ATTACHMENT A 

Analysis Supporting EPA’s February 2, 2015 Decision

to Approve, Disapprove, and Make No Decision on, Various Maine 

Water Quality Standards, Including Those Applied to 

Waters of Indian Lands in Maine 

EXECUTIVE SUMMARY 

Maine’s Department of Environmental Protection (DEP) submitted numerous new or revised 

water quality standards (WQS) to EPA for review and approval under the Clean Water Act 

(CWA) between 2003 and 2014. In its decisions from 2004-2013 following review of such 

WQS, EPA limited its approvals of the new or revised WQS to state waters outside of Indian 

territories and lands in Maine (“Indian lands”), and explicitly refrained from taking any action on 

the WQS for waters in Indian lands. In its decision today, EPA is responding to the outstanding 

new and revised WQS from 2003-2014 as they relate to waters in Indian lands, and, in the case 

of some of the WQS, also as they relate to state waters outside of Indian lands. 

As summarized below and explained in more detail in the body of this decision support 

document, Maine has the authority to establish WQS for waters in Indian lands, subject to EPA’s 

authority under the CWA to review and approve or disapprove such standards. After evaluating 

the various new and revised WQS contained in DEP’s submissions from 2003-2014, EPA is 

today approving all of the aquatic life criteria for toxic pollutants for waters in Indian lands 

except for ammonia, and all but one of the new aquatic life criteria submitted in 2013 for all 

waters, including in Indian lands.1

 EPA is also approving a number of other WQS provisions for 

waters in Indian lands, as well as Maine’s classifications and designated uses for those waters. 

EPA is disapproving Maine’s human health criteria as they apply to waters in Indian lands. 

Finally, EPA has identified a number of provisions on which it is taking no action because they 

are not WQS and therefore are not subject to EPA review. 

The bases for two aspects of EPA’s decision today are summarized below because of their 

complexity -- EPA’s conclusion that Maine has the authority to establish WQS in waters in 

Indian lands, and EPA’s conclusion that Maine’s human health criteria do not protect the 

designated uses and therefore must be disapproved. 

. 

 

1

 EPA is taking no action on the ammonia criteria and certain provisions related to bacteria and pesticides, based on 

our understanding from discussions with DEP staff that DEP will be revising these criteria and provisions in light of 

recent EPA criteria recommendations and to ensure the protection of designated uses, nor is EPA taking action on 

the reclassification of a non-tribal water (Long Creek), pending further discussion with DEP. See section 4.8 below. 

EPA is also taking no action on one of the new phenol criteria for all waters pending DEP’s correction of a 

mathematical error, which DEP has agreed to correct. See section 4.3 below. Finally, EPA is taking no action on 

the cancer risk level for arsenic in light of EPA’s disapproval of the arsenic criteria for waters in Indian lands. See 

section 4.2.4 below. 
2 

The Issue: The State of Maine submitted numerous new and revised water quality standards 

(WQS) for EPA to approve under the Clean Water Act in the territories and lands of the federally 

recognized Indian Tribes in Maine – the Penobscot Nation, Passamaquoddy Tribes, Houlton 

Band of Maliseet Indians, and Aroostook Band of Micmacs. Under well-established principles 

of federal Indian law, states generally do not have authority to regulate the environment in Indian 

country. Maine asserts that in the Maine Indian Claims Settlement Act (MICSA) Congress 

granted the State jurisdiction to regulate the environment in the Tribes’ lands, including the 

authority to set WQS. The Tribes contest that assertion, noting especially that state WQS have 

the potential to determine how much fish they may safely eat in waters where the Tribes fish for 

their sustenance. The Tribes assert the State has not adequately accounted for their sustenance 

fishing practices in setting the WQS submitted to EPA. 

 

Jurisdiction to set WQS: EPA analyzed the jurisdictional provisions of MICSA extensively, 

including a careful review of comments from the Tribes and Maine on the jurisdictional 

provisions of the statute. EPA concludes that under the unique jurisdictional formula Congress 

established in Maine, the State has jurisdiction to set WQS in the waters on the Tribes’ lands. 

See Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007). But the Agency also finds that this authority 

is not unconstrained. EPA is required under the Clean Water Act to review state WQS, and will 

approve them when they comply with the Act. In these circumstances, where Maine is 

authorized to set WQS in tribal waters, EPA is informed by the operation of the Indian 

settlement acts in Maine and will require that WQS in tribal waters protect the Tribes’ 

sustenance fishing use of those waters. 

Sustenance Fishing Use in Tribal Waters: The first step in establishing and reviewing WQS is 

to determine the uses of the waters. In tribal waters, EPA must harmonize the CWA requirement 

that WQS must protect uses with the fundamental purpose for which land was set aside for the 

Tribes under the Indian settlement acts in Maine. Those settlement acts, which include MICSA 

and other state and federal statutes that resolved Indian land claims in the State, provide for land 

to be set aside as a permanent land base for the Indian Tribes in Maine. One clear purpose of 

that set aside is to provide a land base on which these Tribes could continue their unique 

cultures. A critical element of tribal cultural survival is the ability to exercise sustenance living

practices, including sustenance fishing. There are multiple provisions in the Indian settlement 

acts that specifically codify the Tribes’ sustenance practices. Maine general law regulating fish 

take accommodates sustenance fishing, and in several regards also specifically codifies the 

Tribes’ ability to sustenance fish. The legislative record supporting the Indian settlement acts in 

Maine makes it clear that the statutes intend to create a land base on which the Tribes in Maine 

may fish for their sustenance. Therefore, EPA interprets the State’s “fishing” designated use, as 

applied in tribal waters, to mean “sustenance” fishing; and EPA is approving a specific 

sustenance fishing right reserved in one of the settlement acts as a designated use for certain 

tribal reservation waters. 

Protecting the Sustenance Fishing Use: To adequately protect that sustenance fishing use, the 

State must revisit two aspects of its analysis supporting the human health criteria that determine 

how clean the waters must be to allow the Tribes to safely consume fish for their sustenance. 

First, the analysis must treat the tribal population exercising the sustenance fishing use as the 

target general population, not as a high-consuming subpopulation of the State. EPA guidance 
3 

calls for WQS that provide a high level of protection for the general population, while 

recognizing that small subpopulations may face greater levels of risk. However, the Tribes are 

not a subpopulation using the waters on their own lands; they are the population for which that 

land base was established and set aside. Second, the data used to determine the fish consumption 

rate for tribal sustenance consumers must reasonably represent tribal consumers taking fish from 

tribal waters and fishing practices unsuppressed by concerns about the safety of the fish available 

to them to consume. The data on which the State relied to develop fish consumption rates for 

these WQS did not include information about the sustenance practices of tribal members fishing 

in their own waters, nor did they represent consumption levels that were unsuppressed by 

concerns about pollution. EPA concludes that the best available data that represent the 

unsuppressed sustenance fishing practices of tribal members fishing in tribal waters are 

contained in the Wabanaki Lifeways study, which looked at the historic sustenance practices of 

the Tribes in Maine. 

EPA has received a written legal opinion dated January 30, 2015 from the Solicitor of the 

Department of the Interior (DOI) addressing several of the issues involved in EPA’s decision. 

EPA sought DOI’s advice because the Department is the federal government’s expert agency on 

matters of Indian law and is charged with administering the settlement acts in Maine. 

Passamaquoddy Tribe v. State of Maine, 75 F.3d 784, 794 (1st Cir. 1996) (DOI is the department 

that administers MICSA). DOI has provided EPA important insight into how the Indian 

settlement acts in Maine address the Tribes’ right to fish and the critical relationship between 

those rights and water quality. In making our decision on Maine’s WQS, EPA has carefully 

considered and relied upon the DOI Solicitor’s analysis, which is reflected in DOI’s written 

opinion and is included in the administrative record for this decision. 

The Remedy: EPA is disapproving Maine’s human health criteria because they are not 

protective of human health for the target population. They are based on a fish consumption rate 

of 32.4 grams per day, with the exception of arsenic which is based on 138 grams per day. 

