March 28, 2024
BANGOR DAILY NEWS (BANGOR, MAINE

Appleton pond still surviving removal order > Owner unable to find contractor willing to help meet DEP directive

APPLETON — “I’m not defying anyone,” said rhododendron grower Charles Woodman on Friday during a walk around his celebrated, 1-acre farm pond.

The pond has survived despite a court order issued last summer to remove it. The Maine Department of Environmental Protection won a long court battle over several years arguing that the pond destroyed a trout habitat, elevated water temperature and caused erosion.

Woodman disputed each of the DEP allegations but lost at every stop in the court process all the way to and including the Maine Supreme Judicial Court. Despite the court order, the pond is likely to survive at least another year, since the best time to do the work is during the relatively dry month of October, Woodman said. He said it would be impossible at this time to find and hire a contractor to begin the work by the fall.

Woodman said he has tried his best to comply with the court order, but has not been able to find a contractor willing to destroy the pond. The seventh and last contractor he contacted was William McFarlane of Seacoast Ocean Services of Portland, the firm which cleaned up the 1996 Portland oil spill. After McFarlane examined the site in July, he said removing the pond would cost more than $40,000 and create a “strip mine out of a beautiful wetland.”

McFarlane’s report recommended to the DEP that the pond be left alone. Last Month, Woodman sent the McFarlane report to Gov. Angus King. When he was campaigning for the Blaine House four years ago, King promised to look into the matter if elected, Woodman said. Woodman has received no response from the governor’s office.

The DEP is watching the Woodman pond situation closely and is “weighing possible options,” according to Mike Mullen of the DEP enforcement division. Mullen said he didn’t “necessarily disagree” with McFarlane’s assessment of the situation.

When asked whether the department thought Woodman was making a good-faith effort to comply with the court order, Mullen replied, “That’s hard to say. He has contacted a number of contractors who will not touch the project and that’s understandable. We don’t want to get to the point of a contempt of court action,” Mullen said. In discussions with the Attorney General’s Office, the DEP is still considering such options as appointing a receiver to carry out the court order, he said.

“We have not decided what to do,” said Mullen, who estimated a decision would be made in several weeks.

On Aug. 16, Woodman and about 60 friends celebrated the continued life of the pond with a lobster dinner. The event marked the anniversary of a rally held last summer which drew 1,000 people and raised $10,000 toward the cost of removing the pond. Woodman still has that money in a savings account. Money raised this year went to the Maine Property Rights Alliance Inc. and Unorganized Territories United.

Once nonpolitical, Woodman has joined the state movement to protect property rights. He said the Property Rights Alliance is a new organization formed to educate residents, sponsor legislation, protect and restore rights, and serve as a watchdog on proposed land-use regulation.

Though Woodman has lost repeatedly in court, he did win his case in a mock trial conducted by the middle school students of Jessica B. Harrington in Orrington.

Harrington read about the case last summer and initially took the side of the DEP. “I was annoyed that you appeared to be just another person with little regard for, or understanding of, the environment and just did whatever you wished with your land,” the teacher wrote in a letter to Woodman.

When one of her students disagreed with her interpretation, the class decided to make the Appleton pond a class project. John Cullen of the DEP addressed the class, and the students did their own research on the court case. They studied watersheds and freshwater fisheries and concluded their research with a class trip to the pond.

The students then conducted a two-week trial in November, complete with lawyers, witnesses, a judge and jury.

Their verdict: Leave Woodman and his pond alone.

“After having seen your pond, questioned you and inspected the stream bed above the pond for several hundred yards, I now believe the DEP should have grandfathered your pond as suggested and required some minor improvements to the surrounding area. The stream could not have provided much of a spawning area for brook trout.

“It appears to me [us] that the DEP was unreasonably stubborn and ineffective in resolving this issue in the most environmentally sound way possible. They may be technically correct within the law, but that does not mean they are ethically or morally correct,” Harrington wrote.


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