Property owners on Clary Lake hope a water level management plan from the state will solve their low-water woes, but the dam owner is arguing that an order isn’t possible or enforceable.
The two parties submitted their closing statements for the state Department of Environmental Protection water level petition on Monday.
Property owners on the 667-acre lake in Jefferson and Whitefield petitioned the department at the beginning of last year to order a water level management plan for the owners of Clary Lake dam because of complaints of a low water level.
The low level has limited access to the lake and eliminated over 42 acres of wetland, according to property owners and state departments.
The manager of the company that owns that dam, however, raised questions in his 44-page final brief as to whether DEP has jurisdiction to issue a water level order for Clary Lake dam or enforce an order.
Paul Kelley, manager of Pleasant Pond Mill LLC, also suggested the department should dismiss the permit.
Mark Bergeron, director of the DEP’s Division of Land Resource Regulation, said the department has jurisdiction to issue an order, as well as the ability to enforce it.
Bergeron said the DEP doesn’t have a timeline of when the commissioner will issue the order.
The department’s order can be appealed to the Board of Environmental Protection.
George Fergusson, spokesman for the petitioners and a lakefront property owner in Whitefield, wrote in his final comments that the petitioners believe a water level one foot below the crest of the dam would be appropriate.
But Kelley said the foot-wide hole in the dam caused by tropical storm Irene in August 2011 prevents the dam from holding a higher water level.
He said the company has tried to keep the water below the hole.
An order to maintain the water above the hole, which he said is 36 inches below the crest, would be impossible to follow, Kelley said.
Besides a water level, the department’s order can contain restrictions on the amount of water flowing out of the lake, said Bergeron.
The department’s order, which is a summary of its findings, could also not have final water level or flow restrictions, Bergeron said.
The DEP accepted the petition signed by over 50 lakefront property owners in January 2012 and held a public hearing in August of the same year.
Both sides have admitted that disputes over the water level have gone on for decades before Pleasant Pond Mill LLC acquired the property in 2006, but Fergusson has said the situation worsened under the new ownership, particularly since the fall of 2011.
“I don’t know when to expect them to come out with an order, but I’d like to think it would be sooner rather than later,” Fergusson said.
Kelley doesn’t think an order would solve the issue of the low water level, and he said he doesn’t expect it will end the process.
“It’s gonna involve more lawyers, I’m sure. It’s going to involve more processes,” he said. “I don’t see how a water level order is going to get (the petitioners) to the place (they) want to be.”
His company filed a petition in April with the DEP to release ownership of the dam.
The DEP sent a letter saying that the petition will be rejected because not all the landowners were properly notified. Kelley has said he’ll continue with the process and submit a report that’s due in September.
One of Kelley’s objections in his final brief — and an objection that he raised previously — is that the department already gave permission in September 2011 for his company to lower the lake water below the hole to prepare for dam repairs.
Repairs haven’t been made to the dam, but Kelley said the water level petition derailed the repair efforts.
Kelley said the department issuing the permit by rule to lower the level to make repairs should have prevented the water level petition from even being filed.
“It is clear that they made mistakes, and rather than stop and correct the mistakes when they had a chance through the process,” Kelley said, “they just kept pushing through, and more mistakes were made.”
Throughout the process, Kelley said the DEP made errors as a result of no longer having the experience of Dana Murch, the former dam supervisor for the department, who retired in 2011 after more than 30 years on the job.
He again addressed it in his closing arguments.
When asked about the effect of Murch’s departure on the department, Bergeron said, “I’d rather not comment on that at this point.”
A previous spokeswoman of the department, Samantha Warren, said in February that the department lost an “incredible amount of institutional memory” when Murch retired, but she didn’t think it negatively affected either party involved in the water level petition.
Fergusson agreed with Kelley that it appeared DEP staffers didn’t know what they were doing at times, pointing to when the department didn’t respond to a motion to dismiss from Pleasant Pond Mill LLC for five months.
“Not a peep out of them for five months. What were they doing? I don’t know,” Fergusson said. “That was very disturbing. We could have a normal high water line if they dealt with this more quickly.”
Kelley also wrote in his final comments that the department should strike all testimony from Fergusson because Fergusson hasn’t been a licensed land surveyor since 1998.
Fergusson said he never purported to be a currently licensed land surveyor, and his testimony and evidence was as a lakefront land owner and petition spokesman.
Jessamine Logan, a spokeswoman for the department, said the department didn’t consider Fergusson’s testimony as that of a land surveyor, and that his lack of a current license won’t affect how it views his testimony.
Kelley also accused the Clary Lake Association, of which Fergusson is a member and former president, of falsely stating it is a federal 501(c)(3) nonprofit organization. He filed a complaint with the state Office of the Attorney General.
Fergusson said he hadn’t realized that was the case until Kelley pointed it out and the association would rectify it. He said the association not registering didn’t mean it wasn’t a nonprofit.
“It’s Paul (Kelley) just trying to discredit everything and everyone he can,” Fergusson said. “He’s discrediting the department. He’s discrediting the Clary Lake Association. He’s discrediting me.”
The spokesman for attorney general’s office, Timothy Feeley, said the office determined the issue would be better addressed by the state Department of Professional and Financial Regulation and the Internal Revenue Service.
Paul Koenig — 621-5663