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1/8/2014 2:00:00 PM
Dam Owner Cries Foul With Comment Process

After the Maine Department of Environmental Protection recently released a draft order for a water level to be set on Clary Lake, the company that owns the dam impounding the lake is crying foul with the process.

Members of the Clark Lake Association and others filed a petition with the DEP in January 2012 for a water level to be set on the lake, claiming the lake had been "deliberately drawn down to levels nobody around here has seen in over 50 years."

Paul Kelley, the manager of dam-owner Pleasant Pond Mill LLC, wrote in comments for the company that PPM was denied "a reasonable opportunity" to comment on the draft order due to the timing of the draft order's release shortly before Christmas and intervening weather events.

Kelley submitted a motion Dec. 26, 2013 for the comment period to be extended at least 30 days from the Dec. 30 deadline because of such concerns.

The DEP denied Kelley's motion, but did extend the comment period until Jan. 6.

In his comments, Kelley points to requirements such as having a survey determine the normal high waterline of the lake and the required installation of a lake level gauge as first being suggested in the order.

After the "historical normal high waterline" of the lake is determined by a professional surveyor, PPM would be required to keep the water level within a range of two feet below the historical high waterline "to the extent practicable," according to the draft order.

In the "very expedited schedule demanded by the hearing officer," PPM had only in the week of Jan. 6 been able to contact experts who can inform the company what such requirements would mean because of the experts' own holiday vacations, Kelley wrote.

"A reasonable 'process' would have provided a period of perhaps months for PPM to determine whether and how it could accomplish what the draft order would require, assuming its legality," he wrote.

Kelley went on in the letter to accuse Hearing Officer Heather Parent "of distorting or conveniently quoting Maine law as it applies to dams and the bodies of water that they create."

Kelley alleged the omission of a sentence in the draft order of a definition in the Natural Resources Protection Act, which reads, "all land below the normal high waterline shall be considered the bottom of the great pond for the purposes of this article" is an attempt to convert all lands flooded by the dam to state ownership.

He wrote that Parent arbitrarily picks facts from a conflicting record rather than demonstrating why they are the best facts available, such as using a 150.6-foot elevation for the normal high waterline as the baseline for the order because it is "the most currently known and surveyed elevation."

Kelley asserted the 150.6-foot elevation of the dam was not the result of "license, professional, unbiased survey" but an "amateur measurement" by George Fergusson, the spokesman for the petitioners, that varies "dramatically" from the U.S. Geological Survey's elevation of 153.6 feet and the Federal Emergency Management Agency's flood elevation of 154 feet.

"The draft final order appears to place PPM unlawfully in between the rock and the whirlpool," Kelley concluded his letter.

Aside from Kelley's letter, the other comments submitted showed support for the draft order, including a one-line email of support from the U.S. Fish and Wildlife Service.

Clary Lake Association President Ellis Percy wrote on behalf of the association, "We heartily approve of the draft water level order as presented; it has been received with extreme enthusiasm and abundant hope."

Fergusson, a CLA board member in addition to his role as petition spokesman, also responded in support of the draft order, writing that it exceeded expectations in its level of detail and the extent of preservation of the lake.

Among his comments, Fergusson said he has no doubt the historical normal high water mark will be determined to be at or even slightly higher than the top of the dam itself.

"This may sound counter-intuitive until you consider that runoff from rain and snow melt often enters Clary Lake at rate much faster than it can flow downstream the 1.5 miles to the dam, with the result being that water 'piles up' in the lake and it can take a while - several days or more - for the water level at the lake to fall to the elevation at the dam," he wrote.

Fergusson also supported a permanently mounted lake level gauge required by the order, but argued that such a gauge should be easily visible to someone on the side of the road or in a car, since a gauge mounted on the upstream side of the dam would only be visible from someone actually on the dam if the water level was below the top of the dam.

In his letter, Fergusson urged for more frequent measurements than would be required in the draft order: daily measurements would be required during periods of rapid water level rise and monthly during other times.

"I have been measuring water levels almost daily for over two years and would consider a water level record with month-long gaps in it to be insufficiently detailed to be of real use," Fergusson wrote. "Ideally, we should be able to look at the record and be able to tell with a reasonable degree of accuracy and certainty what the water level at the dam was at any given time.

He also included the possibility of the CLA sharing responsibility for recording the water level on a more regular basis.

"Thank you again for this draft water level order, and for the opportunity to comment on it," Fergusson concluded. "I look forward to it being formally issued at your earliest opportunity."

With the comment period now closed, "the Department [of Environmental Protection] will review and consider all comments, consult with the Office of Attorney General (if necessary) and then prepare a final order," according to a Dec. 23 email from Beth Callahan, a project manager for the DEP. "All comments will be incorporated into the administrative record."

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