The Maine Department of Environmental Protection (DEP) and staff of the Board of Environmental Protection (BEP or “Board”) are recommending that the Board revoke Chapter 2 of the DEP rules governing how it processes permit applications.

At its upcoming December 7 meeting BEP proposes to “update” Chapter 2 of the rules by changing the definition of the term, “abutter.” This is an alarming wake-up call to property owners throughout the state because its implications extend far beyond my organization’s fight with Nordic Aquafarms. 

As our attorney, Kim Ervin Tucker, described it: “The definition of ‘abutter’ proposed by BEP can only be perceived as an effort by the Board and the Department of Environmental Protection to limit the standing and ability of anyone to file a challenge if they believe their property might be devalued or degraded by a proposed development.” 

BEP and DEP want to change the rules to limit the number of landowners that must be notified when an industrial or commercial project comes to town, to eliminate the requirement to serve notice to abutters by certified mail, and to effectively limit the number of citizens and groups that can legally challenge such projects during the permitting process. The new definition is much narrower than the current one and more restricted than the definition of “abutter” adopted by Maine’s Supreme Judicial Court to establish individual and organizational “standing” in regulatory and legal actions. 

BEP wants to cut everyone out of the public notice process except landowners on the boundaries of a project. 

Here’s the definition DEP and BEP use now: “’Abutter’ for the purposes of the notice provisions of this rule, means a person who owns property that both (1) adjoins and (2) is within 1 mile of the delineated project boundary, including owners of property directly across a public or private right of way.” 

And here is the definition they want to use: “’Abutter’ means a person who owns property that is contiguous with the property on which a project requiring a license from the Department is proposed.” 

If BEP adopts the proposed definition, it will severely limit the ability of Mainers to defend their constitutionally protected property rights. Had BEP and DEP used the proposed definition when Nordic Aquafarms, Inc. decided to build a 900,000 square foot salmon-raising factory in Belfast, landowners Jeffrey Mabee and Judith Grace would not have received notice. 

Their property is across Route 1 from the Nordic site but DEP refused to acknowledge they owned the intertidal land Nordic needed for pipelines in and out of the factory. It took four years of litigation all the way to the Maine Supreme Judicial Court to confirm their ownership and validate the conservation easement they gave to us. 

The proposed definition should be rejected, and the existing definition expanded to mirror the Law Court’s prior precedents. Not only that, the changes in the requirements for notice to abutters should be rejected as well. 

Cynically, BEP staff calls their proposal just a set “routine technical” changes – no doubt an attempt to shield the action from legislative scrutiny and to avoid discussing the legal consequences of trying to choke off public participation in DEP and BEP proceedings. It excludes even a red-lined, “Before” and “After” comparison of the two alternatives. 

So much for transparency and accountability. 

Andrew Stevenson is a Belfast resident and Secretary for the Friends of Harriet L. Hartley Conservation Area (HLH), the group that holds an easement on the intertidal lands owned by Jeffrey Mabee and Judith Grace. Mabee-Grace and HLH are currently defending that easement against the City of Belfast’s use of its eminent domain power to seize the land and allow Nordic Aquafarms to build pipelines through it.