MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 90
Docket: BCD-25-337
Argued: March 3, 2026
Decided: August 18, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, DOUGLAS, and LIPEZ, JJ., and HJELM, A.R.J.
FRIENDS OF EASTERN BAY
v.
DEPARTMENT OF MARINE RESOURCES et al.
DOUGLAS, J.
[¶1] In October 2024, the Commissioner of the Maine Department of
Marine Resources granted Acadia Aqua Farms’ application for a twenty-year
aquaculture lease of 19.71 acres in the coastal waters of Eastern Bay off Mount
Desert Island for the cultivation of blue mussels and other shellfish. Friends of
Eastern Bay, one of the intervenors in the proceeding before the Department,
appeals from a judgment entered in the Business and Consumer Docket
(McKeon, J.) affirming the Commissioner’s decision granting Acadia’s
application for the lease. We affirm the judgment.
2
I. BACKGROUND
[¶2] In November 2019, Acadia applied for a twenty-year standard
aquaculture lease1 of 48.11 acres of coastal water in Eastern Bay, located in an
area approximately 1,000 feet from shore southwest of Googins Ledge in the
town of Bar Harbor. Acadia proposed to culture blue mussels using a floating
pipe system at the water’s surface with nets hanging down in the water column
to collect blue mussel seed. The mussel seed would be harvested using
specially designed machinery that is lowered over the collection netting to
remove the seed with a brushing mechanism. The harvesting machine uses a
hydraulic system to then pump the seed into a seventy-four-foot transport
vessel.
[¶3] Acadia intends to use the harvesting machine seasonally, from May
to October, for up to a total of three weeks during those months. When not in
use, the machine would be stored on a twenty-foot-by-twenty-foot floating raft
permanently moored within the lease site. During the off-season, the
harvesting machine may be removed from the lease site. Acadia personnel
1 The Department is authorized to issue a standard aquaculture lease for a renewable term of up
to twenty years for an area of up to 100 acres. 12 M.R.S. § 6072(2), (12) (2026). Other types of aquaculture leases authorized by Title 12 include leases for commercial or scientific research, 12 M.R.S. § 6072-A (2026), emergency aquaculture leases for shellfish, 12 M.R.S. § 6072-B (2026), and other limited-purpose aquaculture leases, 12 M.R.S. § 6072-C (2026).
3
would be on the site daily or weekly to perform routine maintenance, which
would involve use of the transport vessel’s hydraulic system along with power
washers and graders.
[¶4] The Department deemed Acadia’s application complete on
February 13, 2020, and a hearing was ultimately scheduled for March 2022. See
13-188 C.M.R. ch. 2, §§ 2.08(5)-(6), 2.15(1)-(3) (effective April 1, 2019).
Friends applied for and was granted intervenor status in the proceeding, as
were Alynn and Frances Seymour on behalf of riparian landowners. See 13-188
C.M.R. ch. 2, § 2.20.
[¶5] The Department held a public hearing on Acadia’s lease application
on March 28 and 29, 2022. See 13-188 C.M.R. ch. 2, § 2.30. At the hearing,
representatives from Acadia, the Department of Marine Resources, the
intervenors, and members of the public presented testimony and evidence. See
13-188 C.M.R. ch. 2, § 2.31(4)-(5). Representatives from Acadia testified about
the use and storage of the harvesting machine and about measures to be taken
to mitigate noise generated from its aquaculture operations. The intervenors
submitted over eighty exhibits and called employees of the Mount Desert Island
Biological Lab as witnesses to testify about the potential impact of noise
generated by Acadia’s operations on the integrity of the Lab’s research, some of 4
which involves sound-sensitive animals and instruments. Parties and members
of the public were permitted to cross-examine witnesses. Acadia and the
intervenors submitted written closing arguments and rebuttals. See 13-188
C.M.R. ch. 2, § 2.31(6)(A).
[¶6] On October 2, 2024, the Commissioner issued a comprehensive,
seventy-three page written decision approving Acadia’s application and leasing
waters for a twenty-year term, but only for 19.71 acres (reduced from the
original request for 48.11 acres) and subject to a number of conditions.2 See
13-188 C.M.R. ch. 2, § 2.37.
2 The lease conditions included the following:
(1) The lease holder is required to submit a sworn statement and photographs
demonstrating that the hydraulic drive system on the Stewardship [the transport
vessel] has been upgraded. Such documentation needs to also indicate whether the
installation was accommodated safely and if not, demonstrate that the John Deer[e]
hydraulic drive system has been muffled with a hospital grade cowl muffler. Written
authorization must be granted by DMR prior to the vessel being used within the
boundaries of the proposed site to verify the upgrades have been made.
