Category Archives: Petition News

News about the Clary Lake water level petition

26 April 2013: Clary Lake Association meets with Whitefield Selectmen

Ellis Percy, David Knight and I met for several hours this afternoon with Whitefield Selectmen Dennis Merrill and Tony Marple to discuss the petition filed by Pleasant Pond Mill LLC for release from dam ownership or water level maintenance. These same two Selectmen met earlier this week with Paul Kelley to discuss his plans and intentions surrounding the Clary Lake dam and his petition for release from dam ownership. Today’s discussion included some of the implications the petition might have for the town and the Clary Lake Association, and what might happen at the upcoming public meeting tentatively scheduled for this coming May 22nd. There are no immediate solutions apparent.

We also discussed the Association’s plans to make a formal offer on the dam possibly as early as next week and despite a lack of guidance from DEP on what they think “costs of transfer” means, it appears that Paul Kelley’s understanding of that term and ours are about the same: basically, the cost of a title search, the preparation of a deed, and recording fees.

Pleasant Pond Mill LLC has up to 180 days to consult with various parties including State agencies including holding their own public meeting in an attempt to find a new owner for the dam. Kelley, manager of Pleasant Pond Mill LLC originally scheduled a meeting for Monday, September 11, 2013 at 11 AM at its company’s office located at 171 Molyneaux Rd., Camden (see original filing of notice). I believe however that Mr. Kelley has been convinced to hold his meeting in Whitefield or Jefferson at a time and place yet to be determined though presumably still sometime in early September. Mr. Kelley also indicated attendance at the meeting would be by invitation only, raising the obvious question of who would be invited to attend and who would be left out, and why? I question whether such a private “public” meeting actually meets the requirements of the statute let alone the intent to consult with any and all parties that might be interested in taking over the dam, but that is not my decision to make. Nor do I particularly care because I’ve already decided to vociferously boycott any so-called public meeting with restricted attendance whether I’m invited to it or not. Kelley seems to think he has all the time in the world to orchestrate this dog and pony show according to his whims, and to suit his ends. I’m not so sure. We will see.

We also discussed the public informational meeting coming up this coming Tuesday, 7 PM April 3oth at the Whitefield Fire & Rescue building, and the current status of the Clary Lake water level petition. All in all we covered a lot of ground today, way more than I can begin to describe here. Suffice it to say there’s a lot going on in several different venues. These are exciting times.

24 April 2013 LCN Article: Whitefield and Jefferson plan meetings to consider dam ownership

The anticipated article by Shlomit Auciello has appeared in today’s in Lincoln County News:

Whitefield and Jefferson plan meetings to consider dam ownership

It contains some rather serious misinformation. For example:

“PPM’s next recourse is to the departments of Inland Fisheries & Wildlife, Conservation (within the .Departrnent of Agriculture, Conservation and Forestry) and Emergency Management. If none of those entities choose to take ownership, the state will order the water level lowered and the dam removed, Merrill said.”

That statement is categorically wrong and I can assure you, Dennis said nothing of the kind. He is well aware of what’s in the law. If he had said anything like that, I would have immediately corrected him. And then this:

“He [Fergusson] said the law requires a sale, even if only the cost of transfer is offered and PPM would have to keep the dam if no buyer appears.”

I said that? I don’t think so. The law does not require a sale and if no buyer appears, the State orders the water released and the dam removed. I wish Ms. Auciello would get her facts straight. The law is readily available. Correct information is readily available. Printing misinformation does everyone a disservice.

I’ve replaced the scanned copy I made with a better PDF from the paper’s site.

22 April 2013 KJ Article: Clary Lake foes take issue with DEP study

The anticipated KJ article has finally appeared in the paper this morning:

Clary Lake foes take issue with DEP study

Here’s a link to the online version:

http://www.kjonline.com/news/Clary-Lake-foes-take-issue-with-DEP-study.html

A couple of comments. First, I am not particularly surprised at Samantha Warren’s response to allegations that the bathymetric survey contains significant errors. She’s just a spokesperson making standard spokesperson type remarks though she should realize that using the “We’re experts” argument doesn’t usually hold up to scrutiny. I believe my comments have provided the necessary “strong technical evidence” necessary to open the study for revision.

Second, it’s time they took another picture, perhaps one showing the drained wetlands, or the virtually unusable State boat launch.

21 April 2013: Howard Nickerson: What price are we willing to pay?

I was visiting Jane Chase this morning and she happened to mention an impassioned letter to the editor of the Lincoln County News that she’d read recently that did not ring a bell with me. Sadly, as much as I try and stay on top of everything going on these days, I just can’t and I rely heavily on other people to let me know about things of importance to Clary Lake and the water level petition. Jane found a copy on line and sent it to me. The letter to the editor turned out to be by none other than my good friend Howard Nickerson and was sent to the paper back in the middle of March. My apologies for just now getting it posted.

