16 November 2017: State Files Response Brief in Superior Court

Yesterday afternoon, as expected, Assistant Attorney General Scott Boak hand-delivered DEP’s Reply brief to Superior Court, thereby responding to the Rule 80c Brief filed by Aquafortis Associates LLC [AQF] on October 1oth. This much-anticipated brief (40 pages plus 36 pages of supporting documents) represents the State’s one opportunity to present written arguments to the Court supporting the Clary Lake Water Level Order and Attorney Boak has done an outstanding job of making the State’s case. If you’ve been following the Clary Lake water level saga at all closely, you’re really going to enjoy reading it. For me, it was a trip down memory lane. Granted, parts of it are a little difficult to get through but for the most part I found the brief easy to read, absolutely fascinating, and a joy to read: 

As with the Rule 80C Brief filed by AQF, the State’s Brief includes numerous references to documents in the State’s Administrative Record (numbered 1 through 264). If you want to track down any given AR document to see what it says, you’ll find it in the following directory which includes an index file 000-Index.pdf so you can tell what’s what.

Next up: According to the Court’s briefing schedule, AQF will need to file their reply brief by December 4th. The Judge will then schedule a hearing for the parties to present their arguments, probably sometime after the first of the year.

Stay Tuned.

13 November 2017: DEP Responds to Clary Lake Association Petition

Back on August 21st we filed a petition with DEP requesting they take enforcement action on the Clary Lake Water Level Order [WLO].  We finally received a response from DEP Commissioner Paul Mercer by way of a letter from him dated October 17, 2017. The Commissioner said that the Department had previously attempted to address violations of the Clary Lake water level order through the negotiation of a consent agreement but was unable to reach agreement with the owner of the dam. The Department now awaits the decision of the Court. While the Department response did not come as a huge surprise, we are nonetheless disappointed that they have chosen not to take further action at this time.

Here’s the letter:

My apologies for not posting this sooner. Life happened.

10 November 2017: Foreclosure Papers filed on Kelley’s Camden Home

If Kelley’s filing for personal bankruptcy protection came as a surprise the other day, I was shocked to discover during a routine check of the Knox County Registry of Deeds that his home is in the process of being foreclosed: ARVEST Central Mortgage Company of Arkansas, the current owner of the mortgage on Paul Kelley’s home at 171 Molyneaux Road in Camden, has initiated foreclosure proceedings in Knox County District Court. The company filed their original Complaint for Foreclosure with the Court back in August and an amended Complaint on September 25th, and recorded a notice in the Knox County Registry of Deeds on November 2nd, just one day after Kelley filed for chapter 7 bankruptcy:

I’m somewhat at a loss as to what to say about this latest development. Granted, he hasn’t lost his house yet, but by the time it reaches this stage of the game, foreclosure is almost guaranteed. I have always only wanted Kelley to fix the dam and comply with the Clary Lake Water Level Order, or transfer the dam to the Clary Lake Association and let us take care of it. Whatever. I didn’t expect Paul Kelley to lose his house in the process and while I am sorry it has come to this, I guess I’m not surprised, and I’m not going to lose any sleep over it: he has brought this on himself. His relentless, single-minded pursuit of a spiteful, futile vendetta against Clary Lake has only succeeded in creating a shambles of his life. Somehow I don’t think Paul Kelley expected things to turn out this way; the only thing that surprises me is how he ever thought it could turn out any other way.

Stay tuned.

07 November 2017: Paul A. Kelley Jr. Files for Chapter 7 Bankruptcy

Paul A. Kelley Jr., principal of the now-defunct Pleasant Pond Mill LLC and presumed owner of the Clary Lake dam has filed for Chapter 7 Bankruptcy. This bankruptcy filing is not to be confused with the Pleasant Pond Mill LLC chapter 7 bankruptcy filing last spring. Now Kelley is filing for personal bankruptcy and as such, it’s a real eye-opener: it lists total assets of $283,953.00 (most of which is his house and property in Camden) vs. total secured and unsecured liabilities of $2,097,379.00 (that’s two million, ninety seven thousand, three hundred and seventy nine dollars) of debt including $494,186.00 of money owed to Preti Flaherty which is separate from the $335,000.00 that PPM owes to Preti Flaherty. This brings total legal fees for Kelley and PPM to $829,176.00. Woof.

Things are pretty bleak on the income side of things too with Mr. Kelley (who claims his job is landlord) claiming a monthly income of only $1500 to cover $3,731.00 of monthly expenses. Oh my. He lists 18 creditors (people/entities he owes money to) including DEP, Arthur Enos, Equinox Collection Services, Ford Motor Credit, Medius L3C, and Richard L. Smith. Without further adieu:

The first Meeting of Creditors is going to be November 28, 2017 at 10:00 AM at the Augusta Armory. The bankruptcy trustee is Jeffrey T. Piampiano.

