January 21, 2018
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A dam broke and these Mainers can’t get their lake back unless a judge lets them

By Susan Sharon, Maine Public
Updated:
Susan Sharon | Maine Public | BDN
Susan Sharon | Maine Public | BDN
George Fergusson of Whitefield stands next to sticks he uses to measure the lake level.

Suppose your family owned a house or camp on a quiet, largely undeveloped lake. Every year, you fished, swam and waterskied on the lake, which you shared with loons and other wildlife. But then, a privately owned dam at one end was breached, nearly half the water drained, the lake level dropped by more than four feet and the place you loved completely changed.

That’s the situation facing property owners along Clary Lake in Lincoln County, where a six-year dispute with a now-bankrupt dam owner has left them high and dry.

Just about every day of the summer, George Fergusson of Whitefield takes his small boat out on Clary Lake. It’s about three miles long and nearly a mile wide. And every single day, rain or shine, Fergusson measures the lake’s water level. During the winter he breaks the ice with an ax to get to it.

“I grew up on this lake,” he said. “I went swimming. I went fishing. I was a fishing fool as a kid. We had canoes and rowboats. And I just grew up on the lake.”

But the lake Fergusson knew as a child, the same one he now lives on with his wife, is not the same as it was even a decade ago.

“About here you can see the black stain on the rocks where the water should be at this time of year or when it’s full,” he said.

Along Clary Lake’s shore, boat docks are stranded several feet above the water line. Small, sandy beaches that used to span a dozen feet now span several dozen yards. A public boat launch can no longer be used by motorboats. And elodea, a waterweed once kept in check by the lack of sunlight when the lake level was higher, now chokes out the swimming hole in front of Kelsie French’s family cottage.

“It grows up so high, if you go out in the water it’s like walking through hedges in the water, and it’s creepy and disgusting and a lot of people don’t want to walk through that to go swimming,” she said.

French worries about kids and others getting tangled up in the weeds or stuck in the mud. And Fergusson, who’s the secretary of the Clary Lake Association, says the fluctuating lake level hasn’t just affected property owners. It has dried up an adjacent marsh and degraded the lake itself.

For starters, he said, it’s less transparent.

“Corresponding with the decline in transparency is a rise in phosphorus, which is the primary plant food for algae, and we’ve really had some really severe algae blooms in the past few years,” Fergusson said.

Clary Lake property owners say the water level crisis dates back to 2011 when a small, privately owned dam at one end developed a hole in it. Dam owner Paul Kelley said it happened during Hurricane Irene. His company has since filed for bankruptcy.

“I genuinely feel for the people who have houses around the lake. This is an ongoing tragedy that should have had a resolution by now,” he said.

Speaking by cellphone, Kelley said he had every intention of fixing the breach after it happened and he said discussions were underway to make that happen. But he blames the Maine Department of Environmental Protection for taking the unusual step of issuing a water level order, requiring him to make adjustments that he says he couldn’t afford, especially for something that he says provides a public benefit.

Kelley challenged the DEP’s authority to set the order. The case is now slowly working its way through Superior Court.

“We understand the concerns of the citizens. We want to see the situation resolved,” said Melanie Loyzim, deputy commissioner of the DEP.

Loyzim said the department has tried unsuccessfully to negotiate with the dam owner. It has also proposed significant fines against him for failing to comply with the water level order. But she said that enforcement action is also tied up in the ongoing legal dispute.

“The court action will ultimately achieve some resolution. Unfortunately it’s not as quickly as everyone would like,” she said.

Members of the Clary Lake Association have also tried, unsuccessfully, to negotiate for the purchase or repair of the dam themselves. Fergusson said, ideally, the town of Whitefield, where the dam is located, should own it. Meanwhile, a couple that own lakeside property have filed suit over the lake level.

Malcolm Burson, president of the Clary Lake Association, said if there’s one thing that’s clear it’s that, so far, the law hasn’t been on their side.

“To me, it still comes down to the fact that under Maine law an individual can control the level in a water body that’s used by hundreds of other of people and not be accountable to them at all,” he said.

Briefs are expected to be filed in the challenge to the DEP’s water level order this fall. Depending on the outcome, there could be an appeal to the Maine Supreme Court which will mean an even longer wait for a resolution.

This report appears as part of a media partnership with Maine Public.

 


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