Friday, December 13, 2013
Property owners on Clary Lake hope a water level management plan from the state will solve their low-water woes, but the dam owner is arguing that an order isn’t possible or enforceable.
The two parties submitted their closing statements for the state Department of Environmental Protection water level petition on Monday.
Property owners on the 667-acre lake in Jefferson and Whitefield petitioned the department at the beginning of last year to order a water level management plan for the owners of Clary Lake dam because of complaints of a low water level.
The low level has limited access to the lake and eliminated over 42 acres of wetland, according to property owners and state departments.
The manager of the company that owns that dam, however, raised questions in his 44-page final brief as to whether DEP has jurisdiction to issue a water level order for Clary Lake dam or enforce an order.
Paul Kelley, manager of Pleasant Pond Mill LLC, also suggested the department should dismiss the permit.
Mark Bergeron, director of the DEP’s Division of Land Resource Regulation, said the department has jurisdiction to issue an order, as well as the ability to enforce it.
Bergeron said the DEP doesn’t have a timeline of when the commissioner will issue the order.
The department’s order can be appealed to the Board of Environmental Protection.
George Fergusson, spokesman for the petitioners and a lakefront property owner in Whitefield, wrote in his final comments that the petitioners believe a water level one foot below the crest of the dam would be appropriate.
But Kelley said the foot-wide hole in the dam caused by tropical storm Irene in August 2011 prevents the dam from holding a higher water level.
He said the company has tried to keep the water below the hole.
An order to maintain the water above the hole, which he said is 36 inches below the crest, would be impossible to follow, Kelley said.
Besides a water level, the department’s order can contain restrictions on the amount of water flowing out of the lake, said Bergeron.
The department’s order, which is a summary of its findings, could also not have final water level or flow restrictions, Bergeron said.
The DEP accepted the petition signed by over 50 lakefront property owners in January 2012 and held a public hearing in August of the same year.
Both sides have admitted that disputes over the water level have gone on for decades before Pleasant Pond Mill LLC acquired the property in 2006, but Fergusson has said the situation worsened under the new ownership, particularly since the fall of 2011.
“I don't know when to expect them to come out with an order, but I'd like to think it would be sooner rather than later,” Fergusson said.
Kelley doesn’t think an order would solve the issue of the low water level, and he said he doesn’t expect it will end the process.
“It’s gonna involve more lawyers, I’m sure. It’s going to involve more processes,” he said. “I don’t see how a water level order is going to get (the petitioners) to the place (they) want to be.”
His company filed a petition in April with the DEP to release ownership of the dam.
The DEP sent a letter saying that the petition will be rejected because not all the landowners were properly notified. Kelley has said he’ll continue with the process and submit a report that’s due in September.
One of Kelley’s objections in his final brief — and an objection that he raised previously — is that the department already gave permission in September 2011 for his company to lower the lake water below the hole to prepare for dam repairs.
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