The head of the company that owns Clary Lake Dam in Whitefield submitted scathing comments Monday to the state in response to the proposed water level management plan for the lake, while the opposing party of landowners had no major objections to the plan.
Paul Kelley, manager of Pleasant Pond Mill LLC, which owns the dam on Clary Lake, criticized the state Department of Environmental Protection for what he said were procedural missteps during the two-year process and accused the department of trying to move the proposal forward without giving him enough time to consult his attorney and experts about the effects of the plan.
In his comments, Kelley called some of the department’s data “erroneous, arbitrary and biased.” He also wrote that when he pointed out procedural errors, “the DEP’s only answer after nearly two years of proceedings was to change the ‘rules’ it made up in the first place.”
“Depending on what’s in the final order, there is a strong likelihood that it will be appealed,” Kelley said in a phone interview Tuesday. He said he may appeal the final order to either the Board of Environmental Protection or through the court system.
The spokeswoman for the department said Tuesday the department will review the submitted comments and issue the final order “in the near future.”
As for the complaints Kelley raised, spokeswoman Jessamine Logan said: “We will be reviewing them, but we won’t be specifically responding to those.”
She said given the history of objections by Kelley, it wouldn’t come as a surprise if his company appealed the order. However, the water level order will remain in effect during any appeal process, Logan said.
Besides Kelley, the department received comments of support from George Fergusson, spokesman for the petitioners who asked the department to set a water level regime, state Sen. Christopher Johnson, D-Somerville, the U.S. Fish and Wildlife Service, the National Marine Fisheries Services, the Clary Lake Association and a former lakefront landowner.
Fergusson offered minor corrections in his comments, like changing the way a water level gauge is installed, but said he would be happy if the department issues the plan without any changes.
Given the plan has deadlines for Pleasant Pond Mill LLC to meet, Fergusson said he expects the department move forward with the final plan shortly, possibly as soon as by the end of the week.
“The department will act swiftly and bring the hammer down, and it will not be pretty,” he said. “That’s what I think will happen.”
The draft plan is the result of a two-year departmental process to gather evidence necessary to order the water level regime for the dam owner. The draft plan includes requiring a stable water level and setting the amount of water that can flow through the dam.
Surrounding landowners initiated the process by filing a petition asking the department to intervene over concerns that the lower lake level was hurtful to the surrounding wildlife and the recreational use of the 667-acre lake in the towns of Whitefield and Jefferson. Kelley has countered that because of damage the dam sustained by a storm in the fall of 2011, it’s unable to hold a higher water level without risking damage to a historical mill directly downstream.
Pleasant Pond Mill LLC has only owned the dam located along Route 218 since 2006, but disputes over the water level of the lake and the condition of the dam have dated back to over two decades ago, according to the department.
The DEP issued the draft lake management plan Dec. 19, setting deadlines for making repairs to the dam and outlining how it must be operated. Parties originally had until Dec. 27 to respond to the plan, but the DEP extended the deadline to Monday, following a request from Kelley to extend the deadline a month because of inclement weather and two holidays. Last week the department denied an additional extension request from Kelley.
The water level order, if issued as is by the department, would require the dam owner to make repairs to the dam by next October.
The dam owner would also be required to keep the water level no more than two feet below the lake’s historical normal high water line, determined by professional licensed land surveyor contracted by the dam owner.
Kelley, however, thinks the department should have determined the water level during the process.
But the department has maintained that requiring a dam owner to hire an expert to establish the water level has been past practice for similar situations, although it has never undertaken this process in the past.
According to the department, the Clary Lake water level dispute is the first adjudicatory water level process it’s ever conducted. As part of the process laid out in state law, the department held a public hearing in August 2012 to allow both parties to present evidence and cross examine both the evidence and those testifying.
Pleasant Pond Mill LLC had bought the more than 100-year-old mill on the other side of Route 218 of the dam in 2003 to renovate the property into a working hydraulic dam again and add residential and commercial units to the mill. The partnership fell apart seven years later when some members felt the development was unattainable, according Kelley.
Then a different company, AquaFortis Associates LLC, formed to buy the mill, the one-acre strip abutting the dam property and the house, leaving Kelley managing Pleasant Pond Mill LLC and the dam.