WHITEFIELD — Pessimism is growing about the future of Clary Lake and its dilapidated dam as a complicated fight deepens among residents, state environmental officials and the dam’s owners.
Some property owners on Clary Lake who are fed up with low water levels caused by the deterioration of the lake’s dam filed a petition last year asking the Maine Department of Environmental Protection to order a higher water level.
The case had been stalled since the dam’s owners filed a motion for that request to be dismissed, saying a department official conducted an unauthorized water depth study without alerting both parties and after improper communication with the property owners.
It appears the department will deny the dam owners’ motion to dismiss in a decision expected this week.
Samantha Depoy-Warren, spokeswoman for the DEP, said the Office of the Maine Attorney General confirmed it was appropriate for the DEP staffer to conduct the study without notifying the parties. The department hopes to have a final decision by the summer, although an appeal is likely, Depoy-Warren said.
The owners of the dam, Pleasant Pond Mill LLC, originally purchased the mill across the street from the dam in 2003 to renovate the property into a working hydraulic dam again and add up to six residential and commercial units to the mill, according to the company manager. The mill is more than a hundred years old
The company successfully petitioned the Maine Historic Preservation Commission to add the mill and the dam as a contributing structure to the National Register of Historic Places in 2004.
The dam, with a 0.13-acre strip of land, was purchased in 2006 by the company in order to protect a small house on the lot from possibly being removed, said Paul Kelley, manager of Pleasant Pond Mill LLC.
The mill is on about 3 acres on the west side of Route 218 with another dam in front of the mill. Water from the two dams feed into the Sheepscot River.
Seven years after it bought the mill, the partnership fell apart when it was clear to some members that development at the mill was unattainable, Kelley said.
A different company formed, AquaFortis Associates, to buy the mill, the 1-acre strip abutting the dam property and the house, leaving Kelley managing Pleasant Pond Mill LLC and the dam.
Richard Smith, of Camden, left Pleasant Pond Mill LLC to join AquaFortis Associates.
Kelley blames the lack of progress in developing the property on Whitefield town officials, who he said refused to work toward a viable solution for the dam and mill despite a willingness from his company to invest in the properties.
But town officials say local and state ordinances and regulations made the company’s plan impossible to allow.
A restoration of the historic mill and dam in Whitefield, at least in the way the company had proposed, is unlikely without significant effort and additional studies by the company, said Bob Bills, chairman and longtime member of the Planning Board.
Bills has done business previously with Pleasant Pond Mill LLC. He designed the septic system for the mill property during the sale process.
Kelley said his company did its due diligence before purchasing the property but was met with a town unwilling to put forth the effort to complete the project and change outdated ordinances.
George Ferguson, spokesman for the property petitioners and a member of the Clary Lake Association, said the water level issue at the lake has been going on intermittently for more than 50 years.
The issue was contentious well before Pleasant Pond Mill LLC bought the land.
A previous water level petition circulated by property owners in 2005 caused the dams’ former owner, Arthur Enos, to sell the dam to the Camden-based Pleasant Pond Mill LLC, Ferguson said.
He said the situation worsened under the new ownership, particularly since the fall of 2011, after Tropical Storm Irene damaged the dam in August, causing a big hole to form in it.
Kelley said his company lowered the lake water below the hole in the dam to protect the mill downstream from damages caused by significant water flow. The water level also was lowered to prepare for dam repairs, which the DEP approved in September 2011.
But the repairs haven’t been made.
Kelley, citing state law, argues that the DEP shouldn’t have approved the water level petition filed by property owners because the DEP already had granted a permit allowing the company to lower the level for the dam repairs.
Kelley said he doesn’t think the department would have accepted the petition if Dana Murch, the former dam supervisor who retired in 2011, had still been at the department.
Depoy-Warren said the department lost a lot of institutional memory when Murch retired after 30 years at the DEP, but she doesn’t think anyone in the case was done a disservice by the departure.
The petitioners submitted evidence for the case that the water level reached a low point of more than 5 feet below the top of the dam last year. That would be 2 feet lower than it ever had been between 1997 and 2007, according to David Hodsdon, a lakefront property owner who measured the water level for the Maine Volunteer Lake Monitoring Program.
Ferguson said the level is now 58 inches below the dam’s crest.
The lake association is requesting a level of 12 inches, plus or minus 3 inches, from the top of the dam.
Clary Lake is roughly 2.5 acres wide, encompassing both Whitefield and Jefferson. Lakefront property is privately owned besides 5 acres of conserved land with a state-owned boat launch.
The DEP accepted the petition signed by 108 property owners in January 2012. It asked that the department set a water level and flow management plan for the lake. After collecting evidence from the two parties, the department held the petition hearing in Jefferson on Aug. 17.
