Yesterday was the end of the 21 day grace period for Aquafortis Associates LLC to appeal the recent Lincoln County Superior Court ruling on the DEP transfer order. As of this morning, no appeal has been filed. This comes as no surprise. The DEP Transfer Order stands. And that, as they say, is that.
Category Archives: Water Level Order
09 October 2020: Water Level Transfer Order Upheld
Following a hearing for oral arguments on September 8th, the Lincoln County Superior Court has issued its ruling on the Aquafortis Associates, LLC [AQF] Rule 80C Appeal of DEP’s December 2018 Order transferring the Clary Lake Water Level Order to the Clary Lake Association. In its discussion, the Court carefully considered all of AQF’s claims and denied or rejected all of them. The Order, issued on September 28, 2020 is subject to appeal, and AQF has 21 days from the date of the Order (deadline October 19th) to appeal the ruling to the Maine Supreme Court, but honestly, in my humble opinion, the Superior Court’s ruling was so unequivocal and final and the appeal so pointless in the first place, that I can’t imagine they will want to waste their money on a Law Court appeal, which they would undoubtedly lose. While this ruling did not come as a surprise to us, it is nice nonetheless to get the official word. The ruling is only 9 pages and well worth reading: Continue reading
13 August 2020: Hearing Scheduled for AQF Appeal
It appears the Aquafortis Associates LLC [AQF] appeal of the Water Level Order Transfer (docket AP-20-4) is going to hearing after all! A one-hour hearing for oral arguments has been scheduled in Lincoln County Superior Court on September 8th at 2:30 PM. The hearing will be held in front of the Honorable Daniel Billings using Google Meet (Google’s version of Zoom). I assume the hearing will be available to the general public but I don’t have information about how to connect yet. When I do I’ll make that information available. The State will be represented by Assistant Attorney General Scott Boak, the Clary Lake Association will be represented by Attorney Randy Creswell who so ably represented us during the Bankruptcy proceedings (and got us the dam!), and AQF is being represented by Dennis Carrillo. The Clary Lake Association is named as a Party in Interest in the appeal. Continue reading
09 July 2020: Aquafortis Associates Files Combined Reply Brief
On Thursday July 9, 2020 Aquafortis Associates, LLC [AQF] filed their reply brief in the matter of AQF v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-4, it being an appeal of a Department of Environmental Protection [DEP] Order issued in December 2018 transferring the Clary Lake Water Level Order to the Clary Lake Association. AQF filed their initial brief on May 29th of this year; their reply brief is a combined reply to both the BEP’s brief filed on June 19th and the Clary Lake Association’s brief filed on June 25th. This latest document includes 52 pages but there are a number of attachments; the actual reply brief itself is actually only 16 pages long:
Now that AQF’s petition has been fully briefed, the next step is up to the Court. The judge may schedule a hearing for oral arguments or he may just issue a ruling. I have no idea what to expect or when to expect it. I’m going to refrain from further comment at this time.
26 June 2020: Clary Lake Association Files Brief in AQF WLO Transfer Appeal
On Thursday June 25th the Clary Lake Association through their counsel Randy Creswell timely filed their brief in the matter of Aquafortis Associates, LLC [AQF] v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-04. The State of Maine filed their brief a week ago, on June 19th. AQF now has 14 days from the service of these briefs to file their reply briefs. For the State’s brief the deadline is July 3rd and for our brief, the deadline is July 9th. Someone is going to have a fun-filled Fourth of July weekend!
The Clary Lake Association is but a Party in Interest to this appeal and as such we really didn’t need to file a reply to AQF’s brief, especially considering how thorough and irrefutable the State’s brief is. Nonetheless we felt that providing some additional arguments supporting our right, title, and interest in the Clary Lake dam was a worthwhile effort. Continue reading
19 June 2020: State Files Brief in AQF WLO Transfer Appeal
On Friday June 19th the State of Maine timely filed their brief in the matter of Aquafortis Associates, LLC v. Maine Board of Environmental Protection Docket No. WISSC-AP-20-04. The original appeal was filed by AQF in December 2018 in response to DEP’s issuance of an Order transferring the Clary Lake Water Level Order from Pleasant Pond Mill LLC to the Clary Lake Association, after we bought the dam in October, 2018 and it’s taken a convoluted and circuitous route to get where we are today. If you’re wondering WHY Aquafortis Associates LLC decided to spend the time and money appealing the WLO transfer, you’re not alone. You may want to also review Aquafortis Associate LLC’s brief, previously filed on May 27th. Seeing as how this is an ongoing case in which the Clary Lake Association is an interested party, I’m going to refrain from further comment at this time.
