Nordic Aquafarms' alleged TRI challenged again LISTEN to testimonies of 3 attorneys before Maine Supreme Judicial Court in Sept 8th, 2-22

The furious legal fight that has so far fended off aggressive polluter-wannabee Nordic Aquafarms continues. 

Listen as each of the legal eagles soars then swoops to the attack.  From  ever awesome eco-lawyer  Kim Ervin Tucker, to her opponents that day: Nordic's hired legal guns:  David M. Kallin of Drummond Woodsum  and David Perkins of Curtis Thaxter (and their entourages). . Each recording starts with an intro

Intro and Attorney Kim Ervin Tucker speaking for shoreowners  Mabee-Grace, Friends and the Lobstering Representatives  6min 42sec

Atty David Perkins, Curtis Thaxter, pro Nordic,  8min41sec 

Atty David M. Kallinn  Drummond Woodsum   for Nordic  & QA 16min 

Atty Kim Tucker's Rebuttal 3min14sec   (to end of state recording)

Yes,  that tideland is what  Nordic's  wastewater and water intake pipelines must cross to reach Penobscot Bay.  The combination of  shorefolk and fishfolk and their legal team has been potent against the machinations of  Norwegian investors, their legal team and, regrettably, those Quisling types ever ready to bend the knee to Big Money, local or global.

Justices of Maine's Supreme Judicial Court.

Hon. Valerie Stanfill Chief Justice
Hon Rick E. Lawrence Associate Justice
Hon. Andrew M. Mead Associate Justice
Hon. Joseph M. Jabar Associate Justice
Hon. Andrew M. Horton Associate Justice
Hon. Catherine R. Connors Associate Justice
Hon. Rick E. Lawrence Associate Justice

Sierra Club UW attys 8/23/22 AUDIO on the Clean Water Act & how Maine DEP misuses state laws based on the CWA

On August 23rd 2022, Sierra Club held an online "Community Conversation" (links to audio below) featuring two veteran environmental attorneys, David Losee and Charlie Bering. 

Each  gave  online briefings on  the history  of the federal Clean Water Act, and how Maine DEP and its Board of Environmental Protection have developed strategies to get around the law when reviewing pollution permits sought by favored companies, for example, Nordic Aqua Farms.

Introduction by Jim Merkel, Sierra Club  5min   *  Spkr 1. David Losee 19min 20sec  *  .Spkr2  Charlie  Bering 23min 

Losee excerpt: How DEP/BEP  misuse state laws & rules to favor certain applicants & foil appellants 6min

Takeaways from their talks:  

1 This federal CWA and the state laws related to it  are adequate to the task: eliminating water pollution.  

2. Maine DEP and its Board of Environmental Protection are abusing the process:  The agency grants pollution licenses to favored applicants like Nordic Aquafarms  even when they know the applicant cannot meet required  pollution limits. How?   The discharger-wannabees must promise to meet the requirements  later, once their salmon tankfarm is operating at full capacity.

3. Maine's  Board of Environmental Protection likewise abuses the law. How?  By deciding not to review the whole pollution application  but just some parts of it.  Big Problem: the parts that BEP does NOT consider - cannot later be raised in a court appeal.  

For Example in Nordic's case, DEP and the Board of Environmetal "Protection" decided before the BEP hearing that, among other things, none of the  climate concerns raised (in detail by environmental attorneys would  even be considered in its review. This despite the state recently adopting the very Climate Goals and water quality goals that DEP and its Board decided to ignore.

In essence, exempting  Nordic aquafarm  from the Clean Water Act and such related state laws  as the Site Law  and NRPA.

Sigh.

Belfast harbor struggle: Court sets Aug 27th oral arguments on plaintiffs' charge of improper acts by Governor, staff & family.l

 DEP 80C Appeal: 8/27 Oral argument in the DEP case on my Motion to Amend

Justice Murray has scheduled a ONE HOUR oral argument, on 8/27 beg

inning at 3 p.m. on my motion to amend the 80C Petition to include independent claims relating to the due process violations resulting from the Mills’ Administration’s exertion of political pressure to influence the TRI determinations by BEP, DEP, BPL at the request of the Governor’s brother Peter and Peter DelGreco of Maine & Co. acting on NAF’s behalf and to promote the “burgeoning aquaculture industry”.  This motion and now argument was made possible by the FOAA responses that Lawrence and Paul doggedly dragged out of these agencies.  Time to connect the dots for Justice Murray.