What price are we willing to pay?

Howard owns land up in the northeast end of the marsh on the east side of Clark’s Meadow Brook adjoining land of Sue McKeen and Butch Duncan. He’s a life-long conservationist.

20 April 2013: Update: No KJ article on the dam today

UPDATE: No article in today’s KJ. Supposedly there WAS to be an article appearing in today’s Kennebec Journal/Morning Sentinel. Perhaps tomorrow. On a brighter note, it’s raining.

17 April 2013: Post followup thoughts on Petitioners Comments on the bathymetric survey

I kinda wish I’d thought to include this section of the Whitefield Shoreland Zoning Map produced by the Sheepscot Valley Conservation Association in my Comments to DEP on the bathymetric survey. It clearly shows as all the wetlands that the State left off their plan. The legend refers to those greenish blue areas with the blue dots as “Wetlands in Shoreland Zone (NWI)” which I assume refers to the National Wetlands Inventory, which I cited (numerous time) in my comments. So I guess it’s covered. On the other side of the coin, you can see why Butch Duncan is a little irritated: that bright red boundary along his property is a Resource Protection Zone. Of course, that same Resource Protection Zone bounds all of Howard Nickerson’s property, all of Sue McKeen’s property and her daughter’s property, all of the Mathews, Shorey, and Weeks properties, and a little bit of the next lot south (Roever?) and we don’t hear them grousing about the water level being too high and arguing for the removal of the dam.

17 April 2013: Pleasant Pond Mill LLC Comments to DEP regarding the Bathymetric Survey, I think.

cliff-coyote_0 At 10 minutes before 5 PM today, Melissa O’neal, Administrative assistant for Tony Buxton filed 4 documents with DEP and the Service List that were shortly before forwarded to her by Paul A. Kelley acting on behalf of Pleasant Pond Mill LLC… Got that? So while this communication has all the appearance of propriety for having passed through the Law offices of PretiFlaherty, this stuff was not prepared by a lawyer. I don’t think a lawyer even waved at it on the way by, more or less confirming my suspicions that Tony Buxton is counsel in name only for Pleasant Pond Mill LLC and Aquafortis Associates. Then again, none of my stuff is prepared by a lawyer…

So without further preamble, here they are. They consist of one 4 page letter to Heather Parent and 3 other documents apparently the results of the Freedom of Access action I mentioned a week or two ago. Document #2 (below) is so heavily redacted as to be virtually meaningless 🙂

Kelley’s Comments to Heather Parent
FOAA Document #1 (this link was initially boogered and has been repaired).
FOAA Document #2
FOAA Document #3

The only thing that jumps out at me right off is that the FOA request was supposedly brought by Aquafortis Associates LLC and if that is the case, then how did Pleasant Pond Mill LLC end up with the documents??? I’m confused!

I have not tried to decipher any of these documents. More to follow.

17 April 2013: Petitioner’s Comments on Clary Lake Procedural Order #5: Bathymetric Survey

This afternoon I completed and emailed my comments on the bathymetric survey to the Service List. My response consists of 2 files, a 6 page letter and an appendix with 18 photographs. Because the appendix is large (2.3 megabytes) I’ve added it to Google Drive and have provided links below. At this point I doubt anyone else is going to submit comments on the survey but I remain prepared to be surprised. I’ve posted the documents at these links:

The photographs included in the appendix are also available for viewing and download (with descriptions somewhat truncated for online formatting) here:

Photos Accompanying Bathymetric Survey Comments

It pained me to take issue with the Department’s survey results.

Google Drive Links if the above give you trouble:

13 April 2013: Fergusson’s Letter to the Editor in response to the Duncan article

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:

Fergusson’s Letter to the Editor

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.

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:

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.

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:

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

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?

On a lighter note, the ice shelf hugging my shoreline this afternoon finally succumbed to wind and wave action, breaking up and floating away a little over an hour ago. And then just a bit ago a long thin slab of ice drifted in from some place and settled in against my shoreline. It has already broken up and floated away as I type. The only ice left is a bunch of slush that has washed up down at the far east end of the lake. From other reports I’ve gotten from others around the lake and what I’m seeing out side my window now, David Hodsdon will be hard pressed not to call ice out today, 03 April, 2013.

User Picture Submissions

Finally to wrap up this post, Trudi Hodgkins sent along a couple of recent pictures which I have posted in the User Uploads- Clary Images gallery. They should be showing up auto-magically in the “Recent Pictures” box in the side bar as the gallery default sort is by date, descending i.e., newest pictures at the front (or top?) of the gallery. And here, to the left and the right, are the thumbnails. So you don’t have to hunt around for them. Thanks Trudi!

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”:

Clary-Lake-Depth-Points.pdf

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.

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:

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

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.