The tidal flats adjacent to the Eckrote property at low tide (Source: Maine DEP/Ransom Consulting)
The tidal flats adjacent to the Eckrote property at low tide (Source: Maine DEP/Ransom Consulting)
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Maine Board of Environmental Protection will hold a deliberative session Wednesday, May 20, and Thursday, May 21, on applications by Nordic Aquafarms for four permits required for its proposed land-based salmon farm in Belfast.

The facility would produce 33,000 metric tons of Atlantic salmon to be sold in Northeast U.S. markets, where the majority of fresh salmon is imported today from Europe and South America. Nordic says this will help solve a supply shortage while reducing the industry’s carbon footprint.

Opponents argue that the project is the latest in a history of industrial developments that have left a legacy of pollution in Penobscot Bay.

The Board of Environmental Protection will be considering applications for a Maine Pollution Discharge Elimination System (wastewater) permit, Natural Resources Protection Act and Site Location and Development Act permits, and an air quality standards license.

The board assumed jurisdiction from the state Department of Environmental Protection last year and has final authority to issue the permits. Afer four days of hearings in February, the board issued 16 procedural orders based on motions from registered intervenors (largely opponents), setting the stage for a final ruling.

What will BEP be deliberating?

Wastewater

Nordic Aquafarms plans to filter the estimated 7.7 million gallons per day of wastewater going into Penobscot Bay to a greater degree than many other land-based aquaculture facilities, including Whole Oceans in Bucksport, which has been permitted to discharge much dirtier wastewater. But the water would still add 1,200 pounds of nitrogen to the bay per day, potentially disrupting the aquatic ecosystem and fisheries.

DEP staff, in a memo to the Board of Environmental Protection, said Nordic’s treatment plan meets licensing criteria in all areas except nitrogen, which they determined would degrade the environment. State statute, however, allows for consideration of social and economic benefits when a project doesn’t meet the legal standard, particularly when it uses best available practices and there is no precedent, all of which could be the case for Nordic Aquafarms.

Air

Emissions at the salmon farm would meet air quality standards for the minor source license Nordic is seeking, according to recommendations by DEP staff. Considerations included eight fuel-fired generators that would offset electricity from Central Maine Power during peak times, using up to 900,000 gallons of fuel per year.

Opponents challenged that emissions from construction, including vehicle exhaust and dust, should be considered. But the department issued an opinion that those would be hard to quantify, noting that an air emission license comes with a standard requirement to minimize emissions from construction.

Land

Site Location and Development Act and Natural Resources Protection Act permits cover the upland and coastal areas of a project. Considerations would include freshwater wells on the site and the potential for saltwater intrusion on wells of neighboring properties. Nordic expects to use roughly 1,000 gallons per minute of freshwater, from groundwater wells, surface water drawn from Little River reservoir and municipal water provided by Belfast Water District. Fresh water would be combined with a larger volume of salt water from the bay and circulated in the tanks where the fish would be grown. DEP staff recommended the board require a monitoring program for all three water sources.

Roughly 30 acres of the 54-acre site would be cleared for the development. Nordic has proposed to pay $760,000 as compensation for destruction of roughly 4.5 acres of wetlands. BEP will also consider a plan for streams that would be disrupted.

Nordic plans to bury a portion of a pipeline that would run between the salmon farm and Penobscot Bay — a cluster of two 20-inch intake pipes and a 36-inch discharge pipe. The work, which would occur in the mudflats visible at low tide and underwater beyond the low-tide line, would require removing 36,000 cubic yards of material from an area covering roughly 2.5 acres, with the trench reachng a depth of 10 feet in places. During construction the mud would be put on barges. A portion of it would be returned to the trenches after the pipes are laid. The rest would be dewatered and trucked from Searsport to a landfill.

Nordic has proposed techniques to limit the amount of sediment that is disturbed during construction.

Opponents say the company soft-pedaled the work — billing it as “excavation” rather than dredging — and at a March 2 Department of Marine Resources hearing presented a larger scope of work with major changes in construction techniques from what is described in the application accepted last year by DEP.

Intervenors who oppose the project believe the dredging would stir up sediment containing mercury contamination from the former HoltraChem chlor-alkali plant in Orrington, and that plans to dewater the mud before trucking it to a landfill would create a new pollution source.

Nordic has conducted soil tests that satisfied DEP, but opponents have challenged various aspects of how the tests were conducted. BEP denied a request by intervenors to have Nordic do the tests again using the standards of the Penobscot River Mercury Study, which documented elevated levels of mercury near the pipeline route. The board also denied a bid to require Nordic to get a second permit to dewater the dredge spoils, which intervenors said amount to a new source of pollution.

The company also noted that clean water standards will be considered as part of other pending federal applications.

