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 attornies 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.

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Second Battle for the Bay begins in Superior Court June 21st. Fierce fighting against salmon tankfarming menace in Belfast to reach critical point

Attorneys for two bay defender groups have joined forces in a combined effort to fend off invading Norwegian corporadoes threatening Belfast Bay.   From June 21-24 their case, the "Matter of Mabee and Grace v. Nordic Aquafarms, Inc" (14pg pdf), will be tried before Justice Robert E. Murray in Belfast Superior Court.

At the above link, read the conservationists' brief to Superior Court in Belfast 

At trial,  Plaintiffe Upstream Watch (“Upstream”), Plaintiffs Jeffrey Mabee and Judith Grace (“Mabee/Grace”), and Friends Of the Harriet L. Hartley Conservation Area (“Friends”) will prove that: 

(i) the easterly boundary of Janet and Richard Eckrotes’ (collectively, “Eckrotes”) [...] is the high water mark of Penobscot Bay; and

(ii) the intertidal land abutting the Morgan’s, 1 Eckrotes’, and Schweikerts’ upland was initially retained by Harriet L. Hartley at the time of the conveyance of upland to Fred Poor and then subsequently conveyed to William and Pauline Butler (collectively, “Butlers”) in 1950.  Mabee/Grace now own the intertidal land that adjoins their upland,  and the upland properties now owned by Morgan, the Eckrotes, and the Schweikerts. 2

NORDIC WILL RESPOND

Nordic will argue that: 

(i) the phrase “along high-water mark of Penobscot Bay” in the 1946 Hartley-to-Poor deed3 and the 1964 Bells-to-Grady deed is a “call to the water” that actually means the low water mark of Penobscot Bay which did not cause a severing of the upland from the intertidal flats; and

 (ii) the Eckrotes always understood that they owned the intertidal land on which their lot fronts. However, neither the Eckrotes nor Party-inInterest Morgan—whose waterfront boundary is primarily derived from the same Hartley-to-Poor deed—have proof of title to this intertidal land beyond the speculations and erroneous legal interpretations offered by Nordic, previously rejected by this Court in its June 4, 2020 Order denying Plaintiffs’ Motion for Partial Summary Judgment. 

We'll keep an eye on this fast moving fight.

Upstream Watch files appeal of Maine's okay of Nordic AQ's permits

 On December 16, 2020 environmental group Upstream Watch filed an 80-C appeal of a recent Maine Board of Environmental Protection's  approval  of water and air pollution permits  for Nordic Aquafarms.  (Read appeal below) The company has proposed  building a large land based salmon farm in Belfast, Maine that would  take in water from Penobscot Bay  and discharge treated fish wastewater back into the bay.  Below, read the  28 page Upstream Watch appeal, and separately its attachments (PDFs)

Upstream Watch 80-C Superior Court appeal 12/16/20  28 pages.

Attachment A 

Attachment B

Attachment C

Attachment D

Attachment E

Attachment Maps

DEP memo NAF May 20- 21, 2020

Attachment. Service letters

Two oppos to Nordic's salmon tankfarm detail BEP's flawed reasoning in letters to the editor.

Two letters to the editor that were published November 26, 2020, The first is by Amy Grant, President of Upstream Watch; the second by Belfast citizen Lawrence Reichard

1. Questions remain in Nordic permit process
Nordic Aquafarms’ permitting process with the Department of Environmental Protection is far from over. Board of Environmental Protection member Susan Lessard stated that “this isn’t a period at the end of a sentence but more like three dots.” Nordic has a very steep slope ahead of them to meet the multiple conditions the Department of Environmental Protection requested. Given the opportunity for appeals on many of the permit conditions, this process will drag on for years.

We look forward to getting this in front of a judge and will be filing our appeal in the coming days. The BEP has granted permits that were incomplete and instead is letting Nordic fill in the blanks after the fact. That approach is both illogical and illegal.

The DEP has asked for multiple conditions which would normally be required before permits get approved. Board members questioned the wisdom of applying conditions at the same time as issuing permits, but in the end all votes were unanimous without discussion, suggesting that the vote was predetermined.

At least 12 of the conditions on the site location of development application permit open the door for further appeals that require public hearings. Upstream is fortunate to have a strong science-based team in place to see this process through, however long that may take. Upstream will continue to stand with the need for much more conclusive data and clear answers before construction begins.

The law says that conditions can only be used for minor and easily fixable issues and they are not interchangeable with permit requirements. Permit conditions are allowed to assure compliance with the permit, not to qualify for a permit after the project is constructed. Nordic still has a lot of questions to answer.
By Amy Grant, President, Upstream Watch, Belfast

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2. The BEP's fatal flaws
Last week the Maine Board of Environmental Protection approved permits for Nordic Aquafarms' industrial fish farm.

