Mediation between the owner of a Whitefield dam and the state over a water level order issued for Clary Lake is set to begin shortly, but the dam owner is still responsible for complying with the requirements of the order in the meantime.
Although the state Department of Environmental Protection hasn’t accepted any of the dam owner’s attempts to comply with the order so far, the spokeswoman for the department said the DEP still expects the dam owner to begin maintaining the higher water levels by Oct. 1.
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The dam owner, Pleasant Pond Mill LLC, appealed the water level order to Lincoln County Superior Court in February, requesting the parties enter a land-use mediation program or the court invalidate or modify the water level order. The court case has been stayed while the parties, which include AquaFortis Associates LLC, another company that owns the mill on the other side of Route 218 and a 1-acre strip abutting the dam property, and the Maine Department of Inland Fisheries and Wildlife, take part in the mediation.
Paul Kelley, the manager of Pleasant Pond Mill LLC, said the first meeting is scheduled for the end of this month, and the process will likely extend into August.
“My hope is that all the parties see that the best solution is no longer to fight this but to try to see if there is some constructive solution,” Kelley said, “which would hopefully apply the law correctly and restore the lake with some sort of balanced approach toward our rights and responsibilities.”
Kelley, of Camden, has maintained throughout the process that the department doesn’t have jurisdiction or statutory authority to issue the water level order or require repairs to the dam, which was damaged in 2011 by Tropical Storm Irene. He has partly blamed what he has called procedural errors during the process on the inexperience of department staff.
However, previous motions by Kelley to dismiss the water level case, citing reasons similar to those in the lawsuit, were rejected by the department upon the advice of the Office of the Maine Attorney General.
The water level order issued by the department in January was the result of a two-year-long process marked by lengthy legal briefs, motions for extensions, and clashes between the dam owner and the landowners who petitioned the department to set a water level for the 667-acre lake.
Disagreements over the water level of the lake in Jefferson and Whitefield date back more than two decades — long before the current owners bought the dam in 2006 as part of a plan to renovate the mill across the street. Surrounding landowners initiated the process by filing a petition at the end of 2011 asking the department to intervene over concerns that the lower lake level hurt the wildlife and the recreational use of Clary Lake.
This was the first water level order process handled by the department. Previously, the state Board of Environmental Protection handled the requests, but the department took it over after the state passed a law in 2011 overhauling regulatory rules, according to department spokeswoman Jessamine Logan. The last water level order was issued by the board in 1997 for China Lake, Logan said.
The second water level order handled by the department — issued in June for Branch Pond, less than 20 miles north of Clary Lake — has resulted in even less cooperation from the dam owners.
The owners of the dam in China, Stephen and Christine Coombs, declared in a letter emailed to DEP Commissioner Patricia Aho on June 3 that the water level order is illegal and that they won’t follow it. The Coombs, of Sandwich, New Hampshire, wrote that they’ll continue to operate the lake at a water level that will protect the dam and mill structures.
The letter was also emailed to state legislators and other interested parties, including the Kennebec Journal. The department received it but hasn’t yet responded, Logan said. The Coombs couldn’t immediately be reached for comment.
One of the landowners on Branch Pond and an intervener in the case, Michael J. Wozniak, said Thursday that the water level is fine currently, but the dam owners have lowered it significantly in the past “at the drop of a hat.”
“That’s kind of where we stand,” Wozniak said. “Time will tell, in terms of how this goes, whether they’ll comply or not and whether the department will follow through on enforcement.”
For the Clary Lake case, the dam owner has met deadlines to submit a water level management plan and water level survey, but both were deemed unacceptable by the department. The DEP gave Kelley until July 2 to resubmit the management plan and until July 21 for the water level survey.
In a July 2 letter to the department, Kelley wrote that the company believes it has made a reasonable attempt to comply in its previous submissions. He asked for a meeting with the department to discuss details of the water level order implementation prior to the mediation. He said in the letter that the department has failed to issue a Natural Resource Protection Act permit necessary to implement the order.
The department will review and respond to the letter when the project manager, Beth Callahan, returns from vacation next week, Logan said.
Kelley said in a phone interview Thursday that his company would still like to find a way to help repair the dam as part of a historical rehabilitation project, as envisioned a decade ago.
“We’re very hopeful that the state is going to be open minded and solution oriented in mediation because I think there’s a solution,” he said. “But it’s not down the path we’ve been walking the past two-and-a-half years.”
However, the spokesman for landowners who petitioned the department to issue a water level order, isn’t optimistic the mediation will lead to anything productive.
“I don’t expect anything to come from mediation,” said George Fergusson, of Whitefield. “I don’t see where there’s anything to mediate. There’s a water level order, and they can obey it or contest it. And they’re contesting it.”
Paul Koenig — 621-5663
Twitter: @paul_koenig
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