(2) All power washing equipment must be located within the hull of the Stewardship.
(3) Any structure moored within the boundaries of the proposed site must be flat in
color and must be gray, black, brown, blue, or green in hue.
(4) Conditions 2 and 3 may be re-evaluated via the lease amendment process.
(5) Lobster fishing is permitted within the boundaries of the lease site.
See 13-188 C.M.R. ch. 2, § 2.37(B); 12 M.R.S. § 6072(7-B). Conditions 1 and 2 were imposed to mitigate potential noise impacts from Acadia’s operations.
5
[¶7] Friends filed a Rule 80C petition in the Superior Court (Kennebec
County) on October 31, 2024. M.R. Civ. P. 80C(a). The case was transferred to
the Business and Consumer Docket on January 7, 2025. The court heard oral
arguments on May 28, 2025, and entered a judgment affirming the
Commissioner’s decision on June 30, 2025. Friends timely appealed the
judgment. See M.R. App. P. 2B(c)(1); M.R. Civ. P. 80C(m); 5 M.R.S. § 11008(1)
(2026).
II. DISCUSSION
[¶8] Friends advances three principal arguments in this appeal: first, that
the Commissioner of the Department of Marine Resources lacked statutory
authority to grant Acadia’s application for the aquaculture lease; second, that
the Commissioner erred in determining that Acadia’s operations will not result
in unreasonable impacts or unreasonable noise at the boundaries of the lease
site; and third, that the Department erred by not treating Acadia’s lease
application as a “discharge application” subject to review and permitting by
another state agency, the Department of Environmental Protection (DEP). We
address each argument in turn.
6
A. Authority of the Commissioner of the Department of Marine
Resources to Grant Acadia’s Application for an Aquaculture Lease
[¶9] In challenging the Commissioner’s statutory authority to grant
Acadia’s application, Friends makes two interrelated arguments. First, Friends
argues that the Commissioner exceeded his leasing authority in Title 12 by
approving an aquaculture operation that uses a permanently moored storage
raft “for the sole purpose of warehousing unused equipment,” because, Friends
maintains, the use of the raft “is not ‘aquaculture.’” Second, Friends contends
that the “jurisdiction” to approve the storage raft does not lie with the
Department of Marine Resources but rather is shared between DEP pursuant
to its permitting authority under the Natural Resources Protection Act (NRPA),
38 M.R.S. §§ 480-A to -480-JJ (2026), and the Bureau of Parks and Lands (BPL)
pursuant to its leasing authority under 12 M.R.S. § 1862(2) (2026) with respect
to submerged lands.
[¶10] We review de novo a challenge to an agency’s interpretation of the
statute it administers to determine first whether the statute’s language is
unambiguous. E. Me. Conservation Initiative v. Bd. of Env’t Prot., 2025 ME 35,
¶ 22, 334 A.3d 706. If the language is unambiguous, its plain meaning controls.
Id. Otherwise, we “defer to the interpretation of a statutory scheme by the
agency charged with its implementation as long as the agency’s construction is
7
reasonable.” Id. (quotation marks omitted). Our deference recognizes that
state agencies generally possess programmatic expertise to inform their
implementation of the statute in areas that the Legislature has charged them
with administering. See Off. of the Pub. Advoc. v. Pub. Util. Comm’n, 2023 ME 77,
¶ 9, 306 A.3d 633; Watts v. Bd. of Env’t Prot., 2014 ME 91, ¶ 5, 97 A.3d 115.
[¶11] The Legislature has vested the Commissioner of the Department
of Marine Resources with the exclusive authority to “lease areas in, on and
under the coastal waters, including the public lands beneath those waters . . .
for aquaculture of marine organisms.” 12 M.R.S. § 6072(1) (2026). A lease
permits the lessee to engage in aquaculture operations, which entail “the
culture or husbandry of marine organisms,” 12 M.R.S. § 6001(1) (2026),
including operations “for the suspended culture” of marine organisms, which
inherently involves the use of floating gear and equipment, see 12 M.R.S.
§ 6072(1-A) (providing that “it is unlawful for a person who does not have a
lease issued by the commissioner under this section to construct or operate in
the coastal waters of the State a facility . . . for the suspended culture of any
other marine organism” (emphasis added)).
