The Maine Department of Environmental Protection has taken steps to enforce the water level order it issued to Pleasant Pond Mill LLC, owner of the dam that impounds Clary Lake, almost two years ago.
On Sept. 28, a notice of violation of the water level order was sent to Pleasant Pond Mill LLC and its former manager and sole member, Paul A. Kelley, in addition to downstream property owner AquaFortis Associates LLC and its manager and sole member, Richard L. Smith.
The notice of violation highlighted five conditions of the water level order that have not been met and announced the DEP’s conclusion that monetary penalties for the five violations should be involved in the final resolution.
According to the notice, each day since Oct. 1, 2014 constitutes a violation of the order and penalties could range from $100 to $10,000 per day. The notice gave the alleged violators 15 calendar days, or until Oct. 13, to revise the maintenance and operation of the dam and undertake steps necessary to prevent the further dewatering of Clary Lake.
“Pleasant Pond Mill’s first response was shock,” Kelley said. The DEP previously said it would wait for the outcome of Pleasant Pond Mill’s and AquaFortis Associates’ appeal of the water level order, which is currently in Lincoln County Superior Court, to take enforcement action.
“This is an unexplained about-face,” Kelley said. Represented by the PretiFlaherty law firm, of Portland, Pleasant Pond Mill and AquaFortis Associates issued a response to the notice of violation and requested a stay of enforcement on Oct. 8 pending the outcome of the superior court appeal.
According to Kelley, as of Oct. 16, the request for a stay of enforcement has not been responded to, and a prescheduled meeting on Oct. 19 between the DEP and Pleasant Pond Mill was canceled.
The DEP’s notice of violation comes on the heels of the DEP receiving a joint letter from Rep.
Deb Sanderson, R-Chelsea and Sen. Chris Johnson, D-Somerville, in addition to a letter from the Whitefield Board of Selectmen, urging the DEP to enforce the water level order it issued in 2014.
Clary Lake, which should be a 670-acre lake, has shrunk to approximately 400 acres, resulting in the loss of hundreds of acres of wetland, Sanderson and Johnson wrote in their letter. Whitefield’s assessment of land value is being challenged by Clary Lake property owners, who no longer have waterfront property due to the depleted water level, Whitefield selectmen wrote in their letter.
Less than a month after receiving the letters, the DEP took steps to enforce the water level order it issued in January 2014. “It’s great news,” Clary Lake Association spokesman George Fergusson said. “This has been a long time coming and we’re grateful the DEP has taken action.”
The Clary Lake Association, an association of lakefront owners in Whitefield and Jefferson, petitioned the DEP to establish a water level order in 2012, due to the depleted water level of Clary Lake. AquaFortis Associates was named alongside Pleasant Pond Mill in the petition, however, the water level order issued in January 2014 only named Pleasant Pond Mill.
AquaFortis Associates joined Pleasant Pond Mill in appealing the water level order in Lincoln County Superior Court. After more than a year of court-ordered mediation, which ended with no resolution, the appeal will now be heard by the court.
According to Kelley, the court has not issued a timeline for when the appeal will be decided.
Due to AquaFortis Associates’ assertion of flowage rights, AquaFortis Associates and manager Richard Smith were listed as alleged violators in the DEP’s notice of violation.
“I was shocked to be listed personally in light of the fact DEP never served me personally and has yet to show what their jurisdiction is over AquaFortis Associates,” Smith said.
The notice of violation listed the companies’ alleged failure to repair or modify the dam to an operational state, provide a survey of the normal high water line, provide a complete water level management plan, install a lake level gauge on the dam, and, after ice-out conditions, to raise the level of the lake to as close as possible to its full capacity for recreational and environmental purposes.
The notice of violation gave the alleged violators 15 days to revise the maintenance and operation of the dam and begin to raise the water level and 30 days to install a gauge, submit a water level management plan, and retain a surveyor.
“The issues in the notice of violation are being appealed to superior court,” PretiFlaherty litigator Tim Connolly said. “It makes very little sense to enforce things under appeal. It’s a waste of time and taxpayer money.”
Kelley, manager of Pleasant Pond Mill, has maintained the Clary Lake dam is unable to safely impound water due to damage it sustained in 2011 as a result of Hurricane Irene. According to Kelley, in order to repair the dam, the DEP must issue Pleasant Pond Mill a Natural Resource Protection Act permit, which the DEP has refused to do.
“I’m in a classic administrative catch 22,” Kelley said. “They’re ordering me to do something, which they don’t have the authority to do, and they won’t provide me the permit necessary to carry it out.”
In response to the notice of violation, PretiFlaherty attorneys asked for a stay of enforcement due to the anticipated success of the alleged violators’ appeal of the water level order. PretiFlaherty’s response also claimed the DEP has “unclean hands,” or has acted unfairly, unethically, and inconsistently in its actions in establishing the water level order, and noted the impossibility of the timeline given in the notice.
The response also raised many of the jurisdictional issues that are the focus of the appeal to the water level order.
David Madore, DEP’s director of communications, confirmed the DEP issued a notice of violation to Pleasant Pond Mill and AquaFortis Associates, and received a response requesting a stay of enforcement. However, due to pending litigation, the DEP is unable to comment on the details surrounding it, Madore said.