However, the Wabanaki study indicates that consumption values between 286 and 514 grams per 

day represent the sustenance fishing use in tribal waters. EPA is approving Maine’s regulation 

requiring that human health criteria, except for arsenic, be based on a cancer risk level of no 

more than one in a million (10-6) as applied to the Tribe’s waters, because that is a reasonable 

level of risk for a general target population. EPA is approving nearly all the State’s aquatic life 

criteria, because they are consistent with the Clean Water Act and unlike the human health 

criteria, they do not implicate the safety of fish for human consumption. The Clean Water Act 

gives the State 90 days to address the bases for EPA’s disapproval of the human health criteria, 

after which time, if the State does not do so, EPA will propose and promulgate appropriate human 

health criteria for waters in Indian lands in Maine. 

 
4 

1 Background 

1.1 Overview 

On January 14, 2013, the Maine Department of Environmental Protection (DEP) submitted a 

request to EPA to approve five new or revised water quality criteria (WQC) and specifically 

asked EPA to approve them in all waters located in the State of Maine, including waters in the 

territories and lands of the federally recognized Indian Tribes in Maine. 

EPA’s review of the State’s submission determined that when the State provided public notice on 

its proposed WQS revisions, it was not clear on the record that the State had solicited comment 

on the question of the State’s authority to set WQS in waters in the Tribes’ territories and lands 

(as explained further below, hereinafter EPA will use the term Indian or tribal “lands” to refer to 

the entire tribal land base in Maine). Although EPA does not customarily provide public notice 

for state WQS submissions, the Agency exercised its discretion in the unique circumstances of 

this submittal to invite public comment on the issue of applying state WQS in waters in Indian 

lands in Maine. EPA identified two general areas for comment. First, has the State 

demonstrated adequate authority to set WQS in waters in Indian lands? Second, if so, are the 

WQC that the State submitted based on sound scientific rationale and adequate under the Clean 

Water Act (CWA) to protect uses in those waters? 

This document contains the detailed explanation to accompany EPA’s decision letter acting on 

the State’s request that EPA approve these WQS for waters in Indian lands. In addition, from 

2004 through 2010, in response to Maine’s 2003 to 2009 submittals of new or revised WQS, 

EPA approved WQS for waters outside of Indian lands, but specifically stated that EPA was 

taking no action to approve or disapprove WQS within Indian lands. Today’s decision addresses 

all of Maine’s WQS submissions from 2003 through 2014 as they relate to waters in Indian 

lands, as well as certain submissions on which EPA has not yet acted for any waters in Maine.2

 

In summary, EPA finds that Maine has jurisdiction to set WQS for waters in Indian lands. 

Because EPA has not yet approved any of Maine’s WQS for waters in Indian lands, EPA is first 

approving the State’s classifications and associated designated uses for these waters. All of the 

relevant classifications include a designated use of “fishing,” which the Agency interprets to 

include sustenance fishing consistent with these Tribes’ sustenance practices in waters on their 

lands. EPA is also approving a specific sustenance fishing use for the inland waters of the 

reservations of the Penobscot Nation and Passamaquoddy Tribe. EPA is approving all but one of 

the State’s aquatic life criteria. EPA has determined that Maine’s human health criteria, 

however, do not adequately protect the designated use of sustenance fishing in the waters in 

tribal lands and, therefore, do not comply with the CWA’s requirement that criteria protect the 

 

2

 EPA is also approving today certain pre-2004 WQS for waters in Indian lands to the extent necessary to act on the 

submissions from 2003 through 2014. EPA intends to act on other pre-2004 WQS applicable to those waters as 

soon as possible. Before 2004, EPA’s approvals or disapprovals of new or revised WQS in Maine did not address 

waters in Indian lands, or expressly consider the State’s jurisdiction to establish WQS for such waters or the 

sufficiency of the State’s WQS for such waters under the CWA. EPA thus takes the position that it has not 

previously approved any of the State’s pre-2004 WQS for waters in Indian lands in Maine. 
5 

uses of the waters to which they apply. In a separate document EPA will respond to specific 

comments that interested parties submitted. 