[¶12] The regulatory framework established by the Legislature confirms
the Commissioner’s authority to approve Acadia’s application for a lease with 8
its floating-raft component. Section 6072(7-A) prescribes eight general
conditions that the Commissioner must ensure are met in evaluating lease
applications 3 and requires the Department to adopt rules delineating specific
criteria for determining whether these conditions are met. See id. § 6072(7-A)
(“In evaluating the proposed lease, the commissioner . . . may grant the lease if
the proposed lease meets the following conditions [contained in section
6072(7-A)(A)-(H)] as defined by rule.” (emphasis added)). As relevant here,
3 The conditions set out in section 6072(7-A) that the Commissioner must ensure compliance
with are as follows:
A. The lease will not unreasonably interfere with the ingress and egress of riparian
owners.
B. The lease will not unreasonably interfere with navigation.
C. The lease will not unreasonably interfere with fishing or other uses of the area . . . .
D. The lease will not unreasonably interfere with significant wildlife habitat and
marine habitat or with the ability of the lease site and surrounding marine and upland
areas to support existing ecologically significant flora and fauna.
E. The applicant has demonstrated that there is an available source of organisms to
be cultured for the lease site.
F. The lease does not unreasonably interfere with public use or enjoyment within
1,000 feet of a beach, park or docking facility owned by the Federal Government, the
State Government or a municipal governmental agency or certain conserved lands . .
G. The lease will not result in unreasonable impact from noise or light at the boundaries
of the lease site.
H. Upon the implementation of rules, the lease must be in compliance with visual
impact criteria adopted by the commissioner relating to color, height, shape and
mass.
12 M.R.S. § 6072(7-A)(A)-(H) (emphasis added).
9
section 6072(7-A) specifically mandates that “[t]he commissioner . . . adopt
rules to establish noise, light and visual impact criteria under paragraphs G and
H, which are major substantive rules as defined in Title 5, Chapter 375,
subchapter 2-A.” Id. (emphasis added). Major substantive rules are not only
“subject to an increased level of rulemaking requirements,” 5 M.R.S. § 8072
(2026), but also must be “submit[ted] . . . to the Legislature for review and
authorization”; they are effective “only after review by the Legislature followed
by final adoption by the agency,” id. § 8072(1).
[¶13] As required by section 6072(7-A), the Department adopted, with
legislative endorsement, rules establishing noise, light, and visual impact
criteria applicable to floating structures used in aquaculture operations. See
13 188 C.M.R. ch. 2, § 2.37(1)(A)(8)-(10). For example, the rules establishing
lighting criteria “apply to all exterior lighting used on buildings, equipment, and
vessels permanently moored or routinely used at all aquaculture facilities.”
13-188 C.M.R. ch. 2, § 2.37(1)(A)(8) (emphasis added). Rules establishing
visual impact criteria “appl[y] to all equipment, buildings, and watercraft used
at an aquaculture facility, excluding watercraft not permanently moored
[there]” and impose a twenty-foot height limit on “[a]ll buildings, vessels, 10
barges, and structures” at aquaculture lease sites.4 13-188 C.M.R. ch. 2,
§ 2.37(1)(A)(10).
[¶14] Thus, the Commissioner’s approval of Acadia’s lease is consistent
with his authority under section 6072 and the legislatively endorsed regulatory
framework reflected in the Department’s rules. As the record establishes, the
raft plays an integral part in Acadia’s planned aquaculture operations.5
Moreover, the raft structure itself meets all applicable criteria under the
governing statute and the Department’s rules.6 12 M.R.S. § 6072(7-A); 13-188
4 We note that the application for a standard aquaculture lease has a section entitled, “On-Site
Support Structures.” There, the applicant is required to “[d]escribe structures such as barges, sheds, etc., to be located on-site” and to “[p]rovide a schematic and indicate the dimensions [of the structures], including height above sea level.”
5The harvesting machine itself is equipment that Acadia plans to use in the “husbandry of marine organisms” and that must be stored when not in operation. A representative from Acadia testified that it was “also looking at whether [it] can make the harvest machine easier to launch and retrieve so that it’s only on the water for the few weeks that [Acadia] need[s] to harvest, but that’s relatively tricky because it’s a large machine and [Acadia’s] boom truck crane can’t take it.” The size of the harvest machine necessitates storage on the lease site when not in use during the six-month season from May to October. The contention that the raft is not part of Acadia’s aquacultural operation because it merely “warehouse[s] unused equipment” is contrary not only to the record but also to common sense. It is tantamount to suggesting that a barn housing farm equipment that is not in use is not part of a farming operation.
