A Superior Court judge has dismissed a legal challenge to the state’s approval of a fish farm planned for Jonesport, but the company behind the farm won’t begin construction just yet.
In a ruling last week, Justice Michaela Murphy determined that the state Board of Environmental Protection did not err when it upheld the state’s approval of Kingfish Maine’s application to discharge treated wastewater from the planned land-based fish farm into Chandler Bay.
There still is a pending court appeal in Washington County of the town’s approval of the project.
Kingfish officials have said they will wait until the legal challenges are resolved before they start work on the $110 million project, which is expected to result in construction of a 500,000 square foot building on Dun Garvan Road and the creation of roughly 70 full-time jobs at the fish farm.
Kingfish officials say the decision is a good sign for both the project and the town.
“We remain focused on the advancement of the Kingfish Maine facility,” said Vincent Erenst, CEO of Kingfish. “This ruling by the Superior Court underscores the continued work of our Maine-based team to the success of this project and Kingfish’s commitment to the Jonesport community which has supported our project from its introduction.”
Murphy’s Aug. 23 decision in Kennebec County Superior Court addresses longstanding concerns by project opponents that the discharge of treated wastewater from the fish farm will harm Chandler Bay.
The Sierra Club, the Roque Island Gardner Homestead Corporation, and Eastern Maine Conservation Initiative, which is closely affiliated with the homestead corporation, had appealed an earlier decision by the Maine Department of Environmental Protection to approve a wastewater discharge permit for the project. The homestead corporation is a family-owned entity with more than 100 members that owns Roque Island, which is nearly two miles away from the project site.
The groups appealed the DEP approval to the state environmental board, which is appointed by the governor to review appeals of DEP decisions. After the board upheld the DEP decision, the opponents took their appeal to court.
The opponents argued in court that the board should have required DEP, as part of its approval of the project under the Natural Resources Protection Act, to conduct an independent assessment of the impacts that the discharge of treated wastewater would have on wildlife. But in her decision, Murphy said such analysis is not required under NRPA.
“The court’s conclusion is informed by NRPA’s plain language, which does not mandate an independent analysis of the wildlife impacts related to effluent discharge activities,” the judge wrote.
The state did analyze the potential impacts of the wastewater discharge when it considered Kingfish’s separate wastewater discharge application, which is not subject to NRPA review, the judge said. The state concluded that the treated wastewater would not have an unreasonable impact on marine life in the bay, and the board legally upheld that conclusion, she said.
“Moreover, the court is satisfied that the agency’s decision to forgo such an independent inquiry [as part of the NRPA review] was reasonable, as the impacts of the proposed discharges had already been reviewed in depth in the context of the discharge permit,” the judge wrote.
Elizabeth Boepple, a lawyer representing the opponents, said that Murphy’s opinion that the Board of Environmental Protection has the discretion not to independently consider the project’s potential impacts on wildlife undermines the reasons why the state environmental entities were created in the first place.
“The fundamental function and purpose of the Department of Environmental Protection is to protect the environment,” Boepple said.
Project opponents are considering whether to appeal the matter further to the state supreme court.
Kingfish Maine also hopes the courts also will uphold the town planning board’s approval of the project, said Megan Sorby, operations manager. The town’s appeals board already has rejected the opponents’ argument that the town should not have approved Kingfish’s building permit application.
“This really bodes well for us being able to move forward,” Sorby said.