1.2 Indian Tribes in Maine 

There are four federally recognized Indian Tribes in Maine represented by five governing bodies. 

The Penobscot Nation and the Passamaquoddy Tribe have reservations and trust land holdings in 

central and coastal Maine. The Passamaquoddy Tribe has two governing bodies, one on the 

Pleasant Point Reservation and another on the Indian Township Reservation. The Houlton Band 

of Maliseet Indians and the Aroostook Band of Micmacs have trust lands further north in the 

State. To simplify the discussion of the legal framework that applies to each Tribe’s territory, 

EPA will refer to the Penobscot Nation and the Passamaquoddy Tribe together as the “Southern 

Tribes” and the Houlton Band of Maliseet Indians and Aroostook Band of Micmacs as the 

“Northern Tribes.” EPA acknowledges that these are collective appellations the Tribes 

themselves have not adopted, and the Agency uses them solely to simplify drafting this decision. 

1.3 Settlement Acts in Maine 

1.3.1 MIA and MICSA 

In 1980, Congress passed the Maine Indian Claims Settlement Act (MICSA), which resolved 

litigation in which the Southern Tribes asserted land claims to a large portion of the State of 

Maine. 25 U.S.C. §§ 1721, et seq. MICSA ratified a state statute passed in 1979, the Maine 

Implementing Act (MIA), which was designed to embody the agreement reached between the 

State and the Southern Tribes. 30 M.R.S. §§ 6201, et seq. In 1981, MIA was amended to 

include provisions for land to be taken into trust for the Houlton Band of Maliseet Indians, as 

provided for in MICSA. 30 M.R.S. § 6205-A, 25 U.S.C. § 1724(d)(1). Since it is Congress that 

has plenary authority as to federally recognized Indian Tribes, MIA’s provisions concerning 

jurisdiction and the status of the Tribes are effective as a result of, and consistent with, the 

Congressional ratification in MICSA. 

1.3.2 MSA and ABMSA 

In 1989, the Maine legislature passed the Micmac Settlement Act (MSA) to embody an 

agreement as to the status of the Aroostook Band of Micmacs. 30 M.R.S. §§ 7201, et seq. In 

1991, Congress passed the Aroostook Band of Micmacs Settlement Act (ABMSA), which 

ratified the MSA. 25 U.S.C. § 1721, Act Nov. 26, 1991, P.L. 102-171, 105 Stat. 1143. One 

principal purpose of both statutes was to give the Micmacs the same settlement that had been 

provided to the Maliseets in MICSA. See ABMSA § 2(a)(4) and (5). In 2007, the Federal Court 

of Appeals for the First Circuit confirmed that the Micmacs and Maliseets are subject to the same 

jurisdictional provisions in MICSA. Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 (1st Cir. 

2007). 

Where appropriate, this document will refer to the combination of MICSA, MIA, ABMSA, and 

MSA as the “settlement acts.” 
6 

1.4 Indian Territories and Lands in Maine 

MICSA, MIA, MSA and ABMSA establish a unique framework for confirming and enhancing 

the Tribes’ land base in Maine. For the Southern Tribes, MIA uses the term “Indian territory” to 

describe the combination of the Southern Tribes’ reservations, as described in treaties with the 

States of Maine and Massachusetts, plus 150,000 acres of land for each Tribe to be held in trust 

for the Tribes by the United States. 30 M.R.S. § 6205(1) and (2). As such, the Southern Tribes’ 

land base is made up of both the reservations continuously occupied by the Tribes, and 

subsequently acquired trust lands. 

The land base for the Northern Tribes is made up entirely of trust lands. MIA provides for the 

Houlton Band of Maliseet Indians to acquire trust land, and Congress provided $900,000 in 

MICSA to fund that acquisition. 30 M.R.S. § 6205-A, 25 U.S.C. § 1724(d)(1). Similarly, the 

MSA provides for the Aroostook Band of Micmacs to acquire trust land, and Congress again 

provided $900,000 in ABMSA to fund that acquisition. 30 M.R.S. § 7204, ABMSA §§ 4(a) and 

5(a). 