The response filed by AAG Bensinger and Jensen, to my most recent filing of the supplemental documents that Paul got that the DEP, Reid and the Governor’s office withheld first from me and later even from Lawrence (altho he got more documents that I ever could), is based on the claim that none of these documents is in the record before the BEP so the political influence revealed is irrelevant because it did not influence the Board’s decision.  This is absurd of course because the only information that the Board did see was whatever Jerry Reid want them to see — nothing more.

The independent claims that need to be filed in this case are as much about what is not in the record, as what is in the record.  The issue is a simple "junk in-junk out” problem.  And the use of the same AAGs to represent DEP and BEP compound the problem and defeats the independence of the Board.  They even manipulated which board members could consider our TRI challenges — excluding Sue Lessard.

It would be helpful to my preparation to have a good summary relating to the exclusion of evidence from the record that others have endured, as well as the denial of the right to appeal to the full board that the Presiding Officer imposed later in the proceedings.  The dilution issue if one really good example that I am not well-versed in the details of — if someone could get me a good summary on this it would help..  I will work on a chronology relating to the sediment testing issue and the haul route for the dredge spoils. but these will be mentioned in passing — the focus will obviously be on the “non-trivial TRI issues” and the interference on that issue specifically — including excluding evidence submitted by Intervenors that was not included in the record, and the unappealable orders by the Presiding Officer.

Buckle up.  Winter is coming...

Maine Dredge Team Mtg 3/4/21 Update on Searsport Harbor, more

On March 4, 2021, the Maine Dredge Team  met via zoom and  discussed a variety of Maine dredging  project locations including Searsport, Blue Hill,  Surry,   Great Chebeague,  Kennebunk,  and Portsmouth. They also discussed related issues of disposal techniques and protection of eelgrass, including transitioning to conservation moorings  that elevate   lower mooring chains above the harbor floors. 

SEARSPORT  Listen here to the 8 minute discussion of Searsport Harbor's dredging plan, including its present status and  typed questions from Maine Lobstering Union's Kim Ervin Tucker  about safely dewatering the tainted spoils and about  incorporating findings from the Dawson Study into their planning 

BLUE HILL Harbor dredge plan  2min 25sec

SURRY (Patten Bay) 1min 47sec

GREAT CHEBEAGUE ISLAND  Part 1 3min5sec   Part 2 1min45sec

Nordic told by DEP: prove you have outfall pipe right of way into Penobscot Bay.

Maine DEP has reacted to the joint submission by Upstream Watch and Maine Lobstering Union challenging Nordic's application as fatally inaccurate by ordering Nordic to show otherwise. Can they?

The two NGOs had written  to the Board of Environmental that the Nordic application is  "fatally flawed and must be dismissed for lack of title, right or Interest (“TRI”). Nordic’s deficiencies in TRI are fatal and incurable ..."

Two of the points UW'S attorneys  David Losee and Kim Ervin Tucker are arguing: (that DEP finds credible - see below)

1. Nordic and DEP failed to include Northport in its review process despite the outfall pipe passing through several private Northport properties.

2. Nordic does not have permission from the Northport property owners whose land the pipeline would have to pass through.  Nor any right, title or interest in those properties.

Ergo, Uptream Watch observed, as Nordic cannot access Penobscot Bay with its pipelines, it cannot operate a land based aquaculture operation from the Belfast site. Therefore the application must be rejected.

DEP's  Brian Kavanah Acting Co-Director, Bureau of Water Quality wrote a terse letter  to Nordic Aquafarms  stating that 

" In light of recently received evidence that the Department has determined to be credible, the Department is requesting further information regarding 1) the location of the structures associated with the Nordic Aquafarms MEDPES application, including all portions of the outfall pipe from the proposed facility, and 2) the applicant’s title, right or interest (TRI) in the area proposed to be developed or used. The Department requests all such information be submitted no later than February 6, 2019." (end excerpt)

"Location of the structures" because Nordic has insisted it's all in Belfast, but the revised application shows  a goodly bit of the obligate pipeline locations  within Northport.  Makes it wrong for them to have moved ahead without including that town in the review .

"Title, right or interest (TRI)" because, lacking those, it cannot operate its proposed RAS salmon tankfarm.

What will Nordic's response be? 

Maine DEP acting chief recommends against citizen board review of Nordic Aquafarms plan.