6 The Commissioner found, and the record supports, that the raft was “in compliance with visual impact criteria adopted by the commissioner relating to color, height, shape and mass.” 12 M.R.S. § 6072(7-A)(H). The height of the raft would be 1.5 feet above the waterline; the height of the harvest machine, when submerged and in use, would be approximately five feet above the waterline; and together, when the machine was not in use but stored on the raft, they would have a total height of approximately 13.5 feet above the waterline. This complied with the height requirements in the Department’s rules. See 13-188 C.M.R. ch. 2, § 2.37(1)(A)(10). And the Commissioner further found that “[w]hether or not the applicant decides to move the harvesting machine during [the] time when it is not in active use would not impact [the Commissioner’s] analysis, as under either operation, the machine complies with the visual impact rules.” See id.
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C.M.R. ch. 2, § 2.37(1)(A). Accordingly, we reject Friends’ argument that the
Commissioner lacked authority under Title 12 to grant Acadia’s aquaculture
lease application.
[¶15] We also reject the argument that DEP’s permitting authority under
NRPA or BPL’s authority to lease submerged lands preempts the
Commissioner’s authority to grant Acadia’s application. NRPA simply does not
apply here:
A [NRPA] permit is not required . . . if the activity takes place solely
in the area specified below:
(10) Aquaculture. Aquaculture activities regulated by the
Department of Marine Resources under Title 12, section 6072,
6072-A, 6072-B, or 6072-C. Ancillary activities, including but not
limited to, building or altering docks or filling of wetlands, are not
exempt from the provisions of this article . . . .”
38 M.R.S. § 480-Q(10) (2026) (emphasis added). Friends asserts that Acadia’s
proposed use of a floating storage raft falls within the scope of “ancillary
activities” and not “aquaculture activities” because the raft “is not necessary for
or even directly used as a part of the culture or husbandry of marine
organisms.” As just discussed, the record plainly contradicts this assertion; the 12
raft is directly related to, and an important component of, Acadia’s aquaculture
operations.7 See supra n.5.
[¶16] Likewise, BPL’s leasing authority over submerged lands pursuant
to 12 M.R.S. § 1862(2) does not apply. Section 1862(10) provides: “A lease for
the use of lands under this section is not required for the development and
7Friends also relies upon section 480-Q(10)’s reference to “altering docks” to argue that Acadia’s storage raft, which Friends characterizes as a “floating dock,” is an “ancillary activit[y]” under that section and therefore excluded from the NRPA aquaculture exemption. This argument, too, is unpersuasive. Section 480-Q(10) refers to a “dock,” not a “floating dock”; the Legislature knew how to distinguish between these two terms, even within NRPA itself. Compare 38 M.R.S. § 480-Q(2-B) (exempting replacement of “floating docks” from the requirement of a NRPA permit if not exceeding the dimensions of the original) with id. § 480-Q(10) (excluding the “building or altering of docks” from the aquaculture exemption from the NRPA permitting requirement). Although neither term is defined in NRPA, a “dock” is included among the structures in the statute’s definition of “[p]ermanent structure,” and as such is clearly distinguished from the floating raft that Acadia contemplates here. See 38 M.R.S. § 480-B(7) (2026) (defining “[p]ermanent structure” as “any structure that is designed to remain at or that is constructed or erected with a fixed location or that is attached to a structure with a fixed location for a period exceeding 7 months within any 12-month period, including, but not limited to, causeways, piers, docks, concrete slabs, piles, marinas, retaining walls and buildings”). And although the word “dock” itself is undefined in NRPA, it is commonly understood to mean “a structure extending alongshore or out from the shore into a body of water, to which boats may be moored,” Dock, New Oxford American Dictionary (3d ed. 2010); in other words, a structure that is affixed to land. Friends further attempts to enlist our decision in Uliano v. Bd. of Env’t Prot., 2009 ME 89, 977 A.2d 400, in support of the argument that a NRPA permit is required, noting that the case “expressly applied to a dock proposed in Eastern Bay—the very same water body that is the subject of [the Commissioner’s] [d]ecision.” Uliano is inapt; it involved construction of a land-connected, private pier, not a raft floating hundreds of feet offshore. Uliano, 2009 ME 89, ¶ 4, 977 A.2d 400. Finally, Friends asserts that the Commissioner of Marine Resources is owed no deference in determining what activities are “ancillary” within the meaning of 38 M.R.S. § 480-Q(10) or 12 M.R.S. § 1862(10) because the Department of Marine Resources does not administer these statutes. This argument falls short as well. It is true that the Department of Marine Resources does not administer DEP’s or BPL’s programs. As noted above, however, both statutes expressly exempt “[a]quaculture activities regulated by the Department of Marine Resources under Title 12, section 6072” and “any aquaculture . . . [performed under] lease from the Commissioner of Marine Resources under section 6072.” See 38 M.R.S. § 480-Q(10); 12 M.R.S. § 1862(10). The Department of Marine Resources does administer Title 12’s aquaculture leasing statute and is intimately familiar with the aquaculture industry. The Commissioner, therefore, is accorded deference in administering the requirements of the aquaculture leasing statute, and here his consideration of the storage raft as part of Acadia’s aquaculture activities and operation is amply supported by the record.