29 May 2020: AQF Files Brief in WLO Transfer Appeal
On May 27th Aquafortis Associates LLC [AQF] by their counsel Dennis Carrillo finally filed their brief in their ongoing appeal of the Maine DEP’s December 2018 Order transferring the Clary Lake Water Level Order [WLO] to the Clary Lake Association [CLA]. To remind everyone how we got here: when the CLA purchased the Clary Lake dam in October 2018, DEP rules required we file an application with the Department requesting the Order be transferred from Pleasant Pond Mill LLC (in whose name it was originally issued) to the CLA. We did that, and the DEP approved the transfer request in early December 2018. Later that month AQF appealed the DEP transfer order to the Board of Environmental Protection [BEP] who subsequently denied their appeal at a hearing held in Augusta in June 2019. AQF then appealed the BEP ruling to Kennebec County Superior Court in July 2019. In early February 2020 the Kennebec County Superior Court judge granted a motion to change the venue to Lincoln County. In early March of this year, a scheduling order was issued and AQF has finally filed their brief, which brings to now.
Here’s the AQF brief:
07 March 2020: AQF Appeal Scheduling Order Issued
With the January 17th Kennebec County Court ruling transferring Aquafortis Associate LLC’s 80C appeal of the DEP Transfer Order to Lincoln County, we’re essentially starting over in a new jurisdiction. On February 28th Lincoln County Superior Court Judge Daniel Billings has issued a Scheduling Order. The Petitioner (AQF) has 40 days from the date of the Order to file their brief (on or about April 8th) and responses by the State and CLA (if we choose to prepare one) are due 30 days after that. The Petitioner then has 14 days to file their reply brief. After that we can expect a hearing date to be set. Stay tuned folks, and don’t hold your breath.
04 February 2020: Kennebec County Judge Rules In AQF Appeal Hearing
We’ve received word that Kennebec County Superior Court Judge William Stokes has issued his ruling on the January 10th hearing in regard the Aquafortis Associates LLC appeal of the Clary Lake water level order transfer. The Order, dated January 17th, DENIES AQF’s motion to supplement the record and GRANTS the Clary Lake Association’s motion to transfer the venue to Lincoln County. This is Good News. We’re hearing about it now because the Court mailed the Order to our lawyer’s old mailing address. Continue reading
10 January 2020: Update on Aquafortis Associates Appeal
The first hearing on the AquaFortis Associates LLC appeal of the Maine DEP transfer of the Water Level Order to the Clary Lake Association took place today. It lasted about an hour and a half. The picture at left, taken before the start of the hearing shows CLA attorney Randy Creswell (left) and Assistant AG Scott Boak discussing strategy. Aquafortis Associates LLC (and Richard Smith) were represented by attorney L. Dennis Carrillo. The Judge handling the case is Justice William Stokes. Continue reading
Aquafortis Associates Appeal Hearing Reminder
The other day I emailed our Membership to remind them of the upcoming hearing on the Aquafortis Associates LLC appeal of the WLO Transfer, scheduled for 10:30 AM on Friday, January 10th. The hearing will be held at the Kennebec County Superior Court, 1 Court St Suite 101, Augusta, ME 04330 (map). I wanted to get notice out soon enough so those who would like to attend have time to make arrangements. If you’re not familiar with this proceeding and it’s history, I’ve posted about it a few times on the CLA website, most recently back in the middle of December. Here’s a link to that post, for more information: Continue reading
July 2019 Water Level Chart Archived
July 2019
I have archived the July 2019 Water Level Chart (at left). The most notable thing about this chart is it shows rainfall fell off a cliff in July with only 2.39 inches being recorded for the month, over an inch less than the average of 3.54 inches for July. The latter part of the month has been driest: we’ve only received 0.16 inches of rain since July 13th. That said, due to the above-average rainfall received in April, May, and June, we’re still 0.65 inches above the yearly average for this date. While we’re not in official drought territory yet, we will be soon if this dearth of rainfall continues.
