Lawyer: Farmer hopeful of keeping homemade trout pond

Richard Lary looks out over his trout pond Monday afternoon in Clinton. Lary, a dairy farmer has been told that he must remove the pond that he recently built on his property because it was built near a wetland and is flooding a nearby neighbors road. Lary has been threatened with fines up to $7,000 and $500 a day until the property is fixed from the Maine Department of Environment Protection.
Brian Feulner | BDN
Richard Lary looks out over his trout pond Monday afternoon in Clinton. Lary, a dairy farmer has been told that he must remove the pond that he recently built on his property because it was built near a wetland and is flooding a nearby neighbors road. Lary has been threatened with fines up to $7,000 and $500 a day until the property is fixed from the Maine Department of Environment Protection. Buy Photo
By Alex Barber, BDN Staff
Posted May 16, 2013, at 7 p.m.

WATERVILLE, Maine — The attorney for a Clinton man accused of creating an illegal trout pond said he believes his client and the state can avoid a trial.

Richard Lary, 68, was in Waterville District Court on Thursday for his initial appearance regarding a land use citation and complaint from the Maine Department of Environmental Protection stemming from a trout pond he constructed on his property on Hinckley Road in Clinton.

Attorney Anthony Shusta II of Madison, who is representing Lary, told Judge Valerie Stanfill on Thursday afternoon that his client denies the charges and asked for a 90-day discovery period, which was agreed to by a representative from the DEP. Stanfill approved it.

“I’m going to request the state provide to me the report they think [shows] Richard did wrong in creating the pond,” Shusta said outside the courtroom.

Shusta said Lary hired Ken Stratton to look at the state’s findings. Stratton has served as Maine’s state soil scientist, director of Maine’s Land Use Regulation Commission, director of the Maine Forest Service and state soil/site evaluator.

“[He’ll] look at it because he thinks there’s no violation or it could be permitted now afterwards,” said Shusta. “And the state does not dispute that [there could be a permit issued after the fact]. Once we get that information, we’ll review it with Ken and we’ll get back to the state and hopefully we’ll work it out.”

After the 90-day window, the two sides will meet for a status conference. If there is no resolution, the matter would proceed to trial, said Shusta.

However, Shusta said he’s confident a resolution will be reached.

“The goal is to resolve it so the pond stays there and we don’t have a trial,” said Shusta. “And the state’s happy because we’ve done the right things and Richard is happy because he gets to keep this beautiful pond.”

In 2010, Lary built 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.

Lary admits that he dug out 10 or 15 feet of blue clay and moved it to the downstream side, creating a half-moon 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 — for which he did receive a Maine Department of Inland Fisheries and Wildlife permit — and stocked his pond. However, he believes blue herons ate most of the fish.

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.

A neighbor complained about water flooding her property and asked Lary to lower the water level behind the dam he created, but was rebuffed. The neighbor contacted 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.

Lary said in April that 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.”

Shusta said on Thursday that he was confident the pond could stay.

“I think in the end, they’ll be able to keep the pond and be able to comply with the DEP regulations,” said Shusta.

BDN outdoors editor John Holyoke contributed to this report.

http://bangordailynews.com/2013/05/16/news/mid-maine/judge-grants-creator-of-clinton-trout-pond-90-days-to-resolve-dispute-with-dep/ printed on September 18, 2014