Stay tuned 🙂

03 November 2017: Anyone Lose A Canoe?

Lost canoe, washed up on David Hodsdon’s shoreline.

David Hodsdon emailed me a photograph of a canoe this morning that washed up on his shoreline. The lake has risen about 15″ as a result of heavy rains and this canoe floated off. If it’s your boat, come get it.

There was considerable damage to several properties around the lake as a result of the intense wind storm that blew through early last Monday morning. Of particular note, Gordon Frizzell’s house was virtually cut in half by a large pine tree that landed on it’s roof. I’ll post photographs when I get a chance.

October 2017 Water Level Chart Archived

10 waterlevelchart_October2017I have archived the October 2017 Water Level Chart (at left). The most notable feature of the October chart is how flat the lake level was and how little it rose despite heavy rains at the end of the month.  We received almost 9″ of rain in the last week of October. Despite the rain, we’re still several inches short for the year. I’m at the Sheepscot General, we’re currently without power and internet so I’m going to cut this post short.

27 October 2017: Much Needed Rain Has Little Effect On Clary Lake Water Level

We just received 5.15″ of rain in a little over 2 days which, had we not been suffering under drought conditions, would have brought the lake up close to two feet or more. However because so much of the rainfall ended up soaking into the ground and not running off into the lake, the water level has only come up 7.44″ yielding a pathetic runoff multiplier of about 1.4X. Now that the ground is pretty much saturated, we should get more bang for the buck from the next rain storm due in this coming Sunday and Monday.

21 October 2017: Update on Clary Lake Water Level Order Appeal

Back on October 10th I posted Aquafortis Associates LLC’s [AQF] Rule 80C Brief and at the time I said I hadn’t read it but that I would shortly and would post my thoughts “at a later date.” I know some of you have been waiting for me to do just that. Well it’s a later date, I have read it, several times even, but have decided I will keep my thoughts on the brief to myself for now except to state that I think the arguments put forth in it are specious and without merit. I’d also suggest that apparently neither AQF nor their counsel has any idea what a bathymetric survey is or what it’s used for, and they seem equally confused over the difference between a water level and a water elevation. I don’t know whether this confusion is real or contrived, but I’m sure the State’s brief will clear it up.

The State’s response brief is due November 15th. I’ll post it as soon as I get a copy.

13 October 2017: Loon Baby Update

IMG_4612The 2017 fledgling loon, now about 14 weeks old, is pretty much on its own and is rarely seen with it’s parents anymore. It is about full size but it doesn’t have full adult plumage yet so is easy to identify. I spotted it this morning while David Hodsdon and I were out for our last water monitoring session of the season, and was able to get close enough to get this picture. It was a little leery of us and wouldn’t let me get any closer. In the next few weeks it will be flapping around the lake, strengthening it’s wings before it takes off and heads for the coast.

10 October 2017: Aquafortis Associates Rule 80C Brief Filed

Wait. What?

After three and a half years of countless delays and numerous stays, the Clary Lake Water Level Order appeal is finally getting down to business. Late last Friday counsel for Aquafortis Associates LLC (AQF) hand delivered their 40+ page brief to Lincoln County Superior Court. AQF is requesting the Court “reverse, remand, or modify” the Clary Lake Water Level Order and this brief explains their reasons for their request. I wanted to get it on the website without further delay. I haven’t read it yet but I will do so shortly and will post my thoughts on it at a later date. 

 

09 October 2017: The Beavers Are Back

DSC_5153The water level of Clary Lake has effectively bottomed out this fall about a foot higher than it did last fall. I know the outflow rate has been slowed down considerably as a result of thick vegetation in the outlet channel, but that still didn’t explain why the lake hasn’t fallen as low as expected. Today I discovered why: beavers have begun to block the channel at the downstream end of the Narrow Gauge Railroad abutment located at the head of the mill pond (picture at left). The small dam is only about one foot tall but it is already holding back Clary Lake.

DSC_5156Sadly, I don’t think the beaver responsible for this new dam are going to get a chance to build it much higher: beaver trapping season in this area starts October 29th, and this morning I saw Richard Smith, owner of Aquafortis Associates LLC standing on his side of the Narrow Gauge Railroad abutment talking with someone who looked like (and drove the same red Ford pickup truck as) the person they hired last March to trap out the beaver that had been working to plug up the outlet gate last winter. At least he was driving the same red Ford pickup truck.

DSC_5157While up at the narrow gauge abutment looking at the new beaver dam, I happened to notice that Kelley and Smith have put a tarp over one side roof of the red building (at left) and fastened it down with battens. Nice to see them maintaining their property.