The lake level has fallen since the first of the month, starting out 0.13 feet above the HWM and ending the month 0.32 feet below the HWM, a total range of only 0.45 feet. Still, despite the lack of rain, the lake level is higher now than it historically would be on this date; water was still flowing over the top of the dam until just a few days ago. We’ve only been able to maintain this high water level because of the dam repairs we made late last fall which has reduced leaks to a just a few cubic feet per second, which conveniently supplies the minimum flows (1.9 cfs) for this time of year. We anticipate the lake level will continue to fall an additional 6-8 inches through the month of August, depending on rainfall. Continue reading
06 June 2019: BEP Denies AQF Appeal
In a decision that should come as a surprise to no one, the Board of Environmental Protection after listening to comments from Aquafortis Associates LLC [AQF] and others, summarily denied AQF’s appeal of the December 2018 DEP Order transferring the Clary Lake Water Level Order to the Clary Lake Association. The Board also denied several parties requests for a public hearing. So the DEP Transfer Order stands.
The information-gathering portion of the hearing lasted over 2 hours, the bulk of which was used by attorney for AQF Dennis Carrillo to explain and justify AQF’s appeal; this was a non-testimonial hearing and the record was closed which means all of AQF’s attempts to supplement the record with additional material were for naught. After AQF spoke, CLA President Malcolm Burson issued a short statement on the Association’s position- basically that we filed a satisfactory application and did everything right and in a timely fashion and that we applaud the Department’s decision to transfer the Order to us. Finally, counsel for DEP spoke briefly stating their opinion that the DEP had covered all the bases and that the CLA transfer application was deemed satisfactory and complete. The Board then asked if there were any additional comments; Butch Duncan spoke briefly about his desire for a public hearing, and Paul Kelley spoke about why the thinks the Clary Lake Association lacks sufficient Right, Title, and Interest in the Clary Lake dam to operate it, an argument that Mr. Carrillo also attempted to make. The Board however correctly observed that there is a forum for resolving title issues, and they aren’t it.
The Board deliberated for all of about 2 minutes before issuing their unanimous decision denying the appeal.
A number of CLA Board members and several Clary Lake Association members attended the hearing. I have no idea how many people if any listened in on the DEP Virtual Meeting Room, if you did I’d be interested in hearing your reactions.
13 May 2019: BEP Hearing on AQF Appeal of Transfer Order Continued
Aquafortis Associates LLC (AQF) has retained attorney Dennis Carrillo to represent them in their appeal of the DEP License Transfer Order (see 04 May 2019: BEP Hearing on AQF Appeal of Transfer Order Scheduled). At Carrillo’s request, Board of Environmental Protection Chairman Mark Draper has agreed to continue the hearing originally scheduled for this coming Thursday May 16th to Thursday June 6th at 9:00 AM at the Augusta Civic Center.
You may recall that attorney Carrillo represented Richard Smith and AQF in both the Paul Kelley Bankruptcy Proceeding and the Rubin/Ayer lawsuit. However, given that is a non-testimonial proceeding and that the record is closed (i.e., there will be no witnesses, no testimony, and no new evidence entered) one wonders what Smith is hoping to accomplish by retaining counsel to represent him in this proceeding.
