Town exploring legal action about Wentworth Pond drawdown, citing environmental, economic concerns

ALTON — Town leaders and residents are concerned about potential negative impacts following the drawdown of the Alton Power Dam, and the handling of the situation by the state agency in charge.

Town Administrator Ryan Heath is looking into legal action, including acquiring the dam, which is owned by New Hampshire Fish and Game. No court paperwork has been officially filed as of Thursday, according to Heath.

“We’re currently exploring every legal avenue that the town has available to itself,” Heath told the selectboard Sept. 9. “The state owns the property. It puts us at a big disadvantage when it comes to what is going on. Irreparable harm is the term being used right now, and irreparable harm at a threshold with the court system has to be proven.”

Heath said in an interview Thursday the town is exploring the impacts of lowering the water level on Wentworth Pond on property values and environmental concerns, as well as how it will affect peoples’ well water.

“We have a few different concerns when it comes to water level, and that we’ve already been receiving reports from residents about significant drops in their static water well,” Heath said.

At the Aug. 11 selectboard meeting, there was public outcry following a presentation by Corey Clark, chief engineer of the Dam Bureau of NH Department of Environmental Services, when he said a drawdown of 12 feet would take place.

During that meeting, town leaders said they felt blindsided by such a request, and worried about the implications.

The drawdown originally came before the selectboard in the spring, when representatives from NH DES proposed lowering Wentworth Pond, behind the Alton Power Dam, by 2.5 feet. This was for data collection, passive restoration and to provide for additional storm discharge capacity.

Clark said issues came up in the spring, including sediment testing, and due to ice conditions and timing, the drawdown needed to be postponed.

After the Aug. 11 meeting, just days before the first drawdown, the state altered the plan to draw down 2 feet on Sept. 2, and then on Sept. 22, the next drawdown of about 9 feet will take place.

Since the spring drawdown was postponed, NH DES staff collected samples, but results were not seen by town leaders until Sept. 1, one day before the drawdown. Heath said a massive stack of paperwork was dropped off at Town Hall, which he called “unbelievable” during the Sept. 9 meeting.

Heath has been in constant communication with legal counsel. He is now seeking experts to provide testimony, and is currently finding the scope and costs of a legal battle to bring back to the selectboard.

He is looking for experts who specialize in building, constructing, and repairing dams. He is also seeking an expert to provide testimony about sediment travel, including toxins, and the environmental aspects of the action.

“These are the two big experts that we need to retain and speak on behalf of the town,” Heath said.

Potential action

Heath said the town is seriously looking into whether it should acquire the dam. He has been in contact with the selectboard in New Durham, as well as state representatives. While New Durham leaders would not want to own the dam, they have a common goal of protecting the dam, the environment, and the Merrymeeting River and Lake Watershed.

Not only is the Merrymeeting River and the area above the dam in Wentworth Pond at risk, the river leads directly into Alton Bay, presenting a concern about how it will affect Lake Winnipesaukee.

Two aspects need to be addressed, he said, including the change in regulations to a 1,000-year storm. He noted New Hampshire is the only state with this categorization.

The difficult part, he said, is the rules were followed properly by the state, which has a committee that sets the laws they follow.

Potentially more important is the definition of a high-hazard dam.

“They have rated the dam high-hazard,” Heath said. “That also plays into the issue of the town taking over the dam.”

Heath said state staff made it clear if the town took over ownership, they would be responsible for the high-hazard standards, replacements, and repairs needed. They cited “big dollar amounts as to what that might cost,” Heath said.

“That is why the definition of a high-hazard dam is significant.”

Heath said it has to be proven the water would top 1.8 feet of the topping, and representatives from the state say it needs to flood an occupied structure to be high-hazard.

This is where expert testimony is needed, Heath said. Heath has personal experience he said is relevant. For years, the town was operating under FEMA maps from 1986, which showed the Central Fire Station in a flood zone.

“I know this, because I was the emergency management director, and it was a big concern about trying to pull everything out of the flood zone.”

When town leaders were researching a new public works building, and looking at the Hidden Springs location, a GIS expert took data about the river and the dam. A question from the study was how they knew the fire station was in the flood zone. The maps were so out-of-date, the GIS expert mapped the distance. It was found only 2 feet of the banking of the central station property was actually in the floodplain.