DEP’s Bureau of Remediation and Waste Management supported Nordic’s methods and said the sediment removed from the construction site would actually reduce the amount of mercury in the coastal wetland.

Other factors

The lawsuits

A key question underlying the applications before BEP is whether Nordic Aquafarms has rights to use a stretch of intertidal land that would be crossed by its pipeline. While ownership is not the subject of its own permit, state statute requires an applicant to hold title, right and interest to all land connected to a permitted project.

Nordic appeared to nail this down early, securing an easement from waterfront landowners Janet and Richard Eckrote, but opponents subsequently found land records suggesting that the mudflats were severed from the upland in the 1940s. Nordic contends that the complaint is no more than an attempt to block the project and that the deeds and associated surveys are ambiguous enough to be interpreted in their favor.

Several ongoing court cases could clear the air and bend the outcome of the permitting process.

— Jeffrey Mabee and Judith Grace are seeking a declaratory judgment in Waldo County Superior Court to affirm their ownership of the intertidal land. Mabee and Grace own property two lots to the south of the Eckrotes and might own a panhandle of mudflats stretching up the coast. The Eckrotes and Nordic Aquafarms are defendants in the case, which is pending.

— Additionally, Mabee and Grace are suing the Eckrotes in federal court for slander of title. That case, initiated in September 2019, continues.

— Mabee and Grace, with Friends of Harriet L. Hartley, a conservation group named after the woman they believe retained the coastal flats in the 1940s, filed a complaint in Waldo County Superior Court last month against BEP and Nordic Aquafarms, appealing the board’s refusal to dismiss Nordic’s application for failure to show title, right and interest to the intertidal land.

The board has previously said the question of ownership is for the courts to decide. But the petitioners countered that the board’s job isn’t to determine who owns the land but whether Nordic, based on its application, has shown sufficient evidence of the right to use it. They say the company hasn’t.

In effect, the complaint alleges that DEP is not following its own rules.

Opponents additionally have been frustrated by the state’s presumption that Nordic has rights to the land by virtue of having claimed it first. That claim probably has been bolstered by the unusual counterclaim — that the intertidal land of a waterfront property is actually owned by neighbors two houses away.

State regulators have said that any permit or license issued to Nordic would be contingent upon the outcome of the court cases.

Attorney Kim Tucker, in her appeal, said that by deferring to the courts the board has effectively shifted the burden of proof to the petitioners.

DEP pressed Nordic for clarification of its land rights in the intertidal zone in May 2019. The company’s attorney responded that the administrative standard for title, right and interest is a “low bar” and that Maine Supreme Court and Superior Court have ruled that an easement purchase option, like the one between Nordic and the Eckrotes, “confers sufficient right, title and interest for administrative review.”

The Facebook post

On May 1, Nordic Aquafarms posted an article and cryptic message to its Facebook page that led to speculation that the company might pull out of Maine. In the article, from fishfarmingexpert.com, Erik Heim, the founder and president of Nordic Aquafarms, said Maine “is essentially in competition with California,” where Nordic is in permitting for a similar land-based salmon farm. Heim said Nordic remains committed to both locations but said, “investment priority with regards to timelines and phasing in both locations will be subject to further consideration this year.”

The California project, planned for a former sawmill site in the Humboldt County town of Eureka, has been held up by some Belfast opponents as a better plan because it makes use of a former industrial site and would discharge wastewater into the ocean rather than the relative confines of a bay.

In an email to The Free Press, Nordic Aquafarms Commercial Director Marianne Naess said the company hasn’t changed its plans for Belfast.

“All of Nordic’s resources in the U.S. are currently based in Maine except one project manager who is based in Humboldt,” she said. “Due to the long processing time for our Belfast permits, our Maine resources have the capacity to work on our California project for the time being. . . . Nordic has always said that Belfast is the best location for our facility. That has not changed and we are not looking at other sites in Maine.”

The competing proposal

In March, Friends of Harriet L. Hartley applied for a submerged lands lease to create a conservation area on the same swath of bay floor where Nordic plans to run its pipeline. Nordic was first to apply for a lease but the Friends, as holders of a conservation easement, created by Jeffrey Mabee and Judith Grace in April 2019 to protect the contested mudflats from development, believe Nordic’s submerged lands lease application is invalid because the company doesn’t have rights to all land related to the pipeline as state law requires. The Bureau of Parks and Lands rejected the Friends application on grounds that Nordic has a pending application and the state can’t lease the same piece of land to two parties. “If it is determined that NAF lacks sufficient title, right, or interest for its submerged lands lease application, or if NAF is denied any necessary permits or otherwise chooses not to, the bureau would consider [the Friends’] application . . .” Director Andy Cutko wrote in the denial letter.