The future operation of Clary Lake Dam in Whitefield awaits a Maine Dept. of Environmental Protection decision following a five-and-one-half hour hearing Aug. 17.
During the hearing, evidence was presented on a request to have DEP set the water level regime for Clary Lake in Whitefield and Jefferson.
More than 70 people crowded the meeting room at the Jefferson Fire and Rescue Station, with many standing along the sides and in the entry, to hear presentations by 32 lakeside property owners, represented by petitioner George Fergusson, and representatives of Pleasant Pond Mill LLC (PPM) and AquaFortis LLC, the companies that own the buildings, dams and other related infrastructure.
The hearing was presided over by DEP Policy Director Heather Parent, and was recorded. Parent told the assembly the DEP’s decision would weigh a variety of concerns, including navigation, fisheries and other wildlife issues, safety, erosion, water supply, recreation and other public uses.
Evidence was presented by Fergusson, the dam owners, the Clary Lake Association’s legal representative Attorney Robert J. Rubin, those with intervener status, representatives of government agencies and elected officials from the Legislature and municipalities involved. Each of those parties was given an opportunity to cross-examine presenters.
Fergusson made the first presentation, saying the dam owner failure to repair the dam contributed to a variety of problems, including increased algal blooms, erosion and the failure of valuable habitat for loons and other significant wildlife.
He called on DEP to set the appropriate water level at 12 inches below the top of the dam, with an allowable variation of 3 inches in either direction.
Fergusson said he represented 54 of the 108 riparian and littoral landowners along the Whitefield and Jefferson shores of Clary Lake.
He said the dam was designed to impound as much water as possible and that the curved edge at the top of the dam proved it was expected that water would overtop the dam at times.
“It’s gone over the top every spring I can remember, except this one,” Fergusson said. “There’s a hole in the dam and its clear from the way the water level has been managed that efforts have been made to keep the water level below the hole.” He said his measurements showed that the water level this summer has often been 40 inches or more below the top of the dam.
“Do you have reason to believe that my clients want to harm the lake?” Pleasant Pond Mill LLC (PPM) attorney Anthony Buxton asked in his cross-examination.
“Well, they have,” Fergusson replied. He said the harmful results of PPM and Aquafortis’ action might not have been intended.
Buxton said raising the water level could have a negative effect on Atlantic Salmon and alewife habitat downstream, between the dam and the Sheepscot River. Atlantic Salmon are listed as an endangered species, and alewives are currently under consideration for listing, under the federal Endangered Species Act.
Paul Kelly, PPM’s managing partner, presented evidence next. He said Henry Clary built the dam in accordance with Maine statute.
“In our opinion, as a business, it’s unlikely that Henry Clary would have designed the dam to overtop and hurt the buildings he constructed,” Kelley said. He said modifications, made by previous owner Chester Chase in order to generate hydro-mechanical power and electricity, made it more difficult to control the dam. Kelley said PPM intends to repair and operate the generator.
He said PPM wants to protect the structures under which the water flows, and that allowing the level to remain at the height the petitioners called for could cause flooding of the buildings and put them at risk. The mill is listed on the National Register of Historic Places.
Kelly said the upper and lower dams and the buildings that surround them could not be considered in isolation, even though they are legally separate properties.
“The lake association, in 1995 acting through Art Enos, intervened,” Kelley said. “They separated that dam from the mill in a way that was problematic.” He said that changed the way the dam is operated and “any economic purpose it could have.”
“The only way we can make sense to pay for this is to restore it to the way Henry Clary built it,” Kelley said. “It will look the way it did 100 years ago.” He invited people to visit the mill and see the restoration that has taken place so far.
He said his efforts have been hampered by the failure of the town of Whitefield to join the National Flood Insurance Program.
In cross-examination, Rubin asked Kelley to provide DEP and interested parties with a copy of an engineering report made for PPM in 2003.
Sen. Chris Johnson (D-Lincoln County), asked how long it would take for PPM to make the needed repairs to the dam.
“It’s difficult to predict,” Kelley said. He said he did not have the data needed to make such an estimate. “I have to say frankly that we have been a bit distracted since we contacted DEP.”
Rep. Deb Sanderson (R-Chelsea) asked if it was PPM’s intention to make the dam functional again and whether or not the company could achieve its goal of historical accuracy. Kelley said the plan was “to restore the original design,” but failing that, he wanted to make the repairs in a way that is “financially viable.”
Representatives of DEP and the Department of Inland Fisheries and Wildlife also gave testimony.
“Emergent wetlands provide functions difficult to perform absent of water,” Wildlife Biologist Keel Kemper said. He said the low water levels currently at the lake have impacted nesting habitat for loons, bald eagles and other species of interest to his department.
Fisheries Division Director Mike Brown described the effects fluctuating water levels have on the bass fishery in Clary Lake.
“It’s a short growing season,” Brown said. Brown also expressed concern that the boat ramp, built with public funds, continues to be accessible to the small boats for which it was designed. He said engineers have recommended a depth of approximately 2’3″ to facilitate launching and retrieving boats with trailers.
Rubin called several members of the Clary Lake Association to present evidence.
David Hodsdon used historical data and his own measurements to compile a report on the water level in spring, summer and fall between 1997 and 2007 that showed the impacts of rainfall in the shoreline, depending on the lake’s water level.
Sue McKeen described recent changes she has seen after 37 years living on Mosquito Lane at the marshy northeast corner of the lake.
She said she no longer sees snapping turtles, ospreys or duck hunters, because the habitat that supports their activities has been drained away as the level has dropped. McKeen said there is “nothing but mud and a trickle of stream where there used to be a marsh.”
Lincoln County Commissioner Sheridan Bond said the lower water level effects the town’s standing in regard to fire preparedness.
At the close of the hearing, Parent agreed to allow time for PPM to provide the 2003 engineering report. She gave all parties seven days, after receipt of the hearing transcript, to submit their closing arguments.
Callahan said a digital copy of the transcript would probably be available within two weeks. She said after a DEP review of the transcript and evidence she would submit recommendations to Parent. Callahan said it was difficult to predict how long that would take.
