On Friday, August 16, 2024, Upstream Watch intervened to oppose Nordic’s attempt to indefinitely stay their discharge permits. And earlier this week, the Department of Environmental Protection (DEP) and Board of Environmental Protection (BEP) responded with filings opposing Nordic as well.
View of the intertidal land at the mouth of the Little River.
On July 29, 2024, Nordic filed a new lawsuit requesting a motion to stay its Maine Pollutant Discharge Elimination System (MEPDES) Permit and Waste Discharge License (WDL) 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. These permits have a five year term as required by the Clean Water Act, and are set to expire in November 2025.
In June 2023, as a result of the Mabee I decision, the DEP Commissioner suspended some, but not all, of Nordic’s DEP issued permits. The MEPDES/WDL Licenses were not suspended and therefore are still in effect, as is their expiration date. In June of 2024, Nordic requested the Department modify the Commissioner's Suspension Order to include the MEPDES/WDL Licenses on the same terms as the others; the Department declined this request.
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. This litigation though, has in part been a direct result of Nordic’s actions to apply for permits for a project on land they did not, and still do not, own.
The Upstream Watch filing states:
“Given that Nordic gambled on proceeding with a flawed license application, Nordic should not now be allowed to burden the Courts, the State, and the parties in interest with further litigation over Nordic’s suspended Licenses that are subject to expiration.”
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. The DEP filing states:
“Nordic also has the option to apply for a renewal of its MEPDES license before it expires, and if it were to file a complete renewal application, it could toll the expiration of its current license…Of course, Nordic may be eschewing a discussion of this obvious option because, as a result of Mabee I, it may not be able to demonstrate title, right, or interest in all of the property proposed for development for its project as currently proposed, and if it cannot, the application would be returned as incomplete.”
Upstream Watch's filing is included below.
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