DSC_5159Finally, as I was walking back to my car, I noticed that the gate which has normally been obscured by weeds was fully visible, so I took a picture of it (at left). I’ve known all along that the 34″ diameter gate was partially obstructed, but I always thought is was blocked by a log or rocks or something. However, the picture clearly shows that the gate was built that way: the ‘obstruction” is actually made of steel and completely blocks the bottom third of the gate.

These pictures have been added to the Fall 2017 Photo Gallery.

September 2017 Water Level Chart Archived

9 waterlevelchart_September2017I have archived the September 2017 Water Level Chart (at left). The most notable feature of the September chart is how little the lake level changed over the course of the month: the lake level dropped only 1.56″ from the first day to the last. This didn’t appear to have much if anything to do with the 2.4″ of precipitation received since the lake barely rose after receiving that rainfall. With effectively no water leaving the lake through the channel for the past several months, likely all of the drop (an average of less than 1/10th of an inch per day) was due to evaporation. The lake reached -58.68″ below the normal high water mark on the last day of the month, the lowest level reached so far this year.

We received only 2.37″ of rain in September (average is 3.74″ for the month) bringing us to 23.65″ for the year which is fully 6.28″ shy of where we should be at this time. According to the National Integrated Drought Information System we’re in MODERATE drought, not as dry as we were last year at this time, but still pretty dry.

Looking at September in light of the lake level trend for the year, the lack of rainfall in 2017 has resulted in a slow but steady decline in water level without any of the ups and downs usually present due to normal precipitation. This lack of “volatility” over the spring and summer is especially noticeable on the Water Level Chart covering the period December 2011 through the current date (above). From December 2011 until the spring of 2015, the lake level during the summer fluctuated up and down considerable whereas since the spring of 2015, after reaching a high in April, the lake level has pretty much steadily fallen to it’s low in October. In 2015, 2016, and so far in 2o17, precipitation has been significantly below average.

This year, the lake reached a high of -8.76″ below the normal high water mark on April 13th, thanks in part to the effort of some beavers who managed to at least partially plug up the dam outlet. This was the highest water level we’ve seen in SEVEN YEARS, since 2010. On a marginally bright note, the lake level effectively bottomed out this year about a foot higher than it did last year. I attribute this to profuse vegetation in the channel which has hampered lake outflow.

While the lack of rainfall has been hard on people’s gardens and wells, the lack of rainfall and resulting runoff has been generally good for Clary Lake’s water quality which has maintained better than average transparency throughout the summer in spite of the drastically low-water conditions. Secchi disk readings this summer never once fell below 3 meters (see our Clary Lake Water Monitoring Data page). David Hodsdon and I are heading out later this morning to collect more water quality data and I expect transparency to have improved even further.

26 September 2017: WLO Appeal Briefing Schedule Revised

The briefing schedule for upcoming filings in the Clary Lake Water Level Order Appeal that was included in the August 15th Court Order (see “Clary Lake Water Level Order Appeal Update“) has been revised by the Court in response to a motion filed by counsel for Aquafortis Associates LLC [AQF] on August 30th. In addition to requesting a change to the briefing schedule, the motion also requested an increase in the number of pages allowed in the filings (Maine Judicial Court Rules specify page limits for different kinds of filings). Counsel for AQF cited conflicts with long-standing vacation arrangements for the requested change in filing deadlines. The motion was consented to by DEP (meaning the State did not object to the motion) and the court subsequently issued an ORDER on September 7th granting AQF’s motion in its entirety.

AQF’s  appeal brief was originally due 40 days from August 15th, on or about September 26th. The date for that initial filing is now October 6, 2017. The State’s Response Brief now is due on November 15, 2017 and the Petitioner’s Reply Brief is due December 4, 2017. The ORDER also granted Petitioner’s request for increased page limits.

I was somewhat dismayed (though not particularly surprised) to learn of the change in the briefing schedule since delays seem to be the way this game is played. I was nonetheless glad the filing dates were only pushed out 10 days. What has me scratching my head however is the fact that the MOTION and the ORDER both list Pleasant Pond Mill LLC [PPM] as a petitioner. I assume this is an oversight as PPM was removed from the suit by COURT ORDER on January 25, 2016 and while a few filings in early 2016 listed both PPM and AQF as petitioners, ALL filings in the last year have included only AQF as petitioner.

I don’t expect additional changes to the briefing schedule.