Salmon tankfarm opponents are rightfully livid over Maine DEP's acting chief Melanie Loyzim's actions on the controversial salmon tank farm plans by Nordic Aquaculture proposed to discharge into Belfast Bay
Loyzim denied out of hand petitions from Maine Lobstering Union and Upstream Watch requesting (1) a public hearing and (2) intervenor status. She also declared there was little public interest or controversy, recommending against MLU's request that BEP assume jurisdiction of the review of the project its proposed outfall's proposed contents and its baywater intake.
Read MLU's and Upstream Watch petitions here
Loyzim used indefensible assertio.ns that there was no possible significance to the effluvia of up to 20 million fish per year in the proposed CAFO tanks - largest ever in the United States - discharging out a single pipeline into the bay 24/7. What could go wrong?

Raising and slaughtering up to 20 million fish per year at Nordic and Whole Oceans - one at each end of Penobscot Bay's estuary - is nothing special, Loyzim asserted in her letter to conservation attorney Kim Tucker. Just like any little existing fishfarm, Loyzim smirked, enjoying her brief moment of ecological vandalism at the helm of the disfunctional-under-Lepage agency.
One remembers the good old days of Late McKernan Early Angus King , early baldacci,  when the Board of Environmental Protection performed its duty and routinely heard  citizen appeals - I actually won a special condition added to MBNA's Ducktrap Mtn guest cottage rush job tht was sprawling into an important deer wintering area   No more cottages, BEP announced. How MBNA's VP Shane Flynn howled! 

Maine DMR presentation & QA on new mercury lobster closure 6/28/16. AUDIO

On June 28, 2016, Maine DMR held a meeting in Bucksport about the state's

Mendelson

new permanent closure of the lobster fishery of the mouth of Penobscot River and the SW tip of  Penobscot Bay. Attendees including lobstermen and environmentalists. Listen to meeting audio  Read details below the audio links.

 AUDIO MP3s

* Part 1 Intro by DMR asst commissioner Meredith Mendelson  6min 20sec

* Part 2 DMR's Carl Wilson giving audio- slide presentation. 9min 39sec

* Part 3  Mendelson summarizes 2min 38sec
* Q&A 1, Wayne Canning, Belfast Lobsterman, 6min 15sec
* Q&A 2 Kim Tucker 12min
* Q&A 3  5 min
* Q&A4. 6min 43sec Meeting End

Wilson

Presenters DMR deputy commissioner Meredith Mendelson and Carl Wilson director of DMR's Marine Science Bureau, gave presentations. 

They then took questions, along with state toxicologist Andy Smith .  

(DMR's FAQ on the new mercury closure)  

Wayne Canning (standing)

Zone D fisherman Wayne Canning of Belfast, eco-attorney Kim Ervin Tucker of Islesboro, Ron Huber of  Friends of Penobscot Bay and  others peppered the officials with questions.

Attorney Tucker challenged the state's methodology in arriving at locations of higher or lower levels of mercury contamination in the sediments and lobsters of the lower river and upper bay.

She also presented DMR with copies of  a new DEP permit allowing the Mallinkrodt company (owner of the property that is the chief source  of mercury in the river and bay.

Kim Ervin Tucker

The permit allows the company  to increase its discharge of mercury-tainted water into the river by 40,000 gallons per day.

 This  increases  the discharge from  the existing 60K gallons per day  to 100K gallons per day)

MORE TO COME(check back later)

Maine Dredge Team March 7, 2016 meetings Audio mp3s of the interagency meeting

Monday March 7th, the Maine Interagency Dredge Team met in Augusta. 

Listen to audio from the event.

Intro of Dredge team 4min 19sec |

Part 1 21 min |

Part 2 22min |

Part 3. 16min

Participants were there to discuss dredging projects underway and under consideration. This included the Searport Harbor expansion dredge project, as well as other harbors along the Maine coast.
The public was represented by eco-attorney Kim Ervin Tucker of Lincolnville Beach, Becky Bartovics, Maine Sierra Club, North Haven Island, and Ron Huber, Friends of Penobscot Bay, Rockland.   The meeting allowed public participation by speakerphone 

The dredge team included: 
Pete Tischbein, Army Corp Craig Martin, navigation section, ACOE Wendy ____ Army Corp of Engineers planning John Chelley Chief of planning, f Army Corps Mark Habel Corps new eng, navigation Ed O'Donnel chief navigation section and the ONF program Dennis Nault Maine DMR Rob Elder MDOT trade office Maine DEP ____ Green Paul Mercer, commissioner DEP Mark Bergeron on MDEP Maine Geological Survey Maine Port Authority - Dredge committee Patty Aho, Sen Collins office staffer, Sen Collins for York County Pingree staffer Portland Senator Angus King staffer Tom Dobbins Portland harbor commission Jim Katz Saco coastal waters chief Patrick Fox Saco Payne, Normandeau Associates Biddeford harbor commission Wells harbormaster & town manager
Also attending: Maine Lobstering Union members (3) Kim Tucker Lawyer for Maine Lobstering Union David Black, Belfast Zone D lobsterman

