When state environmental officials issued a notice of violation at the end of September to the owner of the Clary Lake dam, it came as a bit of a surprise.
Earlier this year, Mark Bergeron, director of the Division of Land Resource Regulation at the Maine Department of Environmental Protection, had said the department is waiting for the resolution of an appeal that’s now in court in Lincoln County about the water level order that DEP issued to the dam owner at the beginning of 2014.
In response, attorneys for the owner of the dam impounding Clary Lake now are seeking a stay in enforcing that order until the court case is resolved.
This is only the latest round in a complicated case that dates back at least four years centering on Clary Lake, which straddles the Whitefield-Jefferson municipal boundary in northern Lincoln County. Damage to the dam during Tropical Storm Irene in 2011 has resulted in a persistently low water level that a dry summer this year made worse. Lakefront property owners have been frustrated by the lack of a resolution.
The notice of violation, which names Paul Kelley, Pleasant Pond Mill LLC, Richard Smith and AquaFortis Associates LLC, spells out the violations — failing to meet the 2014 water level order, failing to submit a surveyed plan showing the normal high-water mark of Clary Lake, failing to obtain DEP approval for a final water level management plan, failing to install a lake gauge and file a report detailing the inspection results of its installation, and failing to allow the lake to rise gradually between ice-out in 2015 until Aug. 1.
Attorneys for Pleasant Pond Mill LLC contend, among other issues, that complying with the notice of violation is impossible because it sets deadlines that cannot be met. The attorneys note that Pleasant Pond Mill has only 15 days to comply with the minimum flow provisions of the water level order and to “undertake all other steps necessary to prevent further dewatering of the lake and begin raising the level of the lake in compliance with the (water level order).” To maintain a consistent lake level, Pleasant Pond Mill would need to apply for and be granted permission under the Natural Resources Protection Act in that time and fix the dam.
Kelley said other deadlines spelled out in the notice of violation are coming up, and they are unachievable.
“Every single one of those issues is being litigated in court,” he said.
Beyond that, Pleasant Pond Mills’ attorneys are challenging the DEP’s authority to order dam repairs in this case, DEP’s interpretation of the Water Level Act that it cites, and the parties it named in the notice. They say Kelley and Smith should not have been named as individuals, and the DEP has not proved that it has jurisdiction over AquaFortis Associates.
Bergeron did not return calls for comment Friday. The department, through its spokesman, David Madore, declined to comment on the case last week, citing litigation.
The notice of violation was issued only weeks after the Whitefield Select Board and Sen. Chris Johnson, D-Somerville, and Rep. Deb Sanderson, R-Chelsea, sent letters to the DEP urging action following a public meeting in Whitefield.
“I don’t expect anything to come of this right off,” George Fergusson said last week.
Fergusson is one of the property owners affected by the low water levels and is the spokesman for the group of property owners who sent a petition to the state over the persistent low water levels three years ago.
“I don’t think the DEP will stay its own enforcement action,” he said.
Jessica Lowell — 621-5632
Twitter: @JLowellKJ
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