In this document, where appropriate depending on the context, EPA will refer to the tribal land 

base relevant to this decision as follows: “territories” for the Southern Tribes’ land base, which 

as described above includes both reservations and trust lands; “trust lands” for the Northern 

Tribes’ land base; and “Indian” or “tribal” lands for the entirety of all the Tribes’ land base in 

Maine.3

 

1.4.1 Identification of waters covered by this decision 

The Penobscot Indian Nation and Passamaquoddy Tribe have reservation lands as defined in 

MIA. 30 M.R.S. § 6203(5) (defining Passamaquoddy Indian Reservation); § 6203(8) (defining 

Penobscot Indian Reservation). The trust lands acquired for the Maine tribes are the product of 

modern conveyances. Generally, based on the default Maine property rule under which owners 

of riparian land also own out to the thread, or middle, of most streams, Wilson & Son v. 

Harrisburg, 107 Me. 207, 212-213 (1910), Indian waters include waters adjacent to land held in 

trust by the Secretary of the Interior and lands in the Tribes’ reservations as defined in the 

Settlement Acts.4 In addition, Maine common law provides that owners of shore land above the 

mean high water mark presumptively hold title in fee to intertidal land. Bell v. Town of Wells, 

557 A.2d 168 (Supreme Judicial Court of Maine, 1989). In Bell (often referred to as the “Moody 

Beach case”), the court explained that such title is subject only to the public’s right to fish, fowl,

and navigate, and that the rule of law governing titles to intertidal land has its origin in the 

 

3

 In addition to their reservations and trust lands, the Tribes also hold certain lands in fee, which are not at issue in 

this matter. Any action EPA has taken to approve Maine WQS for waters outside Indian lands would apply to 

waters in these fee lands. 

4

 See Report of the Joint Select Committee on Indian Land Claims, Maine Legislature (1980), par. 14. (“The 

boundaries of the Reservations are limited to those areas described in the bill, but include any riparian or littoral 

rights expressly reserved by the original treaties with Massachusetts or by operation of State law. Any lands 

acquired by purchase or trade may include riparian or littoral rights to the extent they are conveyed by the selling 

party or included by general principles of law. However, the Common Law of the State, including the Colonial 

Ordinances, shall apply to this ownership. The jurisdictional rights granted by this bill are coextensive and 

coterminous with land ownership.”) 
7 

Colonial Ordinance of 1641-47 of the Massachusetts Bay Colony. As stated in an article written 

by the Marine Law Institute, University of Maine School of Law, “[t]he Moody Beach Case 

affirms that in Maine owners of beachfront property or property adjoining tidelands (also called 

littoral or riparian owners) have property rights to the low water mark or low tide area subject 

only to a public easement for fishing, fowling, and navigation.” See Citizens’ Guide to Ocean 

and Coastal Law, Public Shoreline Access and the Moody Beach Case, August, 1990. 

Therefore, the Passamaquoddy Tribe’s reservation at Pleasant Point would include at least the 

waters present in the intertidal zone. 

EPA acknowledges that there are remaining uncertainties over what waters are associated with 

Indian lands in Maine in a few locations. For instance, the boundaries of the Penobscot Nation’s 

reservation are currently the subject of litigation in the United States District Court for the 

District of Maine. Penobscot Nation v. Mills, Case No. 1:12-cv-254-GZS. The United States 

has intervened in that case, and it is the Government’s position that the reservation includes 

Penobscot River waters, while the State of Maine alleges it does not. Pending resolution of this 

dispute, EPA’s decision to approve or disapprove Maine’s WQS for Indian waters includes at 

least some portion of the Penobscot River in the main stem from Indian Island north surrounding 

the islands in the Nation’s reservation. 

In addition, this decision treats the Passamaquoddy Tribe’s reservation as including the “15 

islands in the St. Croix River in existence on September 19, 1794 and located between the head 

of the tide of that river and the falls below the forks of that river . . .” as specifically enumerated 

in MIA’s definition of the reservation. 30 M.R.S. 6203(5). 