ABOUT THE MEETING

The meeting was frustrating for critics of the Searport harbor dredge plan (aerial photo) . Dredging officials told Tucker at first that they had absolutely no new information about when the withdrawn Searsport harbor expansion dredge project might be reactivated. She managed to pull a few things out of them, like the identity of the till-now army corps officials in DC are who will decide when the Sarsport : Tab Brown, Army Corp Chief of Policy Regarding the Big Gas plan, the Corp's <Edward.G.O'Donnell@nae02.usace.army.mil>, told Huber that they have not received any communications at all about natural gas pipelines coming down from Massachusetts to the Penobscot Bay coast (with all the stream & river crossings required by such pipelines etc, the Corp will be involved. Huber also brought up the failing condition of the surface of the Rockland Breakwater, which has reduced pedestrian travel to the Rockland Breakwater Lighthouse. He said that the Rockland Harbor Commission was concerned that if they complained, the Corps might shut off pedestrian access entirely. Corp official Ed O'Donnell asked Huber to forward him some details.

The meeting was frustrating for opponents of the Army Corps of Engineers massive dredge plan for Searsport harbor:  It seemed that  try as they might, it was near impossible to get details from the army corps staff there on when the "withdrawn" application would become active again.   Federal officials claimed to have no information! Check out this exchange between Kim Ervin Tucker and an Army Corps official 

Q: What is the time frame you're talking about resurrecting this during the course of 2016?
A. We don't know.
Q: Who in DC specifically are you working with, what office?
A. Planning and Policy.
Q: A specific person there involved in that ?
A. Not a specific person, but  Tab Brown is the chief of that.
Q: Was there anything in particular you all are looking at?  Pockmarks? What specifically is now being re-evaluated for that project?
A.We don't know yet
Q: When will you know?
A: laughs
Q: Before the next team meeting? Will there be some activity taken before the next dredge team meeting?
AThe corps and DOT have to do a lot of talking, before the half stretch.
Q Thank you. 

----------------------------------------

 To get notified about  future  Maine  dredge meetings  write to  Todd Burrowes  at the Maine coastal program <Todd.Burrowes@maine.gov and ask him to put you on the list.   Burrowes is the Maine Coastal Program's "Federal Consistency Coordinator", meaning he's the contact when fed permit-requiring projects - including dredging but also  shoreline development like  riprapping  & piers-  come up. Coastal program phone: (207) 287-3200.

Searsport Harbor Mega-dredge plan: Board of Enviro Protection to decide if it will take over state decisionmaking.

Searsport Harbor Super-Dredge/Dump Plan:
Will the Maine Board of Environmental Protection  take over  state decisionmaking on controversial plan for biggest Maine dredge project ever?

On July 16th the Maine Board of Environmental Protection (BEP) will hold a hearing on requests that it take over decisionmaking  about the Army Corps of Engineers application to dredge up nearly 900,000 cubic yards of sediments from outer Searsport Harbor and nearby Long Cove,then dump them  several miles away at a site between Belfast and Islesboro Island. The Board has four criteria for deciding; at least 3 must be met.

Below read links to the documents being supplied to the BEP by Commissioner Patty Aho about the  incredibly controversial Searsport Navigation Improvement Project.
More than 30 individuals and groups (including Friends of Penobscot Bay) are calling for the BEP to "assume jurisdiction" over the project.

Request for Board to take Jurisdiction. Staff: James Beyer, Bureau of Land Quality
* Staff Memo
* Criteria for Board Jurisdiction:  Excerpts from Statute and Rule
* Commissioner Aho’s June 24, 2015 Determination on Board Jurisdiction

Excerpts from the Application:
* Public Review Draft:  Environmental Assessment April 2013
* Searsport Harbor Federal Navigation Maintenance & Improvement Project:  April 2015 Update
* Letter from Town of Islesboro:  May 27, 2015 Request for Board Jurisdiction
* Islesboro Islands Trust:  June 1, 2015 Request for Board Jurisdiction
* Letter from Kim Ervin Tucker:  June 1, 2015 Request for Board Jurisdiction
* Additional Requests for Board Jurisdiction   (FOPB is on that list)