The state’s Department of Environmental Protection doesn’t know yet whether flow restrictions placed on the Clary Lake dam in Whitefield by its owner will affect the pending process of gathering petition signatures to set a water level on the lake.

The spokesman for the water level petitioners, George Fergusson, sent a copy of the declaration of the restrictive covenants to the department on Aug. 9, about a 1 1/2 weeks after it was signed by representatives of the companies that own the dam and mill property.

Property owners on the 667-acre lake in Jefferson and Whitefield have been seeking a water level order from the department for almost two years. They petitioned the department at the beginning of last year to order a water level management plan for the dam owners because of complaints of a low water level.

The department spokeswoman, Jessamine Logan, said there isn’t a timetable for when the commissioner will make a decision on the water level petition.

She said the department is reviewing the restrictive covenants and the comments from the two parties about them and doesn’t know whether the restrictions will affect the petition’s outcome.

The covenants state that the dam owner can’t reasonably allow more than 50 cubic of water feet per second to pass through the dam’s gate, the hole in the dam or over the dam because that much water will damage the historic mill building.

A restrictive covenant is a deed clause that limits what a property owner can do with certain property.

Paul Kelley, manager of Pleasant Pond Mill LLC, which owns the dam, said the restrictive covenants were placed on the property to address claims from the mill property owner, AquaFortis Associates LLC, about damage to the mill from excess water flow and flooding.

The covenants allow the owner of the mill property to recover damages or injunctive relief if the dam owner violates the agreement.

However, Fergusson said he thinks the covenants were placed to complicate the process and make the prospect of owning the dam — and potentially facing legal action if too much water is released — a less attractive prospect.

Pleasant Pond Mill LLC filed a petition in April with the DEP to release ownership of the dam, and part of the process includes trying to find a new dam owner.

Kelley said the restrictions placed on the dam will help protect the mill. He has criticized the petitioners in the past for not considering the property owners downstream from the mill.

“This is putting people on public notice, because people don’t seem to believe or understand this,” Kelley said. “People don’t want to look on the other side of the dam. This may open their eyes that there is an issue on both sides of the dam.”

Pleasant Pond Mill LLC originally bought the more-than-100-year-old mill on the other side of Route 218 from the dam in 2003 to renovate the property into a working hydraulic dam again and add residential and commercial units to the mill.

The company bought the dam, with a 0.13-acre strip of land, in 2006 to protect a small house on the lot from possibly being removed, according to Kelley. The partnership fell apart seven years after it bought the mill when attempts to develop the property failed.

Then a different company, AquaFortis Associates LLC, formed 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.

Disputes about the water level had gone on for decades before Pleasant Pond Mill LLC acquired the dam, but Fergusson has said the situation worsened under the new ownership, particularly since the fall of 2011.

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, so the company has tried keeping the water below the hole to minimize damage to the mill. He said the water level petition stalled efforts to repair the dam.

For Fergusson, the result of the situation is a water level that has stunted residents’ ability enjoy the lake and damaged wildlife.

“I sincerely hope the department acts swiftly and decisively — and soon,” he said.

Paul Koenig — 621-5663
[email protected]