07 September 2017 Lincoln County News: Commissioners Hear about Clary Lake Dam

Last Tuesday September 5th CLA Board member Jane Chase and I and my wife Margaret attended the Lincoln County Commissioners meeting in Wiscasset to update them on the current status of the Clary Lake water level crisis. The meeting which lasted about 30 minutes came about as the result of a chance meeting between CLA President Malcolm Burson and County Administrator Carrie Kipfer at a Midcoast Conservancy function where they discussed the Clary Lake situation. Ms. Kipfer offered to put us on the agenda for the next County Commissioners meeting. Charlotte Boynton, staff reporter for the Lincoln County News attended the meeting and wrote up a short report of the meeting in this week’s Lincoln County News. The article didn’t make it into the online news site, so I’ve scanned a copy of it for our archive:

This is the first time we have met with the Lincoln County Commissioners though likely not the last; the purpose of this first meeting was to bring the Commissioners up to speed with where things stand with Clary Lake and answer any questions they had. They had a lot, and we covered a lot of ground in 30 minutes. While the Commissioners were generally aware of our water level crisis, they were not particularly familiar with many details surrounding the controversy. I found them genuinely interested and concerned, and fully expect they will be keeping a much closer eye on the situation going forward. We did not ask them to take any action at this time.

One minor correction to the article: the caption for the photograph lists the people left to right, and it should be right to left 🙂

September 2017 Whitefield News: Clary Lake Association Petition Delivered to DEP

The September 2017 issue of the Whitefield News has an article on the front page I wrote about the Clary Lake Association’s recent Petition initiative to DEP. The article includes a little background to help give people who are new to town or who haven’t been following the Clary Lake saga an idea of what’s been going on with our Lake. I hope to write for the Whitefield News from time to time.

The Whitefield News is the monthly newsletter of the own of Whitefield and is available free of charge at the Town Office, the North Whitefield Superette, the Sheepscot General, and as a PDF download on the Town of Whitefield website. Here’s a local copy if you have trouble getting it off the Town site:

August 2017 Water Level Chart Archived

8 waterlevelchart_August2017

August 2017

I have archived the August 2017 Water Level Chart (at left). The most notable feature of the August chart is the same thing that stood out in the June and July charts: how slowly the lake level fell especially considering how little rainfall we’ve received. The lake level fell steadily over the course of the month with the exception of a small blip up on the 19th of the month as the result of what passes for heavy rains these days. Over the course of the month of August the lake lost and average of only 0.16″ per day, falling only 4.68″ over the course of the entire month. In July it fell 0.21″ per day and in June, 0.38″ per day. These rates of fall are fully 1/2 of what one would expect given the water level. As I stated in last month’s posting, it appears the retarded outflows are the result of the outlet channel being clogged with plant growth. Continue reading →

Clary Lake water level story will run Thursday on “Maine Things Considered”

Most of you have heard that Susan Sharon of Maine Public Radio is doing a story on Clary Lake, I posted about it last week. I had expected a little more notice about when the story was going to run but I only found out this evening that it will probably air tomorrow  (Thursday, 8/31) at 5:30 pm on “Maine Things Considered.” If for some reason it doesn’t air Thursday, then it should be on Friday either on “Morning Edition” (6 am to 9 am daily) or “Maine Things Considered” at 5:30 pm.

If you happen to miss the on-air presentation, don’t worry! The story will be available on the Maine Public Radio website at some point, and I’ll post a link here when I get it.

Keep an eye out here for updates on this story!

27 August 2017 Centralmaine.com: Whitefield and Jefferson residents list frustrations in petition to DEP

There is an article in today’s Centralmaine.com papers  by staff writer Jessica Lowell about the Petition we submitted to DEP last week. The article is in the Kennebec Journal, the Morning Sentinel, and was also picked up by the Portland Press Herald. I love all the publicity! Everywhere I’ve been this week people are mentioning Clary Lake, the petition, and asking me what’s new:

Whitefield and Jefferson residents list frustrations in petition to DEP

I assume the “good faith effort by DEP to bring relief to the residents around Clary Lake” referred to by DEP spokesperson David Madore was the 13 or so months of court-ordered mediation that ended in March 2015. The Notice of Violation (NOV) mentioned was subsequently issued in late September 2015.

My only complaint about the article: they could have used a new photograph! They’re still using a picture included in a story from August 2015.

23 August 2017 Lincoln County News: Petition Calls on DEP to Enforce Clary Lake Water-Level Order

There’s an article in this week’s Lincoln County News by Staff Reporter Abigail Adams about the Petition we filed with DEP on Monday, August 21st. It’s a detailed and timely writeup. Ms. Adams includes a comment from David Madore, DEP Spokesperson, to the effect that “the petition is under review.” The CLA Board has yet to get a response to the Petition from the Commissioner’s office.

I’ve archived a copy of the article should you have trouble getting it off the paper now, or in the future: