Opponents plan to appeal Belfast Planning Board approvals, as well

State approval of Belfast salmon farm is appealed; city Planning Board OKs project

Sun, 12/27/2020 - 10:30am

    BELFAST — While Belfast City Hall and the privately-held Nordic Aquafarms, Inc., announce the Dec. 22 Belfast Planning Board approval of Nordic’s indoor salmon raising venture, opponents have filed appeals of state permit approvals in the Superior Courts of Kennebec and Waldo counties.

    Those opponents also commit to appealing the Belfast Planning Board’s Dec. 22 approval to the city’s Zoning Board of Appeals. That is the first step in municipal process that citizens who dispute governmental decisions follow, prior to taking any grievances to court.

    A ZBA appeal must be filed within 30 days, or by January 21, and only individuals and organizations that the Planning Board has recognized as a Party-in-Interest or Nordic itself can file an appeal.

    Meanwhile, the proponents are pleased, and say they have one last permit to obtain from the U.S. Army Corps of Engineers, as well as a property lawsuit to resolve, before building.

    “The court case is scheduled for February,” said Marianne Naess, executive vice president with Nordic, Dec. 22. “At this point, I can’t give you any definite date for start-up of construction.”

    The city likewise included a stipulation in its Dec. 23 condition of approval that referenced the property lawsuit, and said:  “No work on the intake or discharge pipes that Nordic proposes to locate within the intertidal area adjacent to the Ekrote property shall commence until a final judgment issued by the Waldo County Superior Court, Docket No. ----?----, effectively determines that Ekrote and/or Nordic have sufficient legal right, title or interest in and to the intertidal area that is sufficient for Nordic to engage in the uses approved in the City permits.”

    “It has been three years since we selected Belfast for our project on the U.S. East Coast,” said Nordic Aquafarms president Erik Helm, in a Dec. 23 joint press release issued by the city and the business. 

    “This week, the local permitting process came to an end,” he continued. “I want to thank our great employees in Maine, the City of Belfast, the Planning Board, and the many others in Belfast who have supported a robust permitting process. It has been a significant undertaking for all. The outcome is an economic development project with significant long-term benefits for Belfast. We look forward to next steps.”

    Belfast City Manager Erin Herbig also weighed in: “I applaud the hard work put in by members of the Planning Board and all City Code and Planning Department staff on behalf of our community. Citizens should feel confident in the diligent permitting process both at the municipal and state level to approve this important project.  We thank Erik Heim and his team at Nordic Aquafarms for their commitment to Belfast as home for their future in Maine’s economy.”

    But Kimberly Ervin Tucker, a Lincolnville attorney who represents citizens opposed to the project, said Dec. 22 that she will appeal the Planning Board decisions to the Belfast ZBA, and will fight on behalf of her clients who are arguing in Waldo County Superior Court against Nordic over intertidal property rights.

    “It is a shame that Belfast is proceeding with this permitting process, ignoring Maine Supreme Court precedent in the Tomasino case, which makes clear that NAF [Nordic Aquafarms] lacks administrative standing to get a permit based on an easement, the factual and legal parameters of which are in dispute, and the subject of a pending Superior Court declaratory judgment case to quiet title filed by the true owners of the intertidal land that NAF seeks to destroy,” she said, Dec. 23.

    In commenting on the Belfast Planning Board decision, Tucker continued: “Fortunately for Belfast taxpayers, Nordic is paying the attorneys' fees of the planning board's attorney Bill Kelly, despite the due-process violations that that arrangement creates.  Unfortunately, this decision confirms that the Belfast Planning Board has chosen to ignore the constitutionally protected property rights of 40-year Belfast residents  and taxpayers, who have been and remain good and honest citizens, in favor of a foreign corporation.  It is shameful and disappointing, but sadly not surprising.  Belfast seems intent on returning to its chicken factory polluting days and ways.”

    Another group, the nonprofit Upstream Watch, also commented Dec. 23 on the Planning Board votes: “Upstream’s goal of restoring the Little River will be impossible if the Nordic facility is constructed, which means we need to work harder to make sure their permits are nullified. Upstream will be working through the steps of the appeal process in the coming weeks. We are very fortunate to have such a large and growing group of enthusiastic supporters.”

    But, Naess said the company’s permit applications, “have gone through extensive vetting and were approved unanimously.”

    Nordic’s intent to build a land-based aquaculture facility was first unveiled in January 2018 with public fanfare that included the former Gov. Paul LePage. The project will rely on a steady supply of freshwater from the City of Belfast and local wells, and its discharge involves piping treated wastewater into Penobscot Bay.

