On Thursday July 9, 2020 Aquafortis Associates, LLC [AQF] filed their reply brief in the matter of AQF v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-4, it being an appeal of a Department of Environmental Protection [DEP] Order issued in December 2018 transferring the Clary Lake Water Level Order to the Clary Lake Association. AQF filed their initial brief on May 29th of this year; their reply brief is a combined reply to both the BEP’s brief filed on June 19th and the Clary Lake Association’s brief filed on June 25th. This latest document includes 52 pages but there are a number of attachments; the actual reply brief itself is actually only 16 pages long:
Now that AQF’s petition has been fully briefed, the next step is up to the Court. The judge may schedule a hearing for oral arguments or he may just issue a ruling. I have no idea what to expect or when to expect it. I’m going to refrain from further comment at this time.
Last spring when the water level reached the top of the Clary Lake dam we discovered a few leaks that were missed during major repairs last fall. There were three gaps between stones near the south end of the dam by the red building, obscured by vegetation, and one small hole at the north end of the dam. At the time we just used sandbags to staunch the flow and made plans to repair the leaks properly this fall when the lake level was down.
We began the fall draw down back in mid-September and as of today the lake was 1 foot below the HWM, plenty low enough to allow us to make the repairs. Two bags of high strength Quickrete mortar mix and an hour and a half and we were done. Many thanks to Dam Operations Committee members Dave Knight and Steve Cowles for helping out with this project! Here are a few pictures from this morning’s work:
In a move that defies understanding, Aquafortis Associates LLC (AQF) has decided to appeal the June 6th Board of Environmental Protection (BEP) ruling denying their appeal of the DEP transfer of the Water Level Order to the Clary Lake Association (see “06 June 2019: BEP Denies AQF Appeal“). This new Petition for Review of Final Agency Action, Docket No. AP-2019-TBA, was filed today in Kennebec County Superior Court by counsel for AQF Dennis Carrillo. Mr. Carrillo has represented Richard Smith and AQF in both the Paul Kelley Bankruptcy proceeding and the Rubin/Ayer lawsuit. The petition names the Board of Environmental Protection as the Defendant and they will be doing the heavy lifting in this court case. The Clary Lake Association has been named a Party-In-Interest. I am not going to comment further until I’ve had a chance to read the Petition carefully. Without further palaver:
In a decision that should come as a surprise to no one, the Board of Environmental Protection after listening to comments from Aquafortis Associates LLC [AQF] and others, summarily denied AQF’s appeal of the December 2018 DEP Order transferring the Clary Lake Water Level Order to the Clary Lake Association. The Board also denied several parties requests for a public hearing. So the DEP Transfer Order stands.
The information-gathering portion of the hearing lasted over 2 hours, the bulk of which was used by attorney for AQF Dennis Carrillo to explain and justify AQF’s appeal; this was a non-testimonial hearing and the record was closed which means all of AQF’s attempts to supplement the record with additional material were for naught. After AQF spoke, CLA President Malcolm Burson issued a short statement on the Association’s position- basically that we filed a satisfactory application and did everything right and in a timely fashion and that we applaud the Department’s decision to transfer the Order to us. Finally, counsel for DEP spoke briefly stating their opinion that the DEP had covered all the bases and that the CLA transfer application was deemed satisfactory and complete. The Board then asked if there were any additional comments; Butch Duncan spoke briefly about his desire for a public hearing, and Paul Kelley spoke about why the thinks the Clary Lake Association lacks sufficient Right, Title, and Interest in the Clary Lake dam to operate it, an argument that Mr. Carrillo also attempted to make. The Board however correctly observed that there is a forum for resolving title issues, and they aren’t it.
The Board deliberated for all of about 2 minutes before issuing their unanimous decision denying the appeal.
A number of CLA Board members and several Clary Lake Association members attended the hearing. I have no idea how many people if any listened in on the DEP Virtual Meeting Room, if you did I’d be interested in hearing your reactions.
We have received provisional approval of our Water Level Management Plan [WLMP] from the Maine Department of Environmental Protection. The WLMP details the procedures we’ll be following to operate the Clary Lake dam and manage the water level so as to remain in compliance with the Clary Lake Water Level Order [WLO]. The completion of a management plan was the final requirement of the WLO and it’s good to have this task behind us. This first season is like a shakedown cruise: we’ll be sitting down with DEP staff next winter to review the plan to see how well it’s met everyone’s needs. Continue reading →
I have archived the April 2019 Water Level Chart (at left). The most notable thing about this chart is that it shows the lake level rose up to the High Water Mark (HWM) on the first day of the month, for the first time since before our water level crisis started back in 2011! The lake level has been hovering right around the HWM for the entire month, spending some time above and some time below it, rising as high as 3 inches above the HWM on April 27th before dropping to end the month 1.80 inches above the HWM. A lake level slightly above the HWM is a more or less normal condition this time of year, and there has been water flowing over the top of the Clary Lake dam for the entire month. When the spring runoff ends (it’s already peaked), the lake level will drop back to a more reasonable level 4 to 6 inches below the HWM. The plan is try and keep it around that level through July and into August. Welcome to the New Normal. Continue reading →
We’ve received a lot of rain over the past week resulting in a full lake and a nice sedate outflow over the dam. Older folks will recall that this is what Spring is like on Clary Lake. There’s about 2.5″ of water going over the dam and the estimated discharge is about 70 cubic feet per second.
For 10 years I’ve waited to see water flowing over the Clary Lake dam again. It’s finally come to pass, and I’m not tired of it yet. I took this video this morning and posted it to our Facebook page. Posting it here now.
Work to come into compliance with the Clary Lake Water Level Order (WLO) continues. Special Condition #6 of the WLO requires that the dam owner install a lake level staff gauge graduated in feet and tenths of a foot located in a “publicly visible location” behind the dam. The zero foot mark on the gauge must mark the elevation of the Normal High Water Mark (HWM) which has been previously determined to be at an elevation of 151.17 feet. I had already purchased the staff gauge from Forestry Suppliers earlier this winter. It’s nicely constructed of steel with a baked-on enamel coating, easy to read graduations, and brass grommets in the screw holes. It’s attached to a piece of pressure treated 5/4 board with stainless steel screws which in turn is attached to two steel brackets bolted to the gate structure with stainless bolts. It should prove serviceable for many years. Many thanks to Colin Caissie (pictured below left) for designing and fabricating the brackets to attach the staff gauge to the gate structure, and for helping with the installation. Continue reading →