June 21, 2018
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A sad fish tale: Clinton farmer faces hardship as state levies fine for his homemade trout pond

By John Holyoke, BDN Staff

CLINTON, Maine — Richard Lary says he always wanted a trout pond on his Clinton farm. Maybe he’d catch a few for dinner some evenings. Perhaps he’d invite friends over to fish. And whether those trout were biting or not, he figured his farm insurance rate would decrease after he built the pond and installed a fire hydrant at his own personal reservoir.

Lary, 68, eventually built that pond by damming what he says is a temporary stream that exists only during periods of high water. In doing so, he also created two earthen berms that he could drive across, opening access to his back lot and some trees he’d wanted to cut.

But all is not perfect on the shores of Lary’s quarter-acre pond.

The farmer has also aggravated a neighbor and caught the attention of the Maine Department of Environmental Protection. The neighbor is frustrated that the dam that Lary built causes water to back up and cover a farm road that allows access to wooded land beyond a pasture.

The DEP says Lary filled a wetland, altered a stream and discharged soil into water — all against the law — and the agency wants the pond removed and Lary to face monetary penalties.

And the trout? Well, that didn’t work out so well for Lary either: He stocked 88 fish a year ago. Blue herons ate, he estimates, 87 of them. The farmer himself found and ate just one, after the presumably sated herons left it on shore, with beak holes in its head.

Now Lary is vowing to fight the DEP, which has filed a complaint against him in Waterville District Court. At stake, for him: The pond, the money from his Social Security account that he spent to build it and potential state penalties and fines that could add up to thousands of dollars.

Lary said he has been informed that the state is seeking a $7,000 fine and $500 a day in penalties for each day that he’s not in compliance with the DEP’s standards.

“If I knew this pond was gonna cause me so much trouble, I never would have built the damned thing,” Lary said on Monday, shaking his head.

Stream becomes a pond

Lary bought what is now called Windy Acres 35 years ago, he says, and has worked the dairy farm ever since. At its peak, Lary had 160 cows. Now, he’s down to 80, and struggling to get by.

“I sold off half of ’em to stay in business,” Lary said, admitting that he also has sold several pieces of farm equipment to make ends meet. And money woes are nothing new for the career farmer: Back in 1992, he’ll tell you, he was gored by a bull. After several months of recovery, he had accumulated $180,000 in hospital bills.

During his years of farming he has fallen off a barn roof, lost a tooth and been knocked unconscious while felling a tree and been washed downstream while trying to clear a beaver-created blockage out of a culvert.

“It ain’t been a breezy life,” Lary said with a chuckle.

In 2010, Lary made a decision that would eventually draw the attention of the Maine DEP: He decided to build a trout pond out of a meandering brook that he calls an “interim stream,” meaning that during dry months, it peters out in the Maine woods, leading nowhere.

The pond is about 400 yards from his barn, which sits on Hinckley Road. The land from the barn to the pond is all pastureland. Beyond the pond are woods.

“I [wanted] to get to my back woods lot, and … I was going to put a fire hydrant in there for farm insurance [relief],” he said. “Then I got thinking about it. I thought, ‘Heck, if I’m going to put a dam in here, I might as well have a trout pond at the same time.”

Lary admits that he dug out 10 or 15 feet of blue clay, moved it to the downstream side, creating a half-moon size bowl that covers about a quarter of an acre. On one side, water flows over crushed rock and rejoins the downstream flow after curving around the earthen dam.

Last year, Lary bought 88 brook and rainbow trout from the state — which he did receive a Maine Department of Inland Fisheries and Wildlife permit for — and stocked his pond.

Lary said he spent about $7,000 to create the pond, which he took from his Social Security earnings. Saving to begin the project took him about 10 months, he said.

The state takes notice

Lary had already learned that his engineering work wasn’t appreciated by everyone. In particular, neighbor Meredith Trask of Clinton, who was acting on behalf of her mother, the landowner, took issue with the water that was held back by Lary’s new dam.

“[The water] does flood back on her, but it does that every year when it rains,” Lary said.

Trask, who said she didn’t think she had much to gain by talking with the Bangor Daily News, said water covered a woods road on her mother’s property, a claim that Lary does not dispute. She said she approached Lary and asked him to lower the level water held behind the dam, but was rebuffed by the farmer.

“It is damaging our vegetation,” Trask said. “If Richard Lary had had more concern about what he was doing in the first place, we wouldn’t be here.”

Concerned, Trask reported the pond and dam to the DEP. The DEP subsequently visited Lary’s land, investigated the situation, and filed a complaint against him alleging that the farmer has failed to comply with Maine’s Natural Resources Protection Act.

Lary said he never checked with the DEP, but did talk with other state and local agencies. He said he was led to believe that damming a “no-name” stream that dries up in the summer wouldn’t be a problem.

According to the DEP complaint, department staff first checked Lary’s property in November of 2011. Staffers have subsequently returned to the property to see if Lary had removed the dam. He hasn’t.

“We have been unable to negotiate an administrative settlement and actually filed a court case in District Court that was dated April 23,” Michael Mullen of the DEP’s Bureau of Land and Water Quality, said Monday. “Basically the department is asserting that there was wetland fill and stream alteration and failure to take erosion controls that led to discharge of soil to water.”

Lary’s court date is May 16. He is represented by attorney Anthony Shusta of Madison.

Mullen explained that a permit would be required in order for Lary to do the kind of work that resulted in the pond’s formation.

“The pond was never permitted by us,” Mullen said. “The pond and the stream [work] is something that does require a permit [under] the Natural Resources Protection Act.”

Mullen also said that allowing the creation a pond by damming an existing stream is something the DEP is leery of.

“Obviously, we try to keep our streams flowing freely and it’s a very hard permit to obtain, to actually dam a stream,” Mullen said.

Lary said the pond that he created actually serves to stop silt from flowing downstream — it settles in the pond — and said that runoff from farm fields, which often contain manure that has been spread, would otherwise end up in the stream. And the farmer maintains that if he is forced to remove the pond, doing so would actually increase the amount of silt that flows into the stream.

According to the DEP complaint, the portion of the Lary property where the pond now sits is part of a freshwater wetland, and are considered protected natural resources.

“[The state says] everything I done was wrong. I shouldn’t have built a berm. I shouldn’t have dug down into the ground. I disturbed trees,” Lary said. “But I didn’t intend to do any harm. I just didn’t intend to do it.”

Lary said removing the pond would create another financial hardship that he’ll struggle to withstand.

“If I tear it out it’s going to cost me $7,000 to tear it out, plus the $7,000 fine, plus $500 per day, plus the $7,000 it took me to build it,” Lary said. “It’s going to be pretty near 30 grand by the time it’s all done. A pretty expensive trout pond. And I didn’t expect it to be that way.”

Lary said he hopes he’ll win in court against the DEP, but that he realizes it could go either way. And whatever happens, he says he’ll wind up with a trout pond in the end.

“If they make me take this one out I’ll just step up here in the field [away from the stream] and build another one, pump the water from the stream into that,” Lary said. “I’ll have to put in an aeration system. But I’m going to have a trout pond. I’m allowed to have a trout pond. I just didn’t realize this was going to be so much trouble.”

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