The dam owners’ lawyer, Anthony Buxton of PretiFlaherty, submitted a motion on Oct. 2 to dismiss the case on the grounds that DEP officials exhibited bias toward the petitioners by improperly communicating with them.
The department conducted a study of the lake’s depth in September that the dam owners found out about from the Clary Lake Association’s website.
Buxton wrote in the letter to the DEP that his clients were denied due process by the department when it conducted the study without notifying the dam owners beforehand.
Ferguson believes the study was done because testimony during the hearing cast doubt on the data used by the DEP to calculate lake depth.
Ferguson said the petitioners’ main concern is the ecological damage done to the lake as a result of low and varying water levels.
Representatives from the Maine Department of Inland Fisheries and Wildlife testified at the August hearing that the department is most concerned with inland waterfowl and wading bird habitats that have been lost because of the lower water level.
“It’s tough to have a wetland if you don’t have water,” said Keel Kemper, wildlife biologist for the region, who testified at the hearing.
The lower water level has eliminated more than 42 acres of emergent wetland that the department values highly, he said. Only 3 percent of wetland in the state is considered emergent, according to Kemper, who described such land as having plants such as water lilies and providing nesting and brood-rearing habitats for ducks and wading birds such as herons.
“If you don’t have the habitat there, the critters aren’t going to be able to go in and use it,” Kemper said. “Ducks don’t like to land in the mud.”
He said the effect of losing the wetland is that they would expect a lower production of waterfowl.
One of the petitioners who lives near the depleted wetlands, Sue McKeen, said she’s seen less wildlife since the water dropped more than a year ago and can no longer put a kayak or canoe into the lake in front of her house.
She joked that at least she has more land now, although she no longer has lakefront property
“Basically, when all this happened, it was kind of a fast-food restaurant for all the coyotes. … The whole ecosystem here is changed,” McKeen said.
Kemper said his department also is concerned that the low water level prevents people from using a boat ramp on the east end of the lake, which the Department of Inland Fisheries and Wildlife completed in 2003. The $100,000 cost of the boat launch and 5.18 acres of land was paid for by federal and state grants and department funding.
“Under the current water level scenario, it’s virtually unusable,” he said, “so you’ve got a public boat ramp that’s not able to be utilized by the public.”
Sen. Chris Johnson, D-Somerville, and Rep. Deborah Sanderson, R-Chelsea, both spoke at the public hearing in support of the petition and cross-examined witnesses.
Johnson said the petitioners were right to seek a water-level order from the department in order to protect the lake’s wildlife.
“We have so many areas that are fields that used to be wetlands,” he said. “That’s criminal, in my mind.”
Kelley said he won’t know a timetable of when dam repairs might be done until after the water level petition process is finished.
He said repairs to the dam need to be coupled with restoration to the mill building owned by AquaFortis Associates.
Buxton, also the attorney for AquaFortis Associates, said his clients separated the ownership of the dam from the mill because the mill couldn’t be insured if connected with the dam as a result of the town not joining the National Flood Insurance Program.
Whitefield is one of only 31 Maine communities not participating in the program, according to the Federal Emergency Management Agency.
That prevents landowners in the town from buying federally backed flood insurance and limits assistance after a federally declared disaster, said Sue Baker, the program’s state coordinator.
Lake property owners have questioned the seriousness of Kelley’s plan to repair the dam, given that no repairs have been done, but Kelley said his company was in the planning stages of repairs when they were blindsided by the permit at the beginning of February.
Pleasant Pond Mill LLC “had hoped to restore and preserve dam, and due to the state and local regulatory nightmare, could not do anything, or at least could not do anything in any financially viable path,” Kelley said. “We’re at a position now that if other interests want to assert their rights, that they should step up to their responsibilities.”
He said the town or lake association could develop a plan to buy and maintain the dam. Otherwise, it risks falling further into disrepair.
Ferguson isn’t optimistic that a compromise among the dam and mill owners and the residents can be reached.
“I think people would be willing to help repair the dam, but I think at this point and after this many years and this much ill will, I don’t think anyone wants to have anything to do with Paul Kelley and his dam,” Ferguson said. “So I don’t think that’s likely anymore.”
Murch, the former dam supervisor for the DEP, urged all parties to find a solution in a letter dated May 1, 2007.
“In the end, someone needs to devote sufficient time and money to maintain and operate the dam in an acceptable manner, or else the water level disputes of years past will continue,” Murch wrote. “In a worst case scenario, the dam will become abandoned because no one is willing to pay for it, and the dam will then be breached or removed. I respectfully submit that this scenario serves no one’s interest.”
Paul Koenig — 621-5663