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operation of any aquaculture facility if the owner or operator has obtained a
lease from the Commissioner of Marine Resources under section 6072.” Id.
§ 1862(10) (emphasis added). Section 1862(10)’s aquaculture exemption is
limited—it provides that “[a]ncillary equipment and facilities permanently
occupying submerged lands on the lease site and not explicitly included in the
lease granted by the Commissioner of Marine Resources are not exempt.” Still,
Acadia’s proposed storage raft is not “ancillary equipment or [an ancillary]
facilit[y],” id., but even if it were, it is explicitly permitted as part of the
Commissioner’s aquaculture lease to Acadia.
B. Lease Impacts on “Other Uses in the Area” and “Noise at the
Boundaries of the Lease Site”
[¶17] Friends next contends that Acadia failed to demonstrate that its
proposed aquaculture operations will not unreasonably interfere with other
uses of the area, as required by 12 M.R.S. § 6072(7-A)(C), and will not result in
unreasonable impacts from noise at the boundaries of the lease site, as required
by 12 M.R.S. § 6072(7-A)(G); that the Commissioner incorrectly interpreted
and applied the statutory standards; and that the Commissioner’s findings
otherwise were unsupported by substantial evidence and are an abuse of
discretion.
14
[¶18] In an appeal from a judgment on a Rule 80C petition, “we review
the underlying administrative agency decision directly for abuse of discretion,
errors of law, or findings unsupported by substantial evidence in the record.”
Maquoit Bay, LLC v. Dep’t of Marine Res., 2022 ME 19, ¶ 5, 271 A.3d 1183. We
do not “substitute our judgment for that of the agency and will affirm findings
of fact if they are supported by substantial evidence in the record.” Ouellette v.
Saco River Corridor Comm’n, 2022 ME 42, ¶ 20, 278 A.3d 1183 (quotation marks
omitted). We do not independently weigh the merits of the evidence and “will
affirm the agency’s findings even if the record contains inconsistent evidence
or evidence contrary to the result reached by the agency.” Id. (quotation marks
omitted); see Friends of Lincoln Lakes v. Bd. of Env’t Prot., 2010 ME 18, ¶ 13, 989
A.2d 1128.
[¶19] We first address the challenge to the Commissioner’s construction
of section 6072(7-A)(C). The Commissioner initially determined that the
research programs conducted by the Lab were “beyond the scope of ‘other uses
of the area’ as that phrase [is] used in 12 M.R.S.[] § 6072(7-A)(C) when read in
the context of the rest of the statute.” Friends argues that the Commissioner
erred by limiting the scope of “other uses in the area” to other water-related
uses, and not including land-based uses.
15
[¶20] Here, however, we need not reach that issue because, despite his
conclusion to the contrary, the Commissioner considered and evaluated the
evidence concerning potential noise impacts on the Lab and determined that
Acadia’s proposed lease operations would not unreasonably interfere with the
Lab’s activities. Thus, we assume for purposes of this opinion that the Lab’s
operations, including its research programs, constitute an “other use in the
area” in 12 M.R.S. § 6072(7-A)(C) and review the Commissioner’s findings to
determine whether they are supported by substantial record evidence.
See infra ¶¶ 25-27, 29-30.
