It’s been more than a year since the owner of Clary Lake Dam in Whitefield filed a lawsuit appealing a water level order from the state, and not much has changed.

The dam’s owners and property owners around the 667-acre lake in Jefferson and Whitefield have tussled about the lake’s water level for more than two decades, but low water levels in recent years led surrounding landowners to petition the Maine Department of Environmental Protection at the end of 2011 to order a management plan.

After a two-year-long process, the department issued its order in January 2014 outlining how the owner must operate the dam and setting a deadline of October 2014 to make repairs to the 112-year-old structure. But the owner of the dam along Route 218, Pleasant Pond Mill LLC, appealed the water level order to Lincoln County Superior Court in February and requested the parties enter a land-use mediation program or that the court invalidate or modify the water level order.

The parties have been in mediation since last July.

Paul Kelley, the manager of Pleasant Pond Mill LLC, argued throughout the process that the department didn’t have jurisdiction or statutory authority to issue the water level order or require repairs to the dam, blaming what he called procedural errors during the process on the inexperience of the department staff. The suit also claims that the water level order will force the company to flood permanently or periodically the private property of upstream landowners.

The department, after getting advice of the Office of the Maine Attorney General, had rejected similar claims to those in the lawsuit throughout the water level petition process.

Kelley said parties in the mediation, besides his company and the attorney general’s office on behalf of the department, include AquaFortis Associates LLC, which owns the mill on the other side of Route 218 and a 1-acre strip abutting the dam property; Arthur Enos, who sold the dam Pleasant Pond Mill LLC in 2006 and holds the mortgage on the dam; and Frederick Duncan, a landowner on the lake.

Thomas Harnett, the assistant attorney general representing the department, said there have been about three mediation sessions held with all parties. He said everyone is trying to work out a way to resolve the issue without continued litigation.

“Mediation can’t go on forever, but as of now, there is no deadline,” Harnett said. “Ultimately, the parties can end mediation or the court can say too much time has elapsed, but neither of those things have happened.”

The department has held off enforcing the deadlines of the water level order while the mediation has been going on, according Karl Wilkins, spokesman for the Department of Environmental Protection.

“We are working with the help of a mediator, with the Office of Attorney General and the parties to find a mediated solution for the project,” Wilkins said in an email. “Enforcement action is not ‘on hold’ in the way that we might put an application on hold with the concurrence of the applicant.”

The department also has delayed another petition filed by Pleasant Pond Mill LLC in 2013 to release ownership of the dam.

However, the previous spokeswoman for the department, Jessamine Logan, told the Kennebec Journal in July that the department expected the dam owner to still comply with the requirements of the order.

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 the department.

The Whitefield Board of Selectmen sent a letter to Harnett in August asking him to help expedite the mediation process and enforce any violations of the department’s water level order. The selectmen wrote that the low water level has affected the community and environment significantly, including the lake’s suitability for recreation, navigation and as a habitant for fish and other water-dependent species.

George Fergusson, the spokesman for petitioning landowners and a board member of the Clary Lake Association, said the lake level remained low and that the “ongoing environmental crisis” hasn’t improved.

“My expectations are that something’s going to have to happen soon. I can’t imagine the court is going to let them just sit on this forever,” he said.

Fergusson, of Whitefield, said the association has hired a lawyer to negotiate a settlement with the dam owner for the association to take over ownership, but no settlement has been reached.

Paul Koenig — 621-5663

[email protected]

Twitter: @paul_koenig


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