BEP Decision from Maine Supreme Court Remand Frustrating, but Not Surprising
Attorney David Perkins (center) presents oral arguments before the Board of Environmental Protection (right) in Augusta. There were many in attendance in the audience to witness the proceedings, including members of Upstream Watch, Friends of Harriet Hartley, and representatives from Nordic Aquafarms.
Last Thursday, October 19, 2023, the Board of Environmental Protection (BEP) unanimously found its approval of Nordic Aquafarms’ permits issued in November 2020 is not impacted by the Maine Supreme Court’s February 2023 decision in the Mabee I quiet title action case.
After hearing presentations from Upstream Watch’s attorney, as well as those representing Friends of Harriet Hartley, Judith Grace and Jeffrey Mabee, the Northport Village Corporation, and Nordic Aquafarms, BEP members had limited questions and discussion before issuing their decision. The BEP found that the Maine Department of Environmental Protection’s original finding and concurrence by the BEP that evidence of sufficient title, right, or interest (TRI) to warrant processing of the permit applications was demonstrated at that time and remains in place, and that the BEP does not have the authority to rescind or amend permits once issued. They also restated their belief that TRI is a threshold to overcome for the processing of permit applications, not a permit requirement.
While the BEP was correct in that it is only the Commissioner who has the authority to rescind the permits, and their decision was not at all surprising, these proceedings served to highlight this mess of litigation that has dragged on for years and resulted in huge expenditures of time and resources to Upstream Watch and other intervenors, the City of Belfast, and state agency staff over a project that still does not have access to all of the land necessary to build the facility. We are once again left with frustration that these proceedings are a direct result of Nordic applying for permits on land that is not theirs. We are hopeful BEP members, though their limited authority may not allow them to act, came away sharing our frustration, too.
In contrast to the environmental permits and BEP decision, the Maine Bureau of Parks and Lands rescinded Nordic’s submerged lands and dredge leases as a result of the Mabee I decision.
In Mabee I, quiet title action, the Maine Supreme Court ruled Jeffrey Mabee and Judith Grace are the owners of a disputed parcel of intertidal land Nordic needs to run their discharge and intake pipes through. The Eckrotes, the owners at the time of the adjacent upland parcel, granted Nordic access to the intertidal land, however, the Court ruled that property rights of the upland and intertidal portions of the property had previously been severed, and the intertidal land is actually owned by Mabee and Grace. As a result of this decision, in May 2023, the appeal of the BEP awarded state environmental permits was remanded back to the BEP, and they were ordered to determine the impact of this decision and the fact that Nordic did not have TRI to the intertidal land, on the challenged permit approvals. These proceedings last Thursday sought to address this remand from the Court.
Upstream Watch plans to appeal this decision, and we remain committed to opposing Nordic Aquafarms’ proposal.