Heath said there could be a legal question of whether the Alton Power Dam is actually high-hazard.

“That changes everything, if the court rules that it’s not a high-hazard dam,” Heath said Sept. 9. “I think a lot of us can agree at this point in time, we’re really kind of looking on fighting what the inevitable, or what they think is the inevitable action of the total removal of the dam. And we have to be prepared for that.”

Heath said this would be “catastrophic in itself to the community around the lake, to the town itself, and to properties.”

“I haven’t heard anybody, besides the state, that’s in favor of removing the dam,” Heath said Thursday.

Executive Council involvement

While the removal of the dam is a worry of Heath’s, and others, Executive Councilor Joe Kenney assured residents the state is “not taking down the dam next spring.”

“The drawdown is to evaluate the structure and the potential adversarial toxins that might be in there based on past year,” Kenney said Thursday. “Other than that, I think they will lower it 9 feet for a couple weeks, and slowly bring the water level back up through natural process.”

Kenney said at the Governor and Council meeting Sept. 16, he was assured there would be 30 days for a final report on any deficiencies found, and overall results of the inspection.

Kenney has spoken to concerned residents, who worry the dam will someday be removed entirely. He said one was Don White, who owns the Merrymeeting River private community, who took the councilor out a few weeks ago, to show the dams and impacts of the recent drawdown.

White was checking on the dam Thursday morning, and has concerns about the marsh above the dam, which he said was already down about 2.5 feet of water.

“It’s a pristine area that hasn’t been developed,” White said. “It's got conservation, and Fish and Game own land up there. There are all kind of birds that pass by, from eagles to osprey, to ducks. There’s wildlife: beaver, otter, muskrat, etc.”

White said there are no houses in the area, and it is “like going up north.” He is worried about what the drawdown could do to the habitat. White said people in the park he owns share the same concerns.

“The great thing about the marsh is nobody knows it’s there, but the bad thing about it is nobody knows it’s there,” said White, who has lived there for 47 years.

White is worried about the dam being torn down some day, and hopes it can be repaired, to ensure the habitat stays as it is. Kenney also hears the concerns of the public.

“I have taken a position, clearly, that I don’t want to see the Alton Power Dam go anywhere,” Kenney said. “I want it to stay exactly where it is at, and I’ll make the state agencies know. I’ll take a loud position on that.”

In the Sept. 16 Governor and Council meeting, Kenney told Gov. Kelly Ayotte (R-NH) dams have been a hot topic among his constituents.

“There’s a rumor afoot that you’re going to take down that dam in the spring, and suddenly it’s going to disappear, and this is just some movement towards doing that,” Kenney said to NH DES leaders at the meeting. “Can you assure me that you are not tearing down that dam in the spring of next year?”

Robert Scott, commissioner of NH DES responded, “That’s correct. We have no resources to do that.”

Town, state tension

Heath said town leaders have been discouraged by the lack of insight by legislators, saying they have not received any feedback from their state representatives or the governor.

Requests for comment from Reps. Barbara Comtois (R-Barnstead), Peter Varney (R-Alton), and Paul Terry (R-Alton) were not returned by deadline.

Sen. Jim Gray (R-Rochester) said there was not a lot he could say, now legal action is taking place.

“The department won’t talk to us anymore, because everything has to go through attorneys,” he said.

When Gray was asked about his feelings about opposition from town leaders, he said he needs to worry about the constituents who would be at risk if the dam failed. It has been said if this were to occur, there could be potential catastrophic loss of life.

Gray said the drawdown will allow state staff to inspect the dam, and see if it should be “on the red list or not.”

“I’m trying to reach that middle ground that protects the people downstream, but also provides services that people upstream are accustomed to,” Gray said.

Ayotte’s office declined to comment, deferring to NH DES. Clark said the drawdown Tuesday will go forward.

“Following the initial lowering, the impoundment will remain at the reduced elevation for approximately two additional weeks to allow for system stabilization and continued monitoring,” Clark said. “At the conclusion of this period, the reservoir will be gradually refilled to its present operating level prior to the onset of winter conditions.”