State regulators recently approved a request from Nordic Aquafarms to place a key wastewater permit for the company's proposed $150 million salmon farm under the jurisdiction of the state Board of Environmental Protection.

In addition, Nordic asked that the permit application be combined with two others, for the Natural Resource Protection Act and Site Location of Development Act, that the company expects to submit soon.

Nordic said the move was a practical step, not a concession to salmon farm opponents, who have asked for BEP oversight of the facility's wastewater discharge permit.

In a letter to the state Department of Environmental Protection, Nordic's attorney, Joanna Tourangeau, said the opponents' rationale for requesting BEP oversight "has no legal merit."

However, Nordic would request that BEP assume jurisdiction, she said, because the company "has and continues to prioritize a transparent and open application process."

"The efficiencies of consolidating review for NAF, the Department, and the Board as well as all interested parties are obvious," she wrote.

Critics of the salmon farm proposal believe Nordic is simply trying to buy time in the face of increasing scrutiny from DEP over the location of the facility's proposed wastewater discharge pipe.

Kim Ervin Tucker, an attorney representing Upstream Watch and Maine Lobstering Union, had her own request for BEP oversight denied, but she wasn't impressed with Nordic's decision to volunteer.

"Transparency has nothing to do with NAF’s request," she wrote in an email to The Republican Journal.

Ervin Tucker said opponents had established a basis for BEP oversight and both Nordic and DEP knew it was headed that way. Meanwhile, the company was facing a challenge to its claim of land rights to the intertidal zone.

On Jan. 22, DEP, responding to pressure from opponents, demanded that Nordic prove its right, title and interest to a stretch of intertidal zone that would be crossed by the pipes running between the salmon farm and the bay. The department gave the company until Feb. 6.

The state Bureau of Parks and Lands made a similar request in mid-January in relation to Nordic's pending submerged lands lease application, giving the company a comparatively generous 90 days.

Nordic representatives have said their survey, by Gartley & Dorsky of Camden, supports the proposed pipe route but have dismissed demands from opponents to make it public.

"Transparency would be served by making the Dorsky survey public and admitting they lack (right, title and interest) and that they misrepresented the location of the project on their application," Ervin Tucker said.

Establishing clear rights to the intertidal zone might prove difficult. In Maine, shorefront property owners can lay claim down to the low-tide line, but the law is poorly understood, and upland deeds typically measure only as far as the high-tide line or the "shore."

Nordic secured an easement for its water pipes — two for water intake and one for discharge — across a shorefront property before applying for a submerged lands lease and wastewater discharge permits. Both the Bureau of Parks and Lands and DEP initially accepted the plans, which showed the pipes lying within an extension of shorefront property lines.

However, the two departments backtracked when pressed by opponents for Nordic's survey showing right, title and interest in the intertidal zone.

To date, neither Nordic nor any of the neighboring landowners, who could contest the pipe route, have produced surveys of the area between the low-tide and high-tide lines, and opponents are banking on conditions at the pipe location — a natural cove with wide mudflats — being ripe for conflicting interpretations.

The debate over the pipe route has had the unusual effect of turning environmental activists into dogged defenders of obscure private property rights and prompted the company they accuse of cutting corners to fool regulators to ask for more government oversight.

Opponents, most notably Paul Bernacki, a Belmont farmer who has hounded state regulators on the matter of right, title and interest, have been clear that they want to stop the salmon farm by any means possible.

Nordic has repeatedly denied the maneuvering alleged by opponents.

When asked if a survey of the intertidal zone exists, Marianne Naess, Nordic's director of operations, said the company would produce the necessary documents when they are needed.

"They are claiming there is uncertainty," Naess said. "We have said everything will be in place for the final application, so there's no need to submit it now."

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