[¶21] Before doing so, we turn to the other challenge to the
Commissioner’s interpretation of section 6072 that Friends brings, namely that
the Commissioner erred in construing the unreasonable-noise-impact
condition in section 6072(7-A)(G) to mean that Acadia was required to
demonstrate only satisfactory noise mitigation measures and did not need to
present evidence of what particular decibel levels of noise would be generated
by its operations. Again, we look first at the language of the statute to
determine whether or not it is unambiguous and if not, give deference to the
agency's interpretation if its interpretation is reasonable. See Snakeroot Solar, 16
LLC v. Pub. Utilities Comm’n, 2025 ME 64, ¶ 26, 340 A.3d 99; E. Me. Conservation
Initiative, 2025 ME 35, ¶ 22, 334 A.3d 706.
[¶22] Section 6072(7-A)(G) requires, as a condition for granting an
aquaculture lease, that the Commissioner determine that “[t]he lease will not
result in unreasonable impact from noise or light at the boundaries of the lease
site.” The language of section 6072(7-A)(G) itself does not definitively establish
specific criteria for the condition, but the legislatively endorsed rules adopted
by the Department do.
[¶23] As mandated by 12 M.R.S. § 6072(7-A), the Department adopted,
with legislative endorsement, major substantive rules establishing specific
noise criteria. See Resolves 2005, ch. 58; 13-188 C.M.R. ch. 2, § 2.37(1)(A)(9).
Section 2.37(1)(A)(9) provides as follows:
All motorized equipment used during routine operation at an
aquaculture facility must be designed or mitigated to reduce the
sound level produced to the maximum extent practical.
Centralized feeding barges, or feeding distribution systems, shall
be designed or mitigated to reduce noise by installing the most
effective commercially available baffles at air intakes and outlets,
mounting of all relevant equipment to minimize vibration between
it and the hull, and using the most effective commercially available
soundproofing insulation.
All fixed noise sources shall be directed away from any residences
or areas of routine use on adjacent land.
17
An applicant shall demonstrate that all reasonable measures will be
taken to mitigate noise impacts from the lease activities.
(Emphasis added).
[¶24] Contrary to Friends’ contentions, neither the governing statute nor
the Department’s rules require that mechanized or motorized equipment be
operated at or below specific decibel or vibrational levels. Moreover, the
Department’s rules implementing section 6072(7-A)’s noise-impact standard
do not require lease applicants to submit information on specific decibel levels.
See 13-188 C.M.R. ch. 2, § 2.10. Rather, the rules direct the Commissioner to
ensure reasonable mitigation—the applicant must demonstrate that “all
reasonable measures will be taken” to mitigate noise impact and reduce sound
levels “to the maximum extent practicable” “at the boundaries of the lease site.”
13-188 C.M.R. ch. 2, § 2.37(1)(A)(9). The Commissioner determined here that
“[t]his is most often achieved by describing the design of the equipment, or
explaining how the equipment will be utilized or retrofitted to reduce sound
levels.”
[¶25] The Commissioner found, with substantial record support, that
Acadia demonstrated that it would use sufficient mitigation measures to satisfy
section 6072(7-A)(G) as further delineated by rule. Acadia proposed a number
of measures to reduce noise impacts, “[a]ll the mitigation measures are
18
consistent with approaches incorporated on other standard lease sites,” and
“[m]any of these measures exceed mitigation approaches on other standard
lease sites.”
[¶26] Specific to the harvesting machine and transport vessel, which
were less commonly found in other aquaculture operations and which Friends
contends would be the principal source of noise affecting the Lab’s operations,
the Commissioner found that Acadia proposed noise-reducing measures
sufficient to meet this standard, including an upgraded hydraulic system on the
transport vessel to utilize a below-deck engine with water-cooled hydraulic oil;
upward-facing mufflers and “cowl mufflers” 8 for the main drive engines to
minimize and dissipate noise; generators, fit with rubber footings, that are
mounted below deck on the transport vessel to reduce noise and vibrations;
and the rubber-foot mounting of the engine to further reduce vibrations.9
[¶27] In addition, the Commissioner incorporated as conditions of the
lease additional representations made by Acadia in its application and closing
arguments to reduce noise, including completely turning off the transport
8 A cowl muffler is a type of muffler developed by the military to reduce noise from field hospital
generators. Most Department-approved leases do not use hospital-grade cowl mufflers.
Acadia also represented that “[a]ccording to the manufacturer the noise of the running harvest
9
machine is very mild, less than a 4 stroke outboard engine.”
19
vessel “whenever possible,” even during harvesting; outfitting all portable
engines used on site regularly, except for outboard engines, with “higher than
standard muffling when possible”; and, if power washers are used more than
several times per year, mounting them below deck for noise mitigation.
