Lake Fairlee owes its present size and shape to a dam that was first constructed over two centuries ago. There was a lake here before the dam, but it was only about 80% of its present volume. The lake is owned by the State, but the dam is privately owned. If the dam were to fail, the water level in the lake would be considerably lower. Instead of their beautiful lakeshore many property owners would look out on an expanse of mud, silt, and decaying plants. The Lake Fairlee Association has long wanted to learn as much as we can about the condition of the dam, what should be done to preserve it, and what plans might be needed in the longer term.
In 1797 the Vermont Legislature passed an act enabling the construction of a dam a the southwest corner of Lake Fairlee “in order to supply with water several mills standing on the stream which empties out of said lake and the supplying said mills with a sufficiency of water to be of great public utility . . . .” [note] Eldad Post, perhaps with his son Aaron, built the original dam shortly thereafter. In 1831 the lake level was raised, and again in 1904 or 1905. At various times the rights of property owners abutting the lake have been considered, and at least once the dam owner “purchased flowage rights” from them. The saw mill that originally was located right at the dam was removed to another dam 1-2 miles downstream in 1891 (just above Route 113 in Post Mills).
By 1939 the dam needed repairs, and “was rebuilt at the expense of the littoral owners [the Lake Fairlee Association] , with the consent and under the direction of the [then owner Walter A. Malmquist].” [note] That repair necessitated lowering the level of the lake by six feet, about which the Lake Fairlee Association had no complaint. In the summer of 1941 Malmquist claimed the right to raise or lower the lake level whenever he pleased, and offered to sell to the Lake Fairlee Association “his water rights” for $20,000. When they declined the offer, he then opened the gate in the dam for two months, and “large areas of mud banks were exposed, a mephitic odor was generated by the decaying aquatic vegetation, and the littoral owners were impeded in their access to the lake from their cottages and boat houses.” (mephitic means a foul smelling or putrid stench)
As a result of this dispute, and presumably at the urging of the Lake Fairlee Association, the State of Vermont brought suit against Malmquist to enjoin him “from unreasonably and arbitrarily drawing down the waters of the lake.” Malmquist appealed on procedural grounds, claiming that the State did not have standing (was not a party in interest) so could not bring the suit. He also claimed that lowering the lake could not be considered wrongful, as he only returned the lake to its historical level (before 1797). Finally, grasping at a legal straw here, he argued that the original Act enabling the dam was unconstitutional.
The Vermont Supreme Court found Malmquist’s arguments unpersuasive, and granted the requested injunction. Along the way they said a lot of other things that might be of interest to the reader, who can read the whole opinion HERE.
More recently . . .
Jurisdiction over the dam now resides in the Dam Safety Section, a small office within the Facilities Engineering Division of the Department of Environmental Conservation. They are charged by Chapter 43 of Title 10 of the Vermont Statutes with periodically inspecting non-federal dams to ensure that they don’t “pose a potential or actual threat to life and property.” If they find a dam to be unsafe, they “shall issue an order directing reconstruction, repair, removal, breaching, draining or other action it considers necessary to make the dam safe.” The law authorizes further enforcement, even allowing the State to take the dam by eminent domain if the property owner does not remedy the unsafe situation. You can find the relevant laws HERE. I direct your attention especially to sections 1095 and 1105.
Pursuant to this authority, the State has inspected the dam from time to time, most recently in November of 2009. The engineer found the overall condition of the dam to be “fair.” They classified our dam as to its potential for downstream hazard as Class 3 (“low hazard”). This classification means that failure of the dam will only damage farm buildings, agricultural land, or country roads. It is possible that an examination of recent construction downstream might lead to reclassification. Class 2 (“significant hazard”) applies when there are a small number of habitable structures or appreciable agricultural structures in the potentially affected area.
The report included various recommendations for the owner, which involve monitoring, inspecting, testing, and planning for repair. Although it details numerous specifics in which the dam is less than optimal, we understand that previous inspections resulted in similar findings. So far the owner’s policy of benign neglect has been sufficient. You can download a copy of the report HERE. (pdf)
Map and pictures
Water leaves the lake from the west end and flows under Robinson Hill Road into a small cove, then over (and through) the dam about 300 feet downstream. As can be seen in the photo at the beginning of this post, a house sits in the middle of the dam. To the south (to the left in the photo above) there is a 30 foot section of dam, where a spillway flows over the top. To the north the dam extends about 120 feet.
The dam is visible, and the house straddling it, in the photo below. It is the bright line in the forest near the middle of the picture. The dark area to its right is the outlet of the lake, and the outlet stream can be discerned as an upside down “U” to the left. HERE is the surrounding area in google maps as an aid in orientation.
I was able to see the dam from downstrean by walking in the streambed. The day I took these pictures no water was flowing over the spillway, as it had been relatively dry and the lake level was low. There was lots of water flowing through the dam, however. The following two photos were taken from below the dam, looking back up at the long (northern) portion.
The ladder and the railing give an indication of the relative dimensions of this part of the dam. Water is not seeping, but flowing freely through the dam at several locations.
This photo was taken from the same location, looking just a little to the right. Here you can see quite a lot of water coming from the portion of the dam under the house. Note also the cinderblocks stacked up to support the walkway where the dam has eroded.
Where do we go from here?
We are grateful to the Town of Thetford for calling for the recent inspection. It suggests the possibility of seeking to have the dam reclassified, which would at least get it inspected more frequently. The Lake Fairlee Association can educate ourselves and our neighbors about the condition of the dam, and its economic importance. We can partner with the Town, offering volunteer help where requested, and at some point financial help. We can continue to study the confusing statutory and jurisdictional situation that might arise should the dam give indications of impending failure.
We do not expect any significant action or change in the dam in the short term, but feel that clear communication and greater understanding can only help in the long run.
[ our dam’s State Identification Number is 206.01 ]
[Later posts about the dam are compiled HERE]