From a settlement proposal to new legal challenges, 2024 has been a busy year for Upstream Watch in our efforts against Nordic. Below is a summary of the significant happenings and outcomes from the past year.
Upstream Watch Proposes Settlement & Conservation of the Little River Ecosystem
At the beginning of 2024, Upstream Watch proposed a settlement offer to the City of Belfast and Nordic Aquafarms that would end all litigation, offer the City a number of economic and financial benefits, permanently protect the land surrounding the Little River and public access to that green space, and allow Nordic to recover some of their costs.
The offer included the following components:
Upstream will arrange for a non-profit to take over from the City the responsibility for improving and making safe the upper and lower Little River dams, and will lead the effort needed to raise funds and grants for the required work on the dams. This would relieve Belfast of the liability of two aging dams and the necessary capital improvements, saving Belfast at least $1,000,000 per dam.
Upstream will buy from Nordic all of Nordic’s land on the non-ocean side of Route 1 for cost, dollar for dollar.
Upstream will create a public park on the former Nordic land for the benefit of Belfast residents and others, at no expense of construction or maintenance to the City of Belfast.
Ultimately, a resolution with the City and Nordic was not reached, and litigation continues on, though we remain open to revisiting this settlement offer in the future. While we believe we will eventually prevail against Nordic, we know that as long as the Little River property is not permanently protected, this land will be faced with similar proposals that will put Penobscot Bay, the Little River and the Belfast community at risk.
Read more here for additional details on our settlement offer and vision for this land.
Belfast City Council Repeals Eminent Domain Taking of Intertidal Land
On May 7, 2024, the Belfast City Council voted unanimously to vacate and repeal their August 12, 2021, condemnation order that took intertidal land from Jeffrey Mabee and Judith Grace to provide access to Penobscot Bay for Nordic Aquafarms. This was one of the most significant milestones in our efforts against Nordic to date. Without access through this intertidal land, Nordic has no way to get their intake and discharge pipes into Penobscot Bay.
View of the intertidal land at the mouth of the Little River.
The Council took this action as a result of a remand order from the Law Court. That Court directed the City Council to "consider the new clarifications and determinations provided by the Law Court's resolution of Mabee I and decide whether to alter, amend, or vacate its condemnation decision in light of the new circumstances."
While we were hopeful that the City Council’s decision to vacate may have been the beginning of the end for Nordic in Belfast, Nordic filed a lawsuit on May 16th against the City of Belfast and the Belfast City Council for their decision, claiming that the condemnation order cannot be unilaterally revoked by the Council.
Appeal of Planning Board Permits Before the Belfast Zoning Board of Appeals
Upstream Watch’s appeal of the five permits issued by the Belfast Planning Board to Nordic began in January of this year and is still ongoing. Upstream Watch appealed these permits in 2020; the Zoning Board of Appeals (ZBA) dismissed our appeal on the grounds that Upstream Watch did not have standing. We challenged the ZBA's decision and ultimately, in August 2023, the Maine Supreme Court ruled we did have standing, and remanded the case back to the ZBA. Briefs were filed in January and February, and over the course of this year there have been 10 hearings before the ZBA.
Our attorneys made our case before the ZBA that not only was there insufficient evidence of title, right, and interest (TRI) to issue these permits, but the permits themselves have a number of substantive issues and they should be remanded back to the Planning Board. Based on preliminary discussions and votes by the ZBA, it is clear this Board is deferring to the original decision of the Planning Board and it is likely the final decision by the ZBA will not go our way. The ZBA has gotten decisions wrong in the past though (namely, when they denied to hear this appeal the first time on grounds of standing), and we are prepared to appeal their decision to Superior Court. A final decision by the ZBA is expected before the end of this year.
Upstream Watch's attorney, Dave Perkins, presents to the Zoning Board of Appeals.
Still outstanding is another appeal we have before the ZBA that they will hear once our current appeal concludes. Four of the five permits issued to Nordic by the Belfast Planning Board have seemingly expired and Upstream Watch requested the Belfast Code Enforcement Officer make a determination on these permits. The Code Enforcement Officer refused to make a determination and in response, Upstream Watch filed an application for administrative appeal of the Code Enforcement Officer's failure to make a determination on these permits to the ZBA.
Survey Confirms Belfast Municipal Boundary
In March, the Belfast City Council voted to engage in the perambulation process with Northport in order to delineate Belfast’s municipal boundary and approved a $5,000 expenditure to hire an independent surveyor. Ultimately, “perambulation” was not conducted as both municipalities acknowledged there is not actually any dispute over the municipal boundary; however a surveyor was hired – and paid for by Belfast – to delineate the Belfast and Northport boundaries from the lower Little River Dam into the Bay. The survey ultimately was believed to be necessary by Belfast to settle questions surrounding their municipal boundary, and whether their 2021 eminent domain taking took land outside of the City’s jurisdiction.
Surveyor Robert Yarumian II of Buxton, Maine was hired by Belfast; he presented his findings in October to the Belfast City Council, Northport Select Board, and the public. The results confirmed surveyor Don Richards’ 2019 boundary line, and that Belfast took land outside of their jurisdictional boundaries in the 2021 eminent domain taking.
While we believed this survey to be unnecessary and an additional waste of taxpayer money on the Nordic issue – the survey ultimately cost Belfast $12,000 – the results confirm that Belfast did take land beyond their jurisdiction, and it is our hope that this survey settles any questions surrounding the Belfast municipal boundary.
Upstream Watch Intervenes to Oppose Nordic's Attempt to Stay Discharge Permits
In June 2023, as a result of the Mabee I decision, the Department of Environmental Protection (DEP) Commissioner suspended some, but not all, of Nordic’s DEP issued permits. Nordic’s discharge permits were not suspended and therefore are still in effect, as is their expiration date of November 2025. These permits – like all discharge permits – have a five year term as required by the Clean Water Act. In June of this year, Nordic requested the Department modify the Commissioner's Suspension Order to include the their discharge permits on the same terms as the others; DEP declined this request.
In July, Nordic filed a new lawsuit requesting a motion to stay its discharge permits during the pendency of litigation challenging those permits. They also petitioned the Court to review and reverse DEP's June 2024 decision refusing to toll the expiration of these permits. With these filings, Nordic is attempting to keep their project alive and indefinitely keep their permits from expiring so long as litigation surrounding this project is ongoing.
On August 16, 2024, Upstream Watch intervened to oppose Nordic’s attempt to indefinitely stay their discharge permits. No entity should be able to indefinitely extend the life of their permits, especially when the circumstances surrounding those delays are a direct result of that entity’s own actions. If Nordic had not pursued licensing for a project on land they did not have title, right, or interest to, they would not be in this situation. While Nordic can apply to renew their permits, steps to renew must be taken before the discharge permits expire, and would require Nordic to prove it has “sufficient title, right and interest” to all of the property, which Nordic does not have over the intertidal land.