[¶28] Friends asserts, however, that despite the evidence establishing
noise mitigation measures, Acadia failed to demonstrate that the noise from its
activities, and in particular from the use of the harvesting machine, will not
unreasonably interfere with the Lab’s use of the area. Friends argues that the
unrebutted expert testimony about the uncertainty that will be injected into the
Lab’s ongoing research activities alone “should have resulted in outright denial
of this type of lease.”
[¶29] The Commissioner considered the testimony and evidence about
potential noise impacts presented by Friends and the Lab’s witnesses; he
simply found it unconvincing. The Commissioner noted, for example, that the
Lab “is more than 1,590’ from the southwest boundary of the modified
proposed lease site” and “approximately 30’ from the high tide line in an area
that is regularly trafficked by tour vessels, mussel harvest vessels, power boats,
and lobster fishing vessels”; that the Lab “has its own dock, which is utilized by
employees with motorized watercraft”; that the Lab “maintains [its] grounds
20
with motorized equipment”; and that, although the Lab’s facility was under
renovation, “no provisions were made to soundproof the space to a certain
sound level, nor had the facility conducted its own sound readings to determine
at what levels the animals in their care would react adversely to noise or
vibrations or at what duration.”
[¶30] In sum, the Commissioner found the testimony about noise
impacts to be “largely speculative,” “based on assertions that the applicant was
required to supply precise studies and estimates of noise decibels not required
by the applicable law,” and “not consistent with evidence regarding [the Lab’s]
operations and approach to noise control and impacts from current noise
level[s] already present in the area.” The fact that the record contains other
evidence—even uncontested evidence—from which a different conclusion
might be drawn is not cause to overturn an agency’s decision if there is
competent evidence to support that decision. See Ouellette, 2022 ME 42, ¶ 20,
278 A.3d 1183. Here, the Commissioner applied the correct legal standard and
there is competent evidence to support the Commissioner’s findings and
conclusion.10
10 Contrary to an additional argument made by Friends, the Commissioner did not improperly
shift the burden to the intervenors to demonstrate noncompliance with the applicable statutory criteria pertaining to noise impacts and, in particular, the impacts on the Lab. The Commissioner correctly identified the burden as resting with the applicant, Acadia, by referencing the standard in
21
C. Treatment of the Lease Application as a Non-Discharge Application
[¶31] Standard applications for aquaculture leases are designated as
either “non-discharge” or “discharge” applications, and the application
requirements differ between the two designations. 13-188 C.M.R. ch. 2,
§ 2.10(B). Department rules define “discharge” as “any spilling, leaking,
pumping, pouring, emptying, dumping, disposing or other addition of any
pollutant including, but not limited to, the addition of feed, therapeutants or
pesticides to waters of the State.” 13-188 C.M.R. ch. 2, § 2.05(G). An applicant
submitting a “discharge application” must procure a Maine Pollutant Discharge
Elimination System (MEPDES) permit from DEP. 38 M.R.S. § 413(1) (2026).
[¶32] Friends maintains that the Department erred by not designating
Acadia’s lease application as a discharge application and that the Commissioner
abused his discretion by declining to make additional findings or reopen the
record in light of recent federal regulatory changes regarding PFAS chemicals.11
section 2.37(1)(A)(9): “An applicant shall demonstrate that all reasonable measures will be taken to mitigate noise impacts from the lease activities.” 13-188 C.M.R. ch. 2, § 2.37(1)(A)(9). The Commissioner relied on several sources of information in reaching his decision, and that is “consistent with [the Department’s] standard practice for developing the record that it uses to evaluate lease applications.” Maquoit Bay, 2022 ME 19, ¶ 19, 271 A.3d 1183.
11 “Per- and polyfluoroalkyl substances (PFAS) is a general term used to describe a group of over
5,000 different synthetic chemicals that are used in industrial and commercial applications throughout the world, most commonly to repel water and oil, to combat high temperatures, and to reduce the effects of friction. Historically, the most prevalent use of PFAS has included two synthetic chemicals: perfluorooctanoate (PFOA), and perfluorooctane sulfonate (PFOS).” 4 Cetrulo et al., Toxic 22
These arguments are premised on the supposition that the equipment and gear
Acadia plans to use, including plastic high-density polyethylene plastic piping,
“is likely to contain PFAS” and that power washing this gear is likely to
discharge PFAS and PFOA into Eastern Bay. We reject the arguments for
several reasons.
