The Department of Environmental Protection has issued an order setting the water level for Clary Lake in Whitefield and Jefferson, but the two-year-long battle over the order may not have served to calm the troubled waters.
The water level order process began in January 2012 when members of the Clary Lake Association and others filed a petition with the department claiming the lake had been “deliberately drawn down to levels nobody around here has seen in over 50 years” and subsequently impacted property values, recreational use of the lake, and wildlife.
Paul Kelley, manager of Pleasant Pond Mill LLC, the company that owns the dam which impounds the 667-acre Clary Lake, maintains his company received a “permit by rule” from the department in 2011 authorizing “the de-watering of the impoundment” so the company could make repairs to damage to the dam caused by Hurricane Irene.
“They [the department] lost it, or they hid it, and the Board [of Environmental Protection] or a judge is going to have to figure out what the effect of an existing permit by rule is on a petition,” Kelley said in an interview Jan. 28.
The water level order, issued Jan. 27, orders Pleasant Pond Mill to repair the dam; have a licensed land surveyor determine the “normal high water line” of the lake; create a water level management plan for operating the dam; and maintain certain water levels and minimum flows during different time periods each year.
Kelley said his company has a number of issues with the water level order resulting from the petition process, including their position that the department has no authority to require repairs to the dam, concerns over which statutes actually apply to the Clary Lake dam, and the inclusion of information in the order that was not presented in the official hearing process.
Because it was so soon after the 17-page order was issued, Kelley said the company had not yet decided on a course of action.
“We’re currently reviewing the order and all the options available to us,” he said.
Under the water level petition process, state statute provides an opportunity for appeal to the Board of Environmental Protection.
George Fergusson, the spokesperson for the petitioners and a board member of the Clary Lake Association, was pleased with the final water level order.
“It is a victory. We have won this battle and as far as I am concerned, Paul Kelley has been defeated,” Fergusson said Jan. 28. “He dragged it out for a long time.”
However, Fergusson does not believe Kelley or Pleasant Pond Mill will take the order lying down.
“He’s going to fight this with every ounce of energy, he’s not going to roll over. … there’s no rational reason for him to fight, but he’s going to,” Fergusson said.
In the meantime, the clock is ticking for Pleasant Pond Mill to comply with the order, which will come into effect when repairs have been made to bring the dam into an operational state or Oct. 1, whichever comes first.
Other processes, statutory and otherwise, continue to go on in the meantime.
Kelley’s company has two petitions for release from ownership from the dam in the works, which could result in the department issuing a breach order for the dam if a new owner is not found.
Both Whitefield and Jefferson have twice voted against taking ownership of the dam in response to the petitions, and Pleasant Pond Mill and the Clary Lake Association have not seen eye to eye regarding the association’s efforts to buy out the dam.
The two parties were set to move forward with discussions after a meeting in October, but negotiations never got off the ground after disagreements arose over a non-disclosure agreement.
Fergusson said the association is still trying to court Pleasant Pond Mill.
“The Clary Lake Association has already begun to actively pursue activities around taking ownership with the dam and complying with the water level order. We don’t own the dam so there’s nothing we can do, but we can start to act like the dam owners we want to become. We will end up owning this dam; we’re the only ones who want to own it,” Fergusson said.
“I think the sooner he gets rid of the dam and gives it to the association, the better things are going to be,” he said.
Kelley said there are still issues with how negotiations between the two parties can move forward.
“The Clary Lake Association has refused to participate in standard business discussions between a potential seller and a potential purchaser, and went so far as to dismiss the offer of mediation of a Whitefield selectboard member because they continue to rely entirely on the advice of a non-lawyer, non-licensed individual,” he said.
Concerns over legality and which party holds title to what property and/or rights related to the dam, the water, and the land previously submerged by the lake are also playing a role, Kelley said.
“If it was clear what my company owned and who was likely to sue my company if we sold something that we don’t own, then I would be more inclined to have discussions with the lake association with their interest, their purported interest, in the property,” he said.
Even if the lake association does not end up with the dam, Fergusson said the group is willing to help Pleasant Pond Mill.
“The Clary Lake Association is going to go publicly on the record as ready, willing and able to do anything they can, anything possible to assist the dam owner to comply with the water level order,” he said.