In its decision, BEP ignored and violated many of its own rules and regulations by not requiring Nordic to perform legally mandated studies. Apparently the board is happy to fly blind with the future of Belfast Bay and the woods, wetlands and wildlife habitat Nordic seeks to destroy.

The BEP decision has at least two fatal flaws. Before it can even apply for BEP permits, Nordic must by law establish title, right and interest to all lands it intends to use, but BEP chose to completely ignore very substantial problems with Nordic's TRI. It's ludicrous to rule that Nordic has sufficient TRI while Nordic's TRI is being litigated in court — especially when a Maine court recently ruled that active litigation by definition obviates TRI. The BEP chose to utterly ignore this.

The second flaw is the question of Nordic's competence — or incompetence. As an official BEP intervenor who has repeatedly documented significant Nordic incompetencies, I was barred from addressing these incompetencies in my testimony.

This, too, is ludicrous. As city of Belfast attorney Bill Kelly has urged the Belfast Planning Board to do, the BEP focused exclusively on the viability of Nordic's design, not the company's ability to actually follow that design competently. That's like buying a perfectly viable new Ford and then handing the keys to your 4-year-old child.

Perhaps the worst of all this is that no BEP member lives in Belfast or Northport. Thus none of them will have to live with the consequences of allowing Nordic to daily spew at least 7.7 million gallons of effluent into Belfast Bay, to annually devour at least 630 million gallons of our freshwater, and to destroy our woods, wetlands, wildlife habitat and hiking trails.

With its Nordic decision, the BEP has failed to protect our environment and has failed the people of Maine — all for the sake of wealthy corporate executives and stockholders, and high-end consumers. Let's hope our courts don't follow suit.

By Lawrence Reichard, Belfast

BEP releases Nordic Aquafarms draft Final Order with red ink changes

On November 3, 2020, Maine Board of Environmental Protection released its amended final draft of its  MEPDES Pollution Permit and its Waste Discharge License. Here is the 5 page draft approval decision followed by 15 Special Conditions that the company must meet.

DRAFT Final  BEP  Order of Approval  5pgs 

DRAFT Order's  Special Conditions A thru O.

* A.  Effluent Limitations & Monitoring Requirements 2pgs  . 

* B. Narrative Effluent Limitations  C: Authorized Discharges, D: Notification Required  1pg

* E. Monitoring / Reporting. F: Dye Study 1pg 

* G: Ambient Water Quality Monitoring; H Operation & Maintenance Plan 4pgs  

*  I: Disease Control & J: Spills 3pgs

* K: Protection of Atlantic Salmon 3pgs

* L: Fish Feed; M: Reduced Waived Testing;  N: Commencement of Operations 1pg

* O: Reopening Of Permit For Modification; P: Severability 2pg 

END SPECIAL CONDITIONS

Opposition to Nordic Aquafarms' Belfast Maine proposal: Summary of Upstream Watch Argument

Below are two bits of the  legal brief submitted 5/4/20 to Maine DEP's Board of Environmental Protection opposing the Nordic Aquafarms  by grassroots ecodefenders Upstream Watch:  First a brief  introduction to what agencies  are involved and what laws they must follow. Second: a three part summary of their argument

INTERVENOR UPSTREAM WATCH’S 5/4/20 POST-HEARING BRIEF Re NAF
Read full 96 page brief here

INTRODUCTION"Intervenor Upstream Watch (“Upstream”) submits this Post-Hearing Brief to assist the Maine Board of Environmental Protection (“BEP”), the Maine Department of Environmental Protection (“DEP”), The Commissioner of Environmental Protection (the “Commissioner”) and the DEP Staff (“Staff”) to evaluate the applications of Nordic Aquafarms, Inc. submitted under the Maine Site Location of Development Act, (“SLODA”), the Maine Natural Resources Protection Act (“NRPA”), the Maine Pollution Discharge Elimination System (“MPDES”), and a Chapter 115 Air Emission License."

SUMMARY OF ARGUMENT.
The environmental effects of this huge, industrial fish processing facility are not benign as suggested by initial press releases. As the project developed, Upstream was alarmed by a consistent pattern of insufficient and misleading information issued by Nordic.

Three troubling themes consistently emerged:
(1) the selected site is unsuitable for the project;
(2) the application is fatally incomplete, and
(3) Nordic Aquafarm’s information, when provided, fails to meet the statutory and regulatory criteria.

(1) THE SELECTED SITE IS UNSUITABLE FOR THE PROJECT.
Nordic is trying to fit a large, square peg into a small, round hole by selecting an unsuitable site and trying to change the site’s basic character instead of seeking a suitable site. There is no better example of this than the Nordic’s soil replacement plan. Nordic selected a site that contains almost exclusively spongy clay soils (a situation that caused subsidence problems for the Nordic Aquafarms AS back in Norway). To address this problem, Nordic proposes to remove the natural soils over a 35-acre portion of the site to a depth of, to depths over 50-feet (SLODA Apl., Sect. 20, Text, p. 1-2) and after removing those soils, replace the clay with gravelly soils which would be more capable of supporting the proposed tanks. Upstream estimates this soil replacement project will require roughly 45,000 dump truck loads, necessitating extensive travel over state and local highways.