It is not necessary or reasonable for EPA to suspend its decision on the State’s WQS submissions 

to await an authoritative resolution of disputes over the boundaries of Indian waters. If any 

disputes over reservation boundaries result in an authoritative adjudication inconsistent with the 

assumptions made in this decision, EPA will revisit or clarify the scope of the Agency’s 

determinations in this decision. 

 

2 EPA’s Determination that Maine has Authority to Set WQS in Indian Territories 

EPA concludes that MICSA provides the State with jurisdiction to set WQS in the Northern 

Tribes’ trust lands and that the federal statute ratifies provisions of MIA that provide the State 

with such authority in the Southern Tribes’ territories. Although in both cases the settlement acts 

provide the State jurisdiction to establish WQS, EPA notes that MICSA provides a different 

jurisdictional framework for the Northern Tribes than that which applies to the Southern Tribes. 

2.1 Northern Tribes 

MICSA provides that the Northern Tribes are subject to state law: 

Except as provided in section 1727(e) and section 1724(d)(4) of this title, all Indians, 

Indian nations, or Tribes or bands of Indians in the State of Maine, other than the 

Passamaquoddy Tribe, the Penobscot Nation, and their members, and any lands or natural 

resources owned by any such Indian, Indian nation, Tribe or band of Indians and any 
8 

lands or natural resources held in trust by the United States, or by any other person or 

entity, for any such Indian, Indian nation, Tribe, or band of Indians shall be subject to the 

civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal 

jurisdiction of the courts of the State, to the same extent as any other person or land 

therein. 

25 U.S.C. 1725(a). In addition, MICSA ratified MIA, which also provides that all tribes in 

Maine, including the Northern Tribes are subject to state law: 

Except as otherwise provided in this Act, all Indians, Indian nations, and Tribes and 

bands of Indians in the State and any lands or other natural resources owned by them, 

held in trust for them by the United States or by any other person or entity shall be 

subject to the laws of the State and to the civil and criminal jurisdiction of the courts of 

the State to the same extent as any other person or lands or other natural resources 

therein. 

30 M.R.S. § 6204. Both statutes make it clear that laws of the State include regulation and that 

lands and natural resources include water and water rights. 25 U.S.C. §§ 1722(b) and (d); 30 

M.R.S. § 6203(3) and (4). The only exceptions to state jurisdiction provided in MIA apply to the 

Southern Tribes. There are no such exceptions for the Northern Tribes. Notably, the U.S. Court 

of Appeals for the First Circuit has expressly found that the State’s jurisdictional reach in the 

Northern Tribes’ lands is greater than in the Southern Tribes’ territories. Houlton Band of 

Maliseet Indians v. Ryan, 484 F.3d 73, 74-75 (1st Cir. 2007). That same year the First Circuit 

ruled that, even as to the Southern Tribes, MICSA and MIA grant the State jurisdiction to 

regulate surface water discharge permitting. Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007). As 

discussed below, EPA has concluded that the court’s analysis controls our decision as to the 

State’s authority to set WQS in the Southern Tribes’ territories. Given that MICSA gives the 

State a broader scope of jurisdiction over the Northern Tribes than over the Southern Tribes, 

which are nevertheless subject to the State’s authority to set WQS, it is clear that state law 

applies to the Northern Tribes, and the State has authority to set WQS for waters in these Tribes’ 

trust lands. 

The Aroostook Band of Micmacs has argued that the passage of ABMSA impliedly repealed the 

application of MICSA to the Tribe, and, therefore, that the Micmacs were not subject to the same 

jurisdictional framework as the Houlton Band of Maliseet Indians. The First Circuit, however, 

rejected that argument. Aroostook Band of Micmacs v. Ryan, 484 F.3d 41, 60-62 (1st Cir. 2007). 

2.2 Southern Tribes 

MICSA addresses the jurisdictional relationship between the Southern Tribes and the State by 

reference to MIA, which MICSA ratifies: 

The Passamaquoddy Tribe, the Penobscot Nation, and their members, and the land and 

natural resources owned by, or held in trust for the benefit of the Tribe, nation, or their 

members, shall be subject to the jurisdiction of the State of Maine to the extent and in the 
9 

manner provided in the Maine Implementing Act and that Act is hereby approved, 

ratified, and confirmed. 

