A number of people have asked me for to explain the DRAFT Clary Lake water level order that was issued the other day. It is a very detailed and complex document with many subtle (and some not-so-subtle) elements and there is certainly a lot to ponder. I have reviewed it at length and will state for the record that I think the water level order is FANTASTIC. It is essentially what we asked for, and it was worth waiting for. I have begun preparing comments on behalf of the Petitioners to submit to the Department and which are due on or before December 30th, so I’m not going to go into a lot of detail now. I will however go over the highlights. I encourage everyone to read the actual ORDER and if you have any questions or comments, please send them to me.
The first 11 pages of the draft order constitute a Findings of Fact and a review of the evidence that the Department considered in making their decision. It is totally worth reading, especially C. “TITLE, RIGHT, OR INTEREST” on page 6 of 16. The WATER LEVEL ORDER proper starts on page 11. The major elements of the order are as follows:
1) The water level regime described in the ORDER closely conforms to that recommended by the Maine Inland Fisheries & Wildlife in their Agency Comments and as described during their testimony at the Public Hearing back in August 2012. This does not come as a surprise to me as I was told early on that in matters such as this the Department gives a LOT of credence to the recommendations of the IF&W. The order calls for a maximum annual fluctuation of 2.0 feet below the normal high water line. The order also requires that the lake level be raised at ice-out in the spring to the elevation corresponding to the normal high water line and held there until August 1st. From August 2nd until ice-out the lake can be maintained at a lower level not to exceed 2.0 feet below the normal high water line to prevent ice damage to the dam and shoreline. The order also requires the dam owner to hire a professional land surveyor to establish the “historical normal high water line” and to locate that elevation on the face of the dam. The results of the survey are to be submitted to the Department no later than May 1st, 2014. I would be very surprised if this “historical normal high water line” were not coincident with the top of the dam.
2) The ORDER goes into considerable detail in specifying a minimum flow regime for the Clary Lake dam. Minimum flows refer to the amount of water that must be released from Clary Lake to maintain and sustain the aquatic fauna in the stream below the dam.The flows vary with the season with the most water (35.9 cubic feet per second) being released between March 16th and May 15th and the least amount of water (1.9 cubic feet per second) being released between July 1st and September 15th. I think measuring and verifying these flows is going to be a real challenge.
Without a doubt, the minimum flows requirement is THE MOST misunderstood element of the water level order;
3) The ORDER specifies that a Water Level Management Plan be prepared by the dam owner and submitted to the Department for approval no later than May 1, 2014. The Plan is quite detailed and includes provisions for periodic repair and maintenance, designation of a responsible party and an alternate in case of emergency, procedures for monitoring and maintaining the required minimum flows, etc;
4) A permanently mounted lake level gauge installed by the dam owner at the dam no later than August 15, 2014, said gauge to be inspected by a suitable authority;
5) The dam owner has until October 1, 2014 to effect repairs to the dam and bring the lake level into compliance with the order which, given the time of year, I would take to mean a water level corresponding to no more than 2.0 feet below the normal high water line. I was initially discouraged by this schedule but now realize there is a lot that has to take place between now and then. The dam owner will be busy.
6) Restrictions are placed upon the dam owner regarding the transfer of the dam without submitting written notification to the Department for review and approval.
Given that the Department has allowed us only 11 days to submit comments and also considering the deadlines they’ve set suggests to me that they are going to move forward quickly and issue the order very soon.