A judge has upheld the Maine Department of Environmental Protection’s permit for a controversial new Interstate 95 toll plaza in York, potentially clearing the way for construction to begin this year.

Superior Court Justice Michaela Murphy rejected an appeal of the DEP decision to issue a permit to build an estimated $40 million “open road tolling” facility in York to replace the aging toll plaza. The Maine Turnpike Authority chose an open road tolling system — featuring a combination of cash-pay lanes and higher-speed E-ZPass lanes — because they determined the alternative “all-electronic tolling” would be less feasible financially because it relied on bills sent through the mail to drivers without E-ZPass.

After years of fighting the authority’s proposal, one vocal critic expressed disappointment but was proud of the changes made to the plan in response to concerns. He said his organization, Think Again — Stop the York Toll Plaza Relocation, has no plans to appeal Murphy’s decision.

“We are pleased with what we have been able to achieve, so there is a positive side to it,” said Marshall Jarvis, co-chairman of Think Again. “While we’re not happy about it, we were able to dramatically reduce the size” of the original proposal.

The town of York had appealed the DEP decision following a yearslong debate over the location of the facility and the type of toll-collection system to be used.

The town argued that the authority wrongly rejected the “all-electronic tolling” system — which relies on license plate images to mail toll bills to drivers — by using out-of-date studies and overly pessimistic projections of the finances associated with the system. Massachusetts has demolished the traditional toll plazas on the Massachusetts Turnpike and several Boston-area locations as it switched to all-electronic tolling.

Additionally, York argued that a toll plaza using an all-electronic tolling system would have a smaller footprint and, therefore, would not require the authority to destroy wetlands regulated by the Natural Resources Protection Act permitting system.

All-electronic tolling ‘not practicable’

In her June 29 ruling, Murphy wrote that it is not the DEP’s job “to assess whether an alternative to the proposed plan would be more lucrative” for the authority.

“The role of the department is to assess whether the proposed project would cause unreasonable damage based in part upon the practicable alternatives available,” Murphy wrote. “In this case, the department found that the alternative of AET is not practicable. There is sufficient competent evidence in the record to support the department’s decision.”

Authority officials said Friday that construction on the three-year, $40 million project could begin in the fall barring any additional legal action.

“This is a good day for turnpike travelers and for the state,” Peter Mills, the authority’s executive director, said in a statement. “We have been working for a long time to bring the safety and convenience of highway speed tolling to Maine in a way that avoids toll increases, avoids diversion onto other roads, and minimizes environmental impacts. As expected, the Superior Court decision is consistent with earlier decisions made by the turnpike, the federal Army Corps of Engineers, the Maine State Legislature, and Maine DEP. They all concluded that the proposed plaza was the way to proceed.”

Town officials have yet to decide whether to appeal the decision to the Maine Supreme Judicial Court. York Town Manager Stephen Burns said the item is on the Board of Selectmen’s agenda for Monday and that he has personally recommended against an appeal.

Discussions on replacing the nearly 50-year-old toll facility began more than a decade ago. Initial studies and public debate focused on whether to build the new toll plaza in the same location at mile marker 7.3 on I-95, but expanded to include discussion about the type of collection system.

New toll will be at mile marker 8.8

The town of York and Think Again members vociferously fought the plan to build a new plaza about a mile and a half north at mile marker 8.8. They argued the location would result in more environmental disturbance as well as impact homes near the proposed site. Critics also questioned the authority’s ultimate decision to go with an open road tolling system consisting of both high-speed E-ZPass lanes as well as cash lanes, pointing toward other jurisdictions that had successfully switched to all-electronic tolling.

But turnpike officials countered that the toll plaza is surrounded by wetlands and, because of its location at the bottom of a hill on a curve near an exit, it would be inappropriate for high-speed E-ZPass tolls. On toll collection systems, Turnpike officials said an all-electronic system would require more overhead costs, force an estimated doubling of the fare for pay-by-mail customers and result in a significant percentage of tolls ultimately going unpaid.

In May 2017, the U.S. Army Corps of Engineers approved the authority’s plans and issued a permit that includes an allowance to destroy roughly 1.4 acres of wetlands. The Maine DEP followed through with its permit in September 2017, prompting the court appeal from the town.

An attorney for the town, Scott Anderson, said Friday that the DEP never felt obligated to closely examine the authority’s claims about the financial feasibility of all-electronic tolling because the impacts to wetlands were fairly minor.

“As such, the court’s order says nothing about the financial wisdom of MTA proceeding with a $40 million project when a $5 million project might be a better financial deal for users of the turnpike,” Anderson said. “It is the town’s position that the report that supports MTA’s current plan … is by MTA’s own admission, out of date, and MTA has not updated its financial analysis of whether its proposed (open road tolling) facility will result in higher tolls over time. Users of the turnpike should be concerned that the MTA may be proceeding with a construction project that will cost tens of millions of dollars more than necessary, and lead to higher tolls in the future.”

Construction to start in the fall

Mills said that, absent an appeal, the authority plans to begin advertising for bids for the work this summer with a goal of starting construction in the fall. Construction is expected to take three years, but Mills said the authority will keep at least three travel lanes open in each direction during high-traffic periods. The anticipated $40 million price tag will be paid by the authority using fees from tolls.

“The issues at stake have now been fully and fairly heard many times by multiple reviewers,” Mills said. “Everyone agrees that Maine citizens, businesses and visitors deserve a new gateway to our state.”

Memorial Day traffic builds at the York toll plaza in 2008. (Portland Press Herald file photo)

Southbound traffic passes through the York toll plaza on the Maine Turnpike on a Friday afternoon. (Portland Press Herald file photo)