25 U.S.C. § 1725(b)(1). As discussed above, MIA in turn provides generally that all Indian 

Tribes in the State are subject to state law: 

Except as otherwise provided in this Act, all Indians, Indian nations, and Tribes and 

bands of Indians in the State and any lands or other natural resources owned by them, 

held in trust for them by the United States or by any other person or entity shall be 

subject to the laws of the State and to the civil and criminal jurisdiction of the courts of 

the State to the same extent as any other person or lands or other natural resources 

therein. 

30 M.R.S. § 6204. Importantly, MIA section 6204 refers to exceptions to the grant of state 

jurisdiction found elsewhere in the statute, and those exceptions are all applicable to the 

Southern Tribes. See, e.g., §§ 6206 (internal tribal matters); 6207 (hunting and fishing in Indian 

territories); 6209-A & B (minor crimes, small claims, child custody, and domestic relations). 

EPA has carefully considered whether any of the exceptions provided in MIA operate to block 

the grant of jurisdiction to the State in the area of setting WQS in the Southern Tribes’ waters. 

EPA concludes that they do not impede the State’s jurisdiction to establish WQS under the CWA 

for the Southern Tribes’ waters. 

2.2.1 Maine v. Johnson Decision 

The U.S. Court of Appeals for the First Circuit previously adjudicated the issue of Maine’s 

authority to regulate water quality protection in the Southern Tribes’ territories. In 2003, EPA 

approved the State to issue national pollutant discharge elimination system (NPDES) permits 

under the CWA generally in the Southern Tribes’ territories, except for those dischargers where 

EPA concluded that permitting would qualify as an internal tribal matter. MIA section 6206 

exempts the Southern Tribes’ internal tribal matters from state regulation. EPA determined that 

two tribally owned and operated public treatment works, which served only tribal members on 

the Tribes’ reservations and had minimal water quality impacts at the point of discharge, 

qualified as internal tribal matters, and thus excluded those two facilities from the State’s 

approved permitting program. In Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007), the First Circuit 

upheld EPA’s approval of the State’s program in the Southern Tribes’ territories, but reversed 

EPA’s decision to withhold approval of the State to issue the permits for the two tribal treatment 

works. 

In ordinary statutory construction, the [internal tribal matters] proviso thus reserves to the 

tribe matters pertaining to tribal membership and governance structure, expenditure of 

fund income and other matters of the same kind . . .; but it does not displace general 

Maine law on most substantive subjects, including environmental regulation. . . . 

[W]e readily uphold the position of the EPA and Maine that the nineteen non-Indian 

discharge sources draining into tribal waters can be regulated by the state. The only real 

question is the EPA’s carve-out of the two source points that are on tribal lands and are 

owned by Tribe entities. . . . 
10 

In our view, the Settlement Acts make ordinary Maine law apply, even if only tribal 

members and tribal lands are affected in the particular case, unless the internal affairs 

exemption applies; and the scope of that exemption is determined by the character of the 

subject matter. Discharging pollutants into navigable waters is not of the same character 

as tribal elections, tribal membership or other exemplars that relate to the structure of 

Indian government or the distribution of tribal property. 

Id. at 44-46 (emphasis in original; citations omitted). EPA has concluded that the Maine v. 

Johnson decision makes it clear that the grant of jurisdiction to the State includes the area of 

environmental regulation, certainly as it applies to surface water discharge permitting. The 

Agency also finds no basis to distinguish the analysis in that case as applied to the State’s 

authority to set WQS for surface waters in the Southern Tribes’ territories. 

2.2.2 Arguments Maine Tribes have Advanced for Exceptions to State Jurisdiction for 

Southern Tribes 

EPA considered whether, given the jurisdictional provisions of the applicable statutes and the 

precedent set in Maine v. Johnson, there is any basis for concluding that the State’s authority to 

administer the NPDES permitting program would not apply equally to the State’s WQS program. 

EPA concludes there is no such basis. 

