The owners of an historic dam at the head of Clary Lake in Whitefield have retained legal counsel, after members of the Clary Lake Association (CLA) and others filed a water level petition to determine the appropriate depth of water and minimum flows for the lake that lies between Whitefield and Jefferson.
The petition, filed last December with the Dept. of Environmental Protection, asks that the department establish a required water level for Clary Lake. Originally named Pleasant Pond, the lake was renamed after Henry Clary built the dam and adjacent mill near the turn of the 20th century.
The dam and adjacent mill buildings on both sides of Mills Road were purchased in 2006 by Pleasant Pond Mill, LLC (PPM), a partnership that includes Paul Kelley and Richard Smith, both of Camden.
In 2010, the buildings on the west side of the road were sold to another entity, Aquafortis LLC, of which Kelley is the authorized representative. Those buildings are listed in the National Register of Historic Places.
CLA member George Fergusson said he initiated the water level petition because other efforts to get PPM to repair the dam had failed. He said the association’s main interest is in protecting the health and welfare of the lake.
“The general practice is to lower the water somewhat in the late fall to prevent ice damage below the dam.” Fergusson said.
According to Fergusson, the average depth of Clary Lake is approximately 12 feet.
He said PPM lowered the level by five feet earlier this spring. In spite of a great deal of rain, he said the water level was still three feet below its usual spring level in early June.
“The wildlife don’t care what the water level is, but they don’t like it to change too much,” Fergusson said. He said a pair of loons built their 2012 nest near the northwest shore of the lake, below the location where they had previously done so, because the level was lower than usual.
Some days later, the dam was closed and the rising water destroyed the nest, he said.
“Current water management at Clary Lake has resulted in inconsistent and frequently low water levels,” a March 16 report from the Dept. of Inland Fisheries and Wildlife states.
It lists moderate value waterfowl and wading bird habitat, two mapped Bald Eagle nests and a deer wintering area, and states that the lake is managed as a quality fishery for both species of Black Bass.
During a site visit in January the bird habitat on the northeast shore was “completely de-watered. Water must be present in order for this wetland to perform the functions and values associated with emergent wetland types,” the report states, adding, “Bald Eagles would benefit from a long term strategy that protects the fishery resources at Clary Lake as this provides a primary forage base that these resident eagles require.”
The report recommends the lake be fully impounded following ice-out, in order to provide brood cover for waterfowl and that this level be maintained through June.
While it supports lowering the level in fall and winter to reduce ice action against the dam, it calls for keeping levels stable.
The report states multiple concerns with fluctuating or decreased water levels as: being deleterious to nesting waterfowl and water-dependent wildlife; could pose damage to state-owned boat ramp; and, there’s a negative impact on sport fishing regarding necessary fish spawning and foraging.
The dam is designed to control the flow of water through a gate at the bottom, but dam weaknesses throughout have allowed water to flow, even when the gate is closed.
According to Clary Lake Association President Ellis Percy, Aquafortis owns the water rights at the site.
Percy said the 50-member CLA would like to purchase the dam and the associated land and building on the east side of Mills Road.
“Our goal is to turn it into a little park,” Percy said, adding such a sale would have to include dam water and flowage rights. He said funds are available for the purchase.
“We have a benefactor that is willing to help with that and I have a business relationship with a firm in Portland that does dam repairs,” Percy said.
Once owned, Percy said CLA intends to have engineering firm Kleinschmidt Associates assess the dam. “Ten years ago, we probably could have fixed it ourselves. At this point we would need professional people doing the repair work.”
The original proposals from PPM included variances from local shoreland zoning and lot density rules.
In his suit, PPM’s Kelley called for penalties to be imposed against the town and for valuation increases on the property to be rescinded.
Board of Selectmen Chairman Steven McCormick said PPM’s case against the town was resolved when, “It was basically thrown out by the court.”
“The challenge for everyone involved here, – the lake association, the owners and the town – is to find a resolution in the public interest,” PPM’s attorney Anthony Buxton said. “That requires a balance between the private interest and the public interest.” Buxton said PPM retained him because he is familiar with the legal issues involved with dams.
“What I hope to do here is to provide some knowledge of water level disputes, to examine the immediate facts, help deal with the water level petition and to deal with the underlying issue.”
Buxton said the town needs to “deal affirmatively” with PPM, “as opposed to not dealing with it.” He said that, to date, Whitefield has been delaying action that could clarify issues.
“The town does not have [a] shoreland zoning ordinance,” Buxton said. “It was repealed and never replaced.” He said the impact of a state shoreland zoning ordinance must also be explored.
Whitefield Planning Board Chairman Bob Bills said the town must follow 1993 state shoreland zoning rules because an attempt two years ago to enact a new municipal ordinance failed at the polls. Bills said he expects that state ordinance to change in the coming year.
“Over the years, the state has continued to improve water quality by making its ordinance more strict,” Bills said.
Bills said PPM had a permit to move the red building sitting atop the dam, add a septic system and make it a liveable structure, but the planning board could not allow requests to expand the size of that building or the number of dwellings in the large mill building on the west side of Mills Road.
“He [PPM/Kelley] might be able to reapply,” Bills said. He said zoning setbacks for the lakeshore differ from those governing the Sheepscot River and the stream that runs between the two, and that all rules could change if the dam were to blow out.
“If the Clary Lake dam goes away, there’s going to be nothing but a stream,” he said.
Bills said the Planning Board has received no communication from Aquafortis and that he is uncertain as to whether the permit given to PPM could be transferred to a new owner.
“The land has changed shape,” Bills said. “I’m not sure if the planning board can honor the old permit.”
He said the state’s shoreland zoning ordinance may offer PPM opportunities that did not exist under the town’s 1974 ordinance, while other aspects of the state rule may be more restrictive.
Buxton said PPM’s intention has been to take an unused resource and turn it into something useful that would have paid for the sustainability of the dam, particularly since there’s a dysfunctional 100 kilowatt turbine at the dam, formerly part of its design, but that no longer generates power.
“That’s enough to produce electricity for the town of Whitefield,” he said. “Not necessarily all the time, but part of the time. That’s an opportunity that’s being missed.”
Buxton said there were legitimate business reasons for having the property’s ownership split between two different entities.
“They are different pieces of property,” he said “A critical factor is the insurability of a dam. There’s a natural tendency to separate it from other assets so you can get those assets insured.”
He could not confirm that the water rights were held by Aquafortis and said, “I don’t know how you use water rights without a dam. It’s a pertinent use.”
Buxton said CLA’s reaction to the situation was natural, but not constructive.
“My clients may be responsible for a lot of stuff but they’re not responsible for the amount of rain we’ve been getting,” Buxton said. “If loons were hurt, that is tragic. We all love loons. And they’re important.”
“We need to move forward and try to find solutions that work,” Buxton said. “My clients have worked very hard to try to do something useful in the town of Whitefield. I have two obligations. First, to protect my clients from abuse, and secondly, to find a solution.”
Because there are no dwellings or significant infrastructure downstream of the dam, the Maine Emergency Management Agency considers it a low-risk dam.
With only one state dam inspector, a 2001 Dam Safety Law only requires regular dam inspections for high and significant hazard dams.
“We don’t believe it’s a threat to other buildings,” MEMA Director of Operations Mark Hyland said. “That’s why it’s listed as a low hazard dam. He said his agency received a request from DEP to comment on the petition, but that MEMA had no comments.
Hyland said the integrity of the dam was the owner’s responsibility.
Clary Mill was built just prior to the start of the 20th century and manufactured lumber and other wood products until the availability of portable saw mills changed the nature of its business a half-century later.