For what it’s worth, here’s the letter sent by attorney Carrillo to the BEP:
04 May 2019: BEP Hearing on AQF Appeal of Transfer Order Scheduled
You may recall that back in December the DEP issued an Order transferring the Clary Lake water level order to the Clary Lake Association (see 11 December 2018: Clary Lake Water Level Order Transfer Complete). You may also remember that Richard Smith, owner of Aquafortis Associates LLC (AQF) subsequently appealed the Transfer Order to the Board of Environmental Protection (see 26 December 2018: Aquafortis Appeals CLA License Transfer). Today I received 2 heavy manila envelopes in the mail, one addressed to me and one to President Malcolm Burson, each containing 98 pages of documents pertaining to Aquafortis’s appeal. A hearing on the appeal has been scheduled for Thursday May 16, 2019 beginning at 9:00 AM. The meeting is going to be at the Augusta Civic Center at 76 Community Drive in Augusta. Continue reading
01 May 2019: DEP Approves Water Level Management Plan
We have received provisional approval of our Water Level Management Plan [WLMP] from the Maine Department of Environmental Protection. The WLMP details the procedures we’ll be following to operate the Clary Lake dam and manage the water level so as to remain in compliance with the Clary Lake Water Level Order [WLO]. The completion of a management plan was the final requirement of the WLO and it’s good to have this task behind us. This first season is like a shakedown cruise: we’ll be sitting down with DEP staff next winter to review the plan to see how well it’s met everyone’s needs. Continue reading
04 April 2019: Testing of Lake Shore Owner Notification System to Start Soon
Now that the lake level staff gauge installation has been approved by DEP, the remaining requirement of the Clary Lake Water Level Order already under way but yet to be completed is a Water Level Management Plan [WLMP], defined in Special Condition #5 of the WLO. The Board has been working on it off and on for most of the winter and it is now in the final review stage. We’ll make it available as soon as it is finished and has been approved by the DEP. Copies will also be posted at the Whitefield and Jefferson Town Offices.
One of the requirements of the WLMP is that we develop a procedure for alerting people 1) of possible flooding events and 2) repair or maintenance procedures on the dam that are expected to appreciably affect lake levels. We propose to 1) post notices on this website and on Facebook and 2) send email notices to those people for whom we have email addresses and by postcard to those people without email. We’re in the process of setting up this notification system now and will start testing it in the near future. I’ll soon be adding a page on this site to keep track of water level related events and notices sent. Continue reading
21 March 2019: Lake Level Staff Gauge Installed
Work to come into compliance with the Clary Lake Water Level Order (WLO) continues. Special Condition #6 of the WLO requires that the dam owner install a lake level staff gauge graduated in feet and tenths of a foot located in a “publicly visible location” behind the dam. The zero foot mark on the gauge must mark the elevation of the Normal High Water Mark (HWM) which has been previously determined to be at an elevation of 151.17 feet. I had already purchased the staff gauge from Forestry Suppliers earlier this winter. It’s nicely constructed of steel with a baked-on enamel coating, easy to read graduations, and brass grommets in the screw holes. It’s attached to a piece of pressure treated 5/4 board with stainless steel screws which in turn is attached to two steel brackets bolted to the gate structure with stainless bolts. It should prove serviceable for many years. Many thanks to Colin Caissie (pictured below left) for designing and fabricating the brackets to attach the staff gauge to the gate structure, and for helping with the installation. Continue reading
O5 January 2019: Clary Lake Association Responds to Aquafortis Appeal of License Transfer
Back on December 26th I posted about Aquafortis Associates LLC appealing the recent DEP Order #L-22585-36-F-T transferring the Clary Lake Water Level Order to the Clary Lake Association. CLA President Malcolm Burson has in turn responded to the appeal with a short, succinct 1 page letter:
Ho hum. That is all.
26 December 2018: Aquafortis Appeals CLA License Transfer
In a move that should surprise no one, Richard Smith of Aquafortis Associates LLC [AQF] has formally appealed the Department of Environmental Protection’s decision to approve our application to transfer the Clary Lake Water Level Order to our organization. The appeal of the December 6th Department Order #L-22585-36-F-T was filed “in a timely manner” with the Board of Environmental Protection [BEP] on December 11th, the same day I posted that our license transfer application had been approved. This appeal can only be viewed as ongoing harassment of the Association by Paul Kelley and Richard Smith and a continued attack on Clary Lake, and the Clary Lake Water Level Order. One wonders what they can possibly hope to accomplish with this appeal save wasting our time and that of the DEP and the BEP? It appears the following email I received from DEP on December 13th is in fact the formal appeal: Continue reading