PORTLAND — Business and Consumer Superior Court Justice Michaela Murphy handed down a decision Feb. 23 in which she sided with the state in an appeal of the Board of Environmental Protection’s decision to permit Nordic Aquafarms’ proposed land-based fish farm.

Project opponent and environmental organization Upstream Watch, local property owners Jeffrey Mabee and Judith Grace, Friends of Harriet L. Hartley Conservation Area, Maine Lobstering Union, and local fishermen Wayne Canning and David Black filed the appeal soon after the state issued Nordic its permits Nov. 19, 2020.

Plaintiffs claimed that the company did not have sufficient title, right or interest in land beneath which it proposed to lay intake and outfall pipes and that the board’s decision to permit the project was not based on substantial record evidence.

Murphy described the court’s standard of review in her order, stating that it could only overturn a decision of the board if it violated the constitution or statutes, exceeded the board’s authority, was procedurally unlawful, was arbitrary or capricious, constituted an abuse of discretion, was affected by bias or an error of law, or was unsupported by the evidence in the record.

Title, right or interest

Murphy found that the state did not make an error in its determination that Nordic had sufficient title, right or interest in the land where it intended to lay its pipes. An applicant’s evidence of title, right or interest is only relevant for processing permits and to make sure that “state resources are not squandered investigating permit applications which the applicant clearly has no legal capacity to utilize if granted,” she wrote in the order.

Plaintiffs argued that the easement option over the upland property and adjacent intertidal land where Nordic wants to place its pipes was not specific enough to establish sufficient title, right or interest. Ownership of the property was also under dispute in court when the board was considering the permits.

Property owners Mabee and Grace own land a couple of lots south of the intertidal area where Nordic wants to lay its pipes. The couple claimed historic deeds proved they owned the intertidal land in question, along with intertidal land in front of several neighboring properties north of theirs.

They entered into a conservation easement with Upstream Watch initially, then that easement was transferred to the Friends of Harriet L. Hartley Conservation Area. That conservation easement encompasses the intertidal areas in front of Mabee and Grace’s upland lot and all the other intertidal land they claimed to own north of their upland lot, including the intertidal area where Nordic wants to lay its pipes.

At the time, Janet and Richard Eckrote owned the upland lot in front of the disputed intertidal parcel. The Eckrotes claimed they, not Mabee and Grace, owned that intertidal area. The Eckrotes had given Nordic an easement to use their upland property and adjacent intertidal area to lay its pipes. Mabee and Grace took the Eckrotes to court over ownership of that intertidal parcel.

Last fall, Waldo County Superior Court Justice Robert Murray ruled that the intertidal land had been conveyed with the upland property owned by the Eckrotes, essentially saying the Eckrotes had owned that intertidal area. That decision is under appeal.

Because it was decided in the separate intertidal ownership lawsuit that Mabee, Grace and other petitioners do not have legal interest in the intertidal land in question, they lack standing to bring an appeal on grounds relating to that property, Murphy wrote in her order for the permit appeal case.

The conservation easement on the intertidal land, which gave plaintiffs standing in the title, right or interest dispute, is void because the land was not determined to belong to Mabee and Grace, which makes their complaints moot, according to Murphy’s order.

While the intertidal ownership case was being litigated in Waldo County Superior Court, in June 2021, the Eckrotes sold their property to Nordic, which then conveyed the land to the city of Belfast in exchange for an easement to place its pipes across that land.

The city decided to use the property as a public park and adjoin it to the Little River Walking Trail, bringing that trail all the way down to the ocean. It also said it was going to place the land in a conservation easement.

In August 2021, the city took ownership of the intertidal land by eminent domain before Murray ruled in the intertidal ownership lawsuit. Councilors said the action was necessary to finalize the Purchase and Sale Agreement among the city, Nordic and the Belfast Water District, as well as to acquire a new city park, along with other public benefits.

Mabee, Grace et al brought suit against the city, claiming that the taking was unconstitutional and that the city could not dissolve the conservation easement on the intertidal land by means of eminent domain.

Other claims

Addressing other claims in the lawsuit, Murphy found that petitioners did not show good cause when they requested that the board reopen the record so they could admit a map of the haul route by which Nordic intends to ship its excess dredge spoils on barges. That route goes from the dredge site where pipes will be laid to Mack Point in Searsport. The spoils will then be taken by truck to a land-based disposal site.

Plaintiffs argued that the map proved that the company had materially changed its dredge spoils disposal plan, but Nordic denied it had deviated from the original plan in the permit.

Plaintiffs also argued that Nordic should not have received permits because the recirculating aquaculture system it is proposing is not the best practicable treatment. They said a closed RAS system, one that does not require intake of new water from an outside source, should be used. They also argued that there would be an excess of pollutants in the discharge that would overwhelm Belfast Bay.

Murphy said the board did not have to require applicants to use the best practicable treatment, but rather could permit an applicant to use the best available treatment. Those two terms are distinct, the justice wrote, and best available treatment is appropriate when the best practicable treatment may not be economically or pragmatically feasible.

She also found no issue with the state’s recalculation of predicted nitrogen levels to be discharged into the bay by the company’s outfall pipe. The information used to recalculate those levels was already in the record. She said the court could not question the board’s findings or chosen methodology in this instance, only whether it abused its discretion.

She did not find any errors in the board’s decision to accept Nordic’s minor source air emissions license. The board gave the company a yearly fuel limit to use in its eight generators that it must abide by and if it exceeds that fuel use, resulting in more air pollution, it will have to apply for an amendment to its air emissions license.

She rejected the  plaintiffs’ assertion that other emissions sources at the facility should be included in the state’s emissions calculations for the project,  saying those emission sources were either exempt or insignificant.

She also found that there was sufficient evidence to support the board’s findings for the site location of development permit.

‘Onward’

Nordic issued a public statement on Facebook that the court’s ruling affirms the permitting process and the science behind it. “Although the opposing parties may try to appeal again the pattern is pretty clear now — claims made against Nordic and others have never been robust or well-substantiated,” it said in the statement.

Mayor Eric Sanders said he was not surprised by the ruling, and he looks forward to the project’s progressing. “Onward,” he said.

The Friends of Harriet L. Hartley Conservation Area issued a press release stating that it was disappointed in the ruling and intends to appeal Murphy’s decision.

Upstream Watch also issued a public statement expressing its disappointment in the judge’s decision. It intends to appeal the decision to a panel of the Maine Supreme Judicial Court.

“The District Court ignored Upstream Watch’s detailed explanation of the federal permitting errors and omissions by Nordic Aquafarms in a short ruling that seems to support business as usual,” President Amy Grant said in the statement. “The protection of our environment requires proof that a business won’t pollute our water and air before they discharge into the Gulf of Maine.”

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