    The debate over the project has been fierce since soon after it was first introduced, and concentrates on environmental concerns, as well as a litigious battle over intertidal easement rights for the discharge pipes.

    “Permitting RAS Aquaculture facilities of this scale is uncharted territory in Maine and Nordic Aquafarms strongly believes that strict regulations and conditions will ensure that land-based aquaculture can be safely developed in Maine both now and in the future,” the company said in November, after receiving conditional state project approval.

    The $500 million investment into the Belfast site, where Nordic plans to breed, raise and sell 72,732,000 pounds (33,000 metric tons) of salmon per year, has been a complicated application for the state to process, and it ranks in the eyes of the Maine Dept. of Environmental Protection as a “major project,” along with other large scale endeavors, such as the controversial Central Maine Power transmission line and the Juniper Ridge landfill.

    Nordic’s salmon are to be raised inside, in contained large tanks, and marketed for human consumption.

    The facility, according to a corporate statement, is a: “54-acre multi-stage development project with a complete value chain from incoming eggs to processed fish out the door. The facility will deliver a quality salmon product to the north-east region of the US when in operation. Construction is scheduled to begin in 2020.”

    Appeals and intertidal dispute 

    “The appeals were anticipated and there is no surprise in the content of the appeals,” said Naess. “All the arguments of the opponents have been brought up over the last couple of years, and have either been rejected or refuted by facts as part of the permitting process.”

    Nordic Aquafarms, Inc., is a U.S. subsidiary of the Norwegian company Nordic Aquafarms in Fredrikstad, Norway. It has established a corporate office in Portland, and has plans for a Humboldt, California, fish farm, as well. 

    The Belfast Planning Board, in applying conditions of approval, is requiring a performance guarantee for construction that would affect public infrastructure or adversely affect abutting property if the project facility is not built.

    According to Planning board Findings of facts: “Nordic has stated their intent to use several methods of financing for project construction, including but not necessarily limited to raising private equity through shares issued through the parent company, debt/borrowing, and revenues generated from the project (Phase 1 revenues to benefit Phase 2). While Nordic does not currently have specific financing in place for the project, in its application (Attachment 9) Nordic identified how it would raise needed capital and their ability to raise such capital.”

    On Dec. 22, the Belfast Planning Board voted unanimously to grant Nordic a Site Plan Permit, Zoning Use Permit, Shoreland Permit, Significant Groundwater Well Permit, Significant Water Intake, and Significant Water Discharge Permit.

    In addition to the Belfast Planning Board approval, Nordic also obtained in November permit approvals from the Maine Bureau of Environmental Protection, as well as a Maine Bureau of Parks and Land permit approval, issued in September.

    Tucker, acting on behalf of her clients, had already submitted earlier this fall an appeal in Waldo County Superior Court of the Maine Bureau of Parks and Land’s submerged lands lease and dredge lease for the project.

    On Dec. 18, she filed another appeal on behalf of those same clients, again in Waldo County Superior Court, this time asking for judicial review of the BEP permits.

    Meanwhile, on Dec. 16, another group of citizens, represented by David Losee, of Camden, had also appealed the BEP permits in Kennebec County Superior Court.

    The appeals, classified at 80C petitions (see attached PDFs) claim errors were made by the BEP on several counts, with a fundamental mistake being that the state, “abused its discretion and/or made findings unsupported by record evidence when it improperly found Nordic had sufficient title right or interest to seek permits.”

    Additionally, the appellants said the state also failed in not requiring a proper discharge license, and was not rigorous enough in applying air pollution standards.

    The Maine Department of Environmental Protection, which normally processes permit applications from industry and businesses had asked the all-volunteer oversight Board of Environmental Protection to take over review of the applications in 2019, considering the project’s “statewide significance.”


    Opponents argue on several counts

    Attorney Tucker, represents:

    • Jeffrey Mabee and Judith Grace;

    • the Maine Lobstering Union (Local 207 of the International Association of Machinists and Aerospace Workers within District Lodge 4 of the IAMAW. The IMLU was incorporated in the State of Maine as a nonprofit fish marketing association),

    • Wayne Canning Black;

    • David Black; and

    • the Friends of the Harriet L. Hartley Conservation Area.

    Attorney Losee represents the nonprofit Upstream Watch.

    According to Amy Grant, president of that nonprofit: “Upstream was formed informally many years before Nordic appeared with the primary goal of restoring the Little River.  We incorporated as a 501C3 in the summer of 2018.  We have about 6,000 people on our mailing list with an active group of volunteers numbering in the 100s.”

    Board members of Upstream Watch include Amy and Jim Grant, Martha Reeve, Jonathan Fulford, Susie O’Keefe, Victoria Matthews and John Krueger. The Upstream mission is, “advocate for the health of Midcoast Maine rivers and watersheds through science and education.”

    The opponents are arguing:

    1) That a current dispute over waterfront ownership precludes the BEP’s processing of the permit applications.

    Tucker wrote in her Dec. 18 Rule 80C petition challenging final agency action by the BEP, that seven state permits granted to Nordic were improperly processed because Nordic does not have sufficient title to an easement over a piece of land. This dispute is currently before the Waldo County Superior Court, and concerns ownership intertidal land where the Nordic pipes are to cross and extend in the ocean.

    The BEP erred, she said, by not determining that a, “threshold jurisdictional question, regarding NAF’s alleged demonstration of ‘sufficient right, title or interest,’ so fundamentally infects every other decision that the Board has made, this question requires resolution by the Court before the Petitioners should have to address the other substantive errors made by the Board.”

    2) Upstream contends that the BEP abused its discretion by failing to consider new technology — zero discharge – presented during the hearings by intervenors, “which should be the basis for zero discharge effluent limitations.”

    Upstream wants the matter remanded back to the BEP and DEP in order for new technology to be considered.

    3) The nonprofit said BEP abused its discretion by allowing evidence after the record had closed, constituting a violation of due process.

    4) Upstream said the BEP erred when it found Nordic’s applications to be complete.

    5) And, the nonprofit said hat the BEP failed to require a discharge permit for its sludge dewatering plant.

    “Nordic failed or refused to submit the information mandated in the MPDES including providing the contents and concentration levels of its proposed discharge,” wrote Grant, in a Dec. 22 press release. “Nordic also failed to perform competent studies to determine the flows, currents, winds, tides, and thermal impacts of the Penobscot Bay receiving water at different depths.”

    6) And Tucker, speaking on behalf of the fishermen she represents, said the Lobstering Petitioners will suffer from, “impacts on the abundance, distribution, health, access to and commercial value of lobsters in and from Belfast Bay and Penobscot Bay, as well as the potential adverse economic impacts from possible contamination of lobsters caused by disturbing long-buried HoltraChem mercury or discharge of contaminants in the NAF wastewater, which could irreparably damage the reputation for wholesomeness of all lobsters marketed and sold under the ‘Maine Lobster’ brand – including but not limited to lobsters that are caught or landed specifically in or from Waldo County in Belfast and Penobscot Bays.”

    To Upstream Watch, unresolved issues include the Goose River aquifer, Belfast and Bayside’s only source of drinking water, the two aging dams along the Little River, and, “eight 67-foot tall smokestacks for the exhaust from their diesel generators,” wrote Grant, in her release.

    As the appeals wind through Superior Court, whether in the county of Waldo or Kennebec — Tucker said Dec. 23 that she would not object to consolidate her petition with the Upstream appeal, which had been filed in Kennebec County Superior Court — the process will involve briefs filed, conferences scheduled, and adherence to court system expectations.

    Nordic Aquafarms is optimistic it will move forward with its salmon facility.

    “Nordic Aquafarms has always been willing to listen to opposing arguments and has gone to great length to address any issue that has come up,” said Nordic’s Naess, in a November news release. “During this process though, there have been several attempts on discrediting both the science behind the application and the company. Nordic is encouraged that science prevails in this process.”

    Yet, the debates continue in the community, with lines drawn.

    “It has been a long, careful, and thorough process,” said City Councilor Mike Hurley, in the Belfast Dec. 23 press release. “My thanks to the Planning Board and Planning Department for their dedication and service.”

    “The appeal also includes that the BEP improperly found Nordic had sufficient Title Right or Interest to seek permits,” wrote Grant, in a Dec. 22 press release. “Upstream, in a pending action before the Waldo Superior Court, believes the court will find that Janet and Richard Eckrote do not own the intertidal land seaward of their upland property, and that they never did. Upstream will ask the Court to vacate all of the permits awarded to Nordic on November 19, 2020.”

    She projected, “the ongoing BEP appeals process is likely to not be addressed by the court until the summer of 2021.”

    Reach Editorial Director Lynda Clancy at lyndaclancy@penbaypilot.com