The other day I emailed our Membership to remind them of the upcoming hearing on the Aquafortis Associates LLC appeal of the WLO Transfer, scheduled for 10:30 AM on Friday, January 10th. The hearing will be held at the Kennebec County Superior Court, 1 Court St Suite 101, Augusta, ME 04330 (map). I wanted to get notice out soon enough so those who would like to attend have time to make arrangements. If you’re not familiar with this proceeding and it’s history, I’ve posted about it a few times on the CLA website, most recently back in the middle of December. Here’s a link to that post, for more information: Continue reading
I have archived the July 2019 Water Level Chart (at left). The most notable thing about this chart is it shows rainfall fell off a cliff in July with only 2.39 inches being recorded for the month, over an inch less than the average of 3.54 inches for July. The latter part of the month has been driest: we’ve only received 0.16 inches of rain since July 13th. That said, due to the above-average rainfall received in April, May, and June, we’re still 0.65 inches above the yearly average for this date. While we’re not in official drought territory yet, we will be soon if this dearth of rainfall continues.
The lake level has fallen since the first of the month, starting out 0.13 feet above the HWM and ending the month 0.32 feet below the HWM, a total range of only 0.45 feet. Still, despite the lack of rain, the lake level is higher now than it historically would be on this date; water was still flowing over the top of the dam until just a few days ago. We’ve only been able to maintain this high water level because of the dam repairs we made late last fall which has reduced leaks to a just a few cubic feet per second, which conveniently supplies the minimum flows (1.9 cfs) for this time of year. We anticipate the lake level will continue to fall an additional 6-8 inches through the month of August, depending on rainfall. Continue reading
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.
Aquafortis Associates LLC (AQF) has retained attorney Dennis Carrillo to represent them in their appeal of the DEP License Transfer Order (see 04 May 2019: BEP Hearing on AQF Appeal of Transfer Order Scheduled). At Carrillo’s request, Board of Environmental Protection Chairman Mark Draper has agreed to continue the hearing originally scheduled for this coming Thursday May 16th to Thursday June 6th at 9:00 AM at the Augusta Civic Center.
You may recall that attorney Carrillo represented Richard Smith and AQF in both the Paul Kelley Bankruptcy Proceeding and the Rubin/Ayer lawsuit. However, given that is a non-testimonial proceeding and that the record is closed (i.e., there will be no witnesses, no testimony, and no new evidence entered) one wonders what Smith is hoping to accomplish by retaining counsel to represent him in this proceeding.
For what it’s worth, here’s the letter sent by attorney Carrillo to the BEP:
You may recall that back in December the DEP issued an Order transferring the Clary Lake water level order to the Clary Lake Association (see 11 December 2018: Clary Lake Water Level Order Transfer Complete). You may also remember that Richard Smith, owner of Aquafortis Associates LLC (AQF) subsequently appealed the Transfer Order to the Board of Environmental Protection (see 26 December 2018: Aquafortis Appeals CLA License Transfer). Today I received 2 heavy manila envelopes in the mail, one addressed to me and one to President Malcolm Burson, each containing 98 pages of documents pertaining to Aquafortis’s appeal. A hearing on the appeal has been scheduled for Thursday May 16, 2019 beginning at 9:00 AM. The meeting is going to be at the Augusta Civic Center at 76 Community Drive in Augusta. Continue reading
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
Now that the lake level staff gauge installation has been approved by DEP, the remaining requirement of the Clary Lake Water Level Order already under way but yet to be completed is a Water Level Management Plan [WLMP], defined in Special Condition #5 of the WLO. The Board has been working on it off and on for most of the winter and it is now in the final review stage. We’ll make it available as soon as it is finished and has been approved by the DEP. Copies will also be posted at the Whitefield and Jefferson Town Offices.
One of the requirements of the WLMP is that we develop a procedure for alerting people 1) of possible flooding events and 2) repair or maintenance procedures on the dam that are expected to appreciably affect lake levels. We propose to 1) post notices on this website and on Facebook and 2) send email notices to those people for whom we have email addresses and by postcard to those people without email. We’re in the process of setting up this notification system now and will start testing it in the near future. I’ll soon be adding a page on this site to keep track of water level related events and notices sent. Continue reading
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
Back on December 26th I posted about Aquafortis Associates LLC appealing the recent DEP Order #L-22585-36-F-T transferring the Clary Lake Water Level Order to the Clary Lake Association. CLA President Malcolm Burson has in turn responded to the appeal with a short, succinct 1 page letter:
Ho hum. That is all.
In a move that should surprise no one, Richard Smith of Aquafortis Associates LLC [AQF] has formally appealed the Department of Environmental Protection’s decision to approve our application to transfer the Clary Lake Water Level Order to our organization. The appeal of the December 6th Department Order #L-22585-36-F-T was filed “in a timely manner” with the Board of Environmental Protection [BEP] on December 11th, the same day I posted that our license transfer application had been approved. This appeal can only be viewed as ongoing harassment of the Association by Paul Kelley and Richard Smith and a continued attack on Clary Lake, and the Clary Lake Water Level Order. One wonders what they can possibly hope to accomplish with this appeal save wasting our time and that of the DEP and the BEP? It appears the following email I received from DEP on December 13th is in fact the formal appeal: Continue reading