Moreover, the proposed site includes nineteen (19) wetlands, swamps, marshes, and nine (9) streams. Nordic proposes to reconstruct artificially one stream and destroy the remainder. In lieu of preservation or replication of the remaining natural resources set to be destroyed, the Nordic proposes to “compensate” for the environmental damage with cash.

This “pay to pollute” scheme is wholly unnecessary when there are other available and more suitable sites which would not require such a serious destruction of natural resources.

Given the extreme measures proposed to overcome unsuitable soils and the total destruction of wetlands, combined with the fact that virtually the entire site is mature forest that would be destroyed, and that the portion of Penobscot Bay that would receive Nordic’s wastewater is slow moving and shallow, it is clear the site is unsuitable for the project.

(2) THE APPLICATION IS FATALLY INCOMPLETE .
Upstream has tracked the Applicant’s submissions against the statutory and regulatory requirements and this review has demonstrated that Nordic’s application is woefully incomplete.

See Feb. 18, 2020 Comment Submitted by Mike Lannan regarding Nordic Aquafarms Technical Ability (tracking each statutory and regulatory requirement for the pending applications and whether Nordic has complied). A true copy of the Lannan matrix showing the incompleteness of Nordic’s filings is attached hereto as Exhibit A.

The burden is on Nordic to demonstrate compliance in its applications for permits. Even so, the DEP has patiently attempted to lead Nordic through the process, with letters and memos itemizing application submissions that required clarification and modeling performed with the Department’s expertise and expense. Despite this guidance, the Nordic application remains fatally incomplete.

Throughout the hearing, it was evident that Nordic had failed to provide certain required information for its permit applications, including but not limited to, financial capacity, the actual effects of wastewater discharge including far-field dilution, and onsite wildlife surveys.

(3) NORDIC FAILS TO MEET THE STAUTORY AND REGULATORY CRITERIA.
Nordic only partially addressed other regulatory requirements, perhaps in the hope that those requirements would be overlooked during the permitting process or that Nordic would be allowed to figure out how to comply with those sections of the regulations after the fact, as permit conditions. Nordic should not be allowed to evade meeting all filing requirements for its permit requests at this time.

The proposed project size is huge. Within the project footprint, one could fit Gillette Stadium, Fenway Park and two TD Gardens. A mistake on this application can have catastrophic environmental impacts.

Nordic has failed to address critical material requirements of the statutes and regulations, and as such, its application cannot be granted as a matter of law. All regulations and statutory requirements must be met as a precondition to the award of a permit. After-the-fact attempts at compliance is not only unlawful but constitutes an unreasonable and unacceptable risk.

This application “sets the bar” for all future aquaculture applications in the state of Maine. If the Board of Environmental Protection insists on complete compliance with applicable statutes and regulations and if the Applicant meets all statutory requirements, aquaculture entrepreneurs worldwide will note that Maine welcomes aquaculture but only aquaculture that is compliant with all legal requirements.

 END OF SUMMARY

Issues raised at the Feb 21, 2019 panel discussion in Camden on land based aquaculture

On Feb 21, 2019 a panel discussion on land based aquaculture & the health of  Penobscot  Bay was held in the Camden Public Library.  Panelists: Andrew Stevenson of Upstream Watch, Kathleen Thornton of Darling Center for Marine Sciences, and Belfast city councilor Eric Sanders. Link to audios of full meeting.

Below we have separated out from that meeting  the  statement and answers of  panelist Andrew Stevenson, a retired EPA regulator and member of NGO Upstream Watch.  If you've only time to listen to one, listen to Stevenson's response to Question 3

.
Opening Statement 3min

Q1. What are the benefits of the Nordic project 3min24sec.mp3

Q2. What are the problems with the Nordic Aqua Farms project? 4min21sec

Q3. What issues have not had enough attention? 8min22sec

Q&A session of all three panelists 15 minutes

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? 

Two NGOs petition for BEP review of Nordic Aquafarms, interested party status, public hearing.

Below read  petitions by two  organizations sent Maine Department of Environmental Protection in late November. The Maine Lobstering Union and Upsteam Watch asked to be recognized as interested parties regarding the Nordic Aquafarms application to build a salmon tankfarm in Belfast and discharge effluent into Belfast Bay.  They also requested that Maine Board of Environmental Protection take over review of the project and that a public hearing be held.

MLU Petition to Intervene 11/26/18

MLU Request for public hearing on Nordic application 11/26/128

Upstream Watch petition for Maine Board of Environmental Protection to assume Jurisdiction over NAF application 11/26/18

Upstream Watch Request for Public Hearing 11/26/18

Upstream Watch Petition for Interested Party Status 11/26/18

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