposed to have submitted a survey of the historical normal high water line of Clary lake, and not quite one and a half months before the August 1st deadline by which time Mr. Kelley is to have completed dam repairs and installed a water level gauge. It’s going to be a busy summer for him!

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There is an article by Dominik Lobkowicz in this week’s Lincoln County News on page 8 about the Water Level Management Plan (WLMP) submitted by Paul Kelley last week. The article does a pretty good job of covering the main issues surrounding the WLMP. According to the article, the Department will “work diligently to complete a thorough review in a timely manner” and that “any deficiencies will be identified and an opportunity provided to correct them.” The article does not appear in the public version of the Lincoln County News Online. I recommend those of you who can, buy a copy of this week’s paper. For those of you who can’t, I scanned a copy of the article:

• Owner Submits Water Level Plan for Clary Lake

The article goes on to state that “attempts by PPM to court the Clary Lake Association … failed to yield a secondary designee.” Right. Well I was on the receiving end of Mr. Kelley’s attempts to “court” the Association. If Mr. Kelley really wanted us to assume that role, he sure went about it wrong. All he succeeded in doing was to discourage us from taking on that role. I’ve already posted about how he tried to “court” the towns of Whitefield and Jefferson. They wouldn’t take the job either.

The first milestone of the Clary Lake Water Level Order was the May 1st submission of a Water Level Management Plan (WLMP). I was originally told by a DEP staff person that the WLMP was not going to be released until it had been “reviewed and approved” by the Department. Apparently I was misinformed as according to Project Manager Beth Callahan who I spoke to earlier today, the document is in deed “public” information. According to Beth Callahan, the Department will review the submission and issue a Procedural Order (of the sort we’re used to seeing) to the Service List with the Department findings. She didn’t have any idea when that was likely to happen.

The document is 13 pages and I’ve only had the time to glance over it. However, from what I’ve read so far, I’m guessing DEP won’t be “approving” it anytime soon. I will refrain from further comment at this time until I have had a chance to read it over more carefully.

Proposed Water Level Management Plan

If you’re eagerly awaiting the water level management plan now that the deadline for its submission has passed, you’re not alone! Several people have asked “where’s the plan?” Careful reading of the specification for the Water Level Management Plan in the water level order suggests we should not hold our breath waiting for the plan. From the Order (emphasis added):

5. The owner of the dam shall submit a Water Level Management Plan to the Department for review and approval no later than May 1, 2014.”

So the plan needs to be reviewed by DEP and approved before it is accepted and before we get a copy. No telling how long this could take. Further on it says (emphasis added):

The final Water Level Management Plan shall be made available by the owner of the dam to all littoral and riparian landowners for review upon request. A copy of the final plan shall be distributed to the Town of Jefferson and the town of Whitefield.

So the Towns will only get a copy when it’s been approved and no where does it say Kelley has to actually provide a copy to anyone who asks for it, only that it shall be “made available for review upon request” and at that only to littoral and riparian landowners. It remains to be seen how Mr. Kelley will choose to interpret the above language.

So patience is the word of the day. I’m sure it will be a fine plan, and worth waiting for. When the plan has been approved (we’ll let you know) it will be available at your respective Town offices.

Paul Kelley appeared before the Jefferson Selectmen last Tuesday night to see if they’d be willing to take on the role of secondary designee of the Clary Lake dam. They said no. I didn’t bother to go to the meeting, having attended a similar meeting with the Whitefield Select Board the previous week (which I wrote about here) but Lincoln County News reporter Dominik Lobkowicz was there and he has reported on the meeting in this week’s Lincoln County News:

Jefferson Selectmen Say ‘No’ To Being Clary Lake Dam Backup

The Selectmen’s decision came as no surprise to anyone. Kelley has also extended his offer to the Clary Lake Association. The Association Board is currently considering a response to his request.

[Local Copy]