15 September 2015: Two Maine lawmakers say DEP has failed to protect Clary Lake

Paul Kelley standing in front of the Clary Lake dam. Photograph by George Fergusson, 8 August 2007

Paul Kelley standing in front of the Clary Lake dam. Photograph by George Fergusson, 8 August 2007

There is an article in today’s Central Maine Papers (Kennebec Journal, Morning Sentinel) by staff writer Paul Koenig about the letter written by Representative Sanderson and Senator Johnson last week (see: Representative Sanderson, Senator Johnson send letter to DEP). The article suggests the DEP has failed to protect Clary Lake by not taking enforcement action on the water level order issued by the Department over a year and a half ago, in late January 2014. The article acknowledges why DEP has not taken enforcement action, but that their failure to do anything nonetheless is “clearly in violation” of their legislative mandate to protect and prevent diminution of the state’s natural environment. Because the Water Level Order (WLO) is under appeal in Superior Court, if the DEP were to attempt traditional enforcement action, lawyers for the dam owner would likely request a stay of the Order from the court, and they would probably get one, because that’s how these things roll. However, the article points out that in light of the severe ongoing impact low water is having on Clary Lake shore owners and the sensitive lake environment, they are entitled to equitable relief in the form of a high water level while the court case plays out. Equitable relief as I understand it is a judgment that the Court would issue in lieu of the Department taking actual enforcement action. Actions by the DEP such as entering the property to physically implement the terms of the order are provided for in the statute.

The article quotes Paul Kelley, owner of the company that owns the Clary Lake dam as saying that one of the reasons why he can’t raise the water level of Clary Lake is because doing so “would expose Pleasant Pond Mill LLC to potential lawsuits from upstream and the owner of the mill property below the dam.” I’ve always dismissed Kelley’s concerns over being sued by Aquafortis Associates LLC because, really, who believe his partner, Richard Smith, is going to sue him for high water damage?

Now, thanks to information made public in today’s article, we can also dismiss the potential lawsuit from upstream as well. We’ve all known the source of that threat as none other than Clary Lake shore owner Butch Duncan. Butch has made no secret of his preference for a lower water level and he has said he would sue any dam owner who raised the water level, including the Clary Lake Association. He has recently shared his reasons why he would file suit with me privately and for that reason I have not “gone public” with them. However, now that they have been printed in the paper I feel I can finally address them here. As stated in this latest article, the basis of Butch Duncan’s “potential lawsuit” against the Clary Lake dam owner is because he believes that a high water level will kill the oak trees on his land adjoining the great meadow.

Now, I like Butch Duncan, I consider him a friend, and I respect his opinions but at the risk of hurting that friendship, I have to take exception to his opinion on this matter. There are admittedly many large and beautiful oak trees on what has been traditionally referred to in the deeds in the area as “Pleasant Point” on the east side of Clark’s Meadow Brook, which property is owned by Mr. Duncan. However, one has to wonder, if high water will kill his trees, how did they get so big in the first place? When I asked him that question, he told me that it was because the water level has fluctuated throughout the year, that it wasn’t high all the time. Apparently Mr. Duncan doesn’t realize that the water level regime described in the Clary Lake water level order is intended to mimic the natural rise and fall of the typical Maine lake throughout the year. According to the Order, the lake level would be maintained at the normal historical high water mark of Clary Lake (at or very near the top of the dam) from ice out in the spring until the end of July. After that the lake level would be gradually dropped to 2′ below the top of the dam and kept there through the fall and into winter. As everyone knows, this is pretty much describes the historical water level regime of Clary Lake for the last 100 years. Given this information, I believe Butch Duncan’s fears for his trees are groundless. Butch would have to have some dead trees to show for it and be able to prove they were killed because of a high lake level and not for some other reason before he could file his suit. I just don’t see that happening.

Surely, Mr. Kelley will be relieved to know that his fears of being sued by Mr. Duncan are unfounded.

The article also repeats something Mr. Kelley has said numerous times, that it is “impossible to obtain flood insurance coverage for the dam because Whitefield is one of the few Maine municipalities that have not joined the federal flood insurance program.” I’ve never understood this. Why would someone think they could buy flood insurance for a dam in first place? Isn’t that like trying to buy flood insurance for a boat?

This is incidentally the last article on Clary Lake that Paul Koenig will be writing as tomorrow is his last day with Central Maine papers. I’d like to take this opportunity to thank Paul for his efforts over the past 4 years keeping the Clary Lake matter in the news and in the public eye, and for his thorough, impartial, and accurate reporting. I also wish him success in his next writing venture. It is not clear who from Central Maine papers will be reporting on Clary Lake now that Paul is leaving.