[¶33] First, although the Department initially treated Acadia’s
application as a non-discharge application when deeming it complete in
February 2020, its staff nevertheless submitted the application to DEP for
review. The application specifically proposed the use of plastic pipes and
power washers. The statute then in effect required that DEP “be notified of all
lease applications.” 12 M.R.S. § 6072(6)(C) (2020).12 Despite being provided
with the application, DEP did not request further information about or
comment on the application. Moreover, the Commissioner found in his decision
that Department staff “took official notice of a 2018 letter issued by the DEP
Torts Litigation Guide § 48:1, Westlaw (database updated May 2026). In May 2024, the Environmental Protection Agency (EPA) published its final rule designating PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.A. §§ 9601-75 (Westlaw through Pub. L. No. 119-100). See Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 89 Fed. Reg. 39124 (May 8, 2024) (codified at 40 C.F.R. pt. 302).
12 Title 12 M.R.S. § 6072(6)(C) has since been amended to require the Department to notify DEP
only of applications deemed to be discharge applications. See P.L. 2021, ch. 52, § 3 (effective Oct. 18, 2021) (codified at 12 M.R.S. § 6072(6)(C)).
23
determining that a discharge permit was not required for a similar aquaculture
lease application that also included the culture of shellfish and power
washing.”13 There is competent record evidence to support the Department’s
initial designation of Acadia’s application as a non-discharge application and
the Commissioner’s consistent treatment of it after that, given the information
available at the time the application was made and deemed complete.
Cf. Maquoit Bay, 2022 ME 19, ¶ 21, 271 A.3d 1183 (“The record reflects that
DMR notified DEP about [the] completed application . . . , which defeats . . . [the
intervenors’] notice argument and their related contention that the allegedly
improper notice undermined DEP’s ability to consider the application of the
Natural Resources Protection Act.”).
[¶34] Second, there is no evidence in the record that the equipment
Acadia proposes to use contains any PFAS toxins. Friends merely asserts that
Acadia’s equipment “is likely to contain PFAS,” that power washing “will likely
result in a discharge of those pollutants,” and that there is a “potential for
[Acadia’s] proposed activities to result in the discharge of PFAS into the marine
13 The letter acknowledged receipt of the lease application and stated that DEP reviewed the application and determined that, with support from a decision of the United States Court of Appeals for the Ninth Circuit, Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007 (9th Cir. 2002), “this activity would not require [the applicant] to obtain a [MEPDES] permit . . . from the DEP.”
24
environment.” Though Friends contends that “the record does not reflect that
[Acadia’s equipment] is PFOA and PFAS free,” the more significant point is that
the record does not establish that Acadia’s equipment contains such chemicals
at all or that, if it did, they would be released into the marine environment
naturally or by virtue of equipment maintenance. On this record, there is no
basis for us to second-guess the Commissioner. See Maquoit Bay, 2022 ME 19,
¶ 20, 271 A.3d 1183 (holding that deference to the Department’s designation
of an application for a shellfish aquaculture lease as a non-discharge application
was appropriate where assertions that power washing equipment would result
in the discharge of pollutants were merely speculative).
[¶35] Finally, the federal regulatory changes that Friends cites as a basis
for reopening the record, including the EPA’s May 2024 designation of PFAS
chemicals as hazardous substances and subject to regulation under CERCLA,
see supra n.11, occurred after the close of the administrative record. We review
an agency’s denial of a request to reopen the record for an abuse of discretion,
Ellsworth ME Solar, LLC v. Pub. Utilities Comm’n, 2026 ME 10, ¶ 32, 353 A.3d
952, and find none here. There was no evidence in the record that Acadia’s
equipment contains PFOA or PFAS chemicals, and Friends’ argument that the
gear and power washers that Acadia plans to use in its operations will cause a
25
discharge of those chemicals into the water still “is speculative and does not
persuade us to disturb [the Commissioner’s] conclusion.” Maquoit Bay, 2022
ME 19, ¶ 20, 271 A.3d 1183.
The entry is:
Judgment affirmed.
Stacey L. Caulk, Esq., and David M. Kallin, Esq. (orally), Drummond Woodsum, Portland, for appellant Friends of Eastern Bay
Aaron M. Frey, Attorney General, and Valerie A. Wright, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Marine
Resources
Patrick W. Lyons, Esq., Viridian Law, P.C., Ellsworth, for appellee Acadia Aqua Farms, LLC
Business and Consumer Docket docket number APP-2025-1
FOR CLERK REFERENCE ONLY