Legislators Enter Clary Lake Water Level Order Fray

Emotions were high at the Whitefield Municipal Fire Station Aug. 26 as Clary Lake waterfront owners from Whitefield and Jefferson spoke about the personal, financial, and ecological impact of the lake’s depleted water level with Rep. Deb Sanderson, R-Chelsea, and Sen. Chris Johnson, D-Somerville.

The meeting, organized by the Clary Lake Association and Sanderson, was a preliminary step to Sanderson and Johnson drafting a joint letter, with a comprehensive explanation of waterfront owners’ concerns, to urge the Department of Environmental Protection to enforce the water level order it imposed in 2014.

The DEP’s ability to enforce the water level order it imposed on Pleasant Pond Mill LLC, the deeded owner of the Clary Lake dam responsible for impounding Clary Lake, however, is in question, with manager Paul Kelley actively seeking to dissolve the company.

Mediation over the water level order, called for by Pleasant Pond Mill LLC and downstream property owner Aquafortis Associates LLC, ended in May after stretching on for over a year with no resolution. Pleasant Pond Mill LLC and Aquafortis Associates LLC’s appeal of the water level order is now set to be heard in Superior Court.

As the legal proceedings surrounding the Clary Lake dam continue, waterfront owners presented Sanderson and Johnson with a long list of problems they said they are suffering from as they watch the Clary Lake shoreline recede.

Loss of property value, inability to use the lake for recreation, loss of a water source for the Whitefield and Jefferson fire departments, loss of revenue for local businesses, loss of wildlife habitat, and inability to share cherished memories with the younger generation were just a few of the issues Sanderson and Johnson heard.

Many residents said what used to be their waterfront has become mud and weeds and those attempting to sell or rent their property are unable to.

While the market value of property on Clary Lake has markedly declined over the past four years, Whitefield’s and Jefferson’s assessed value for the land has not. According to realtor Jack Holland, four of his listed properties on Clary Lake have not sold despite deep reductions in their asking price.

Many Jefferson residents said they attempted to file tax abatements with the town due to the decreased value of their property, but those requests were denied. Many residents also complained about being forced to abide by shoreland zoning ordinances which no longer reflect the actual shoreline of Clary Lake.

The Chickawaukie Ice Boat Club, which used to frequent Clary Lake, can no longer sail on the ice due to the low water level and dangerous conditions it creates, a member said. “It’s a miracle someone hasn’t died,” a member of the SnoPackers Snowmobile Club said. The snowmobile club also no longer uses Clary Lake.

“The meeting was more about feelings than facts,” Kelley said in an interview the following day. Kelley was present at the meeting and was met with anger and frustration from the over 30 residents in attendance when he attempted to speak.

“I’m glad you’re here,” Sanderson said to Kelley. “You are an island in a sea of people with an opposing opinion.”

The meeting was organized to allow Clary Lake waterfront owners to air their grievances, Sanderson and Clary Lake Association President Malcolm Burson said.

Many property owners said lack of respect and neighborly consideration was a central cause of Clary Lake’s depleted water level. “There has always been some historic contention with the person that owned the dam, but never to this point. Before all it took was some respect,” Jefferson resident Mary Antognoni said.

“All it comes down to is closing the dam and fixing it without all these other components you’re bringing into it,” Antognoni said to Kelley.

“I’m surprised,” Kelley said. “After four years people still believe that I opened the gate and drained the lake. It was a hurricane and the DEP was well aware of it.”

The Clary Lake Association petitioned the DEP to issue a water level order in 2012 due to water levels which the petition stated had been, “deliberately drawn down to levels nobody around here has seen in 50 years.”

The DEP issued the water level order in January 2014 calling for Pleasant Pond Mill LLC to repair the dam, have a licensed surveyor determine the lake’s high water line, create a water level management plan for the dam, and maintain certain water levels and minimum flows during certain times of the year.

According to Kelley, the dam breached during Hurricane Irene in 2011 and the DEP issued a permit by rule to allow Pleasant Pond Mill to “dewater the impound,” or open the dam’s gate and lower the water level to make repairs to the dam. The DEP has since lost that paperwork, Kelley said.

According to Kelley, the dam can no longer impound water. If the gate were to close, the water would rise to the breech, causing a full collapse of the center section of the dam, which would cause the downstream property, owned by Aquafortis Associates LLC, to flood, Kelley said.

Kelley also cited a number of jurisdictional and procedural errors involved in the DEP’s water level order, which contradicts the original permit by rule Kelley said the DEP issued in 2011.

Kelley has attempted to release himself from ownership of the dam on several occasions. While Pleasant Pond Mill LLC is the deeded owner of the dam, the mortgage is held by former Clary Lake Association President Arthur Enos, a person with a vested interest in the dam that has not been acknowledged by the DEP, Kelley said.

Kelley filed a petition for release from dam ownership or water level maintenance with the DEP, which was denied in May. In previous years, Kelley approached the towns of Jefferson and Whitefield on several occasions, asking the towns to take over ownership of the Clary Lake dam.

Each time, residents voted against accepting ownership. Property taxes on the dam have not been paid since 2013. In March, Whitefield selectmen voted to waive foreclosure on the dam, ending the possibility of transferring ownership to the town by default.

According to Clary Lake Association spokesman George Fergusson, the association has twice made a proposal to purchase the dam, but both offers were denied. According to Kelley, there were no offers from the association to purchase the dam.

Jefferson resident Tim Robbins offered to work with Kelley to fix the dam during the Aug. 26 meeting. According to Kelley, in order to repair the Clary Lake dam, repair of the whole site would be required, which would include a downstream dam as well.

The anger and contention surrounding the Clary Lake water level conflict was barely contained at the Aug. 26 meeting. However, all parties to the dispute expressed a desire to resolve the issue.

“Should we flip the coin and get a lake and stop worrying about the water level order?” Kelley asked. According to Kelley, in order for the lake level to rise, there needs to be shared costs and responsibilities.

“We are extremely pleased our two legislators agreed to work with us on this,” Burson said. Sanderson agreed to organize a separate meeting with Johnson and Kelley to hear Kelley’s concerns and hopefully negotiate a resolution.