2.2.2.1 Internal Tribal Matters 

As a threshold matter, the court in Maine v. Johnson concluded that environmental regulation 

was part of the jurisdictional grant to the State in Indian lands: 

[T]he [internal tribal matters] proviso thus reserves to the tribe matters pertaining to tribal 

membership and governance structure, expenditure of fund income and other matters of 

the same kind . . .; but it does not displace general Maine law on most substantive 

subjects, including environmental regulation. 

Id. at 45 (emphasis in original; underscore added). The WQS program is clearly a form of 

environmental regulation that would be covered by this characterization of the State’s authority. 

Strictly speaking, the facts on which the court’s holding rests only presented the question of the 

State’s authority to issue waste water discharge permits. Nevertheless, the court’s reasoning in 

that case makes it clear that this exception to State jurisdiction would not block the State from 

setting WQS. 

When the Agency withheld approval from Maine to permit the two tribal treatment works, EPA 

conducted an analysis of the factors the First Circuit articulated in two prior cases examining 

whether a particular subject matter qualifies as an internal tribal matter not subject to state 

regulation. Akins v. Penobscot Nation, 130 F.3d 482, 486-490 (1st Cir. 1997); Penobscot Nation 

v. Fellencer, 164 F.3d 706, 710-713 (1st Cir. 1999). In its review of EPA’s decision, the Johnson

court found it unnecessary to apply the factors developed in the Akins and Fellencer cases; rather 

it concluded that this multi-factor assessment is relevant only when an area of regulation is 
11 

“arguably close to the (perhaps blurred) statutory borderline” of what might qualify as an internal 

tribal matter. 498 F.3d at 46. The court concluded that “discharging pollutants into navigable 

waters is not a borderline case in which balancing . . . or ambiguity canons . . . alter the result.” 

Id. (citations omitted). 

EPA evaluated whether the authority to set WQS is any closer to the statutory borderline the 

First Circuit has outlined and, therefore, might properly be analyzed using the Akins/Fellencer 

factors rather than the more categorical analysis in the Johnson decision. The Penobscot Nation 

commented to EPA that setting WQS directly affects the quality of fish the Tribe is able to 

consume for its sustenance, an area of concern at the core of the Nation’s existence. The 

Penobscot Nation’s view is that this effect on the Tribe’s ability to safely consume fish makes 

setting WQS an internal tribal matter. EPA does not agree. Indeed, the Agency concludes that 

setting WQS is an exercise of jurisdiction even further from the “borderline” between state 

jurisdiction and internal tribal matters that the Johnson court posited. 

The decision EPA is making is approval of WQS that are an integral part of a larger legal 

framework provided for in the CWA. Within that framework, the CWA and EPA’s regulations 

provide that NPDES permits for upstream dischargers must include limits that assure compliance 

with downstream WQS. 40 C.F.R. § 122.44(d)(4) and CWA § 401(a)(2). In reviewing Maine’s 

NPDES program, EPA found that permitting the two tribal treatment works involved only tribal 

members and would have minimal effect on water quality outside the Tribes’ territories. See 498 

F.3d at 45 n. 8. EPA cannot make a corresponding finding here that setting a WQS would not 

have the potential for an effect on non-members or on water quality outside the Tribes’ 

territories. When it established the multi-factor internal tribal matters analysis, the Akins court 

noted that “First, and foremost, the [stumpage policy at issue] purports to regulate only members 

of the Tribe . . ..” 130 F.3d at 486 (emphasis added). On this “foremost” factor, EPA concludes 

that the WQS program can have regulatory effects beyond the Tribe. Generally, downstream 

WQS determine what limits upstream dischargers must meet to assure protection of those WQS, 

which is a legal effect that could reach beyond the membership of the Tribes and the boundaries 

of their territories. These effects put the setting of WQS even further from the “(perhaps blurred) 

statutory borderline” of what qualifies as an internal tribal matter under the MIA and MICSA. 

In Maine v. Johnson the court was prepared to accept EPA’s finding that permitting the two 

tribal treatment works would not have a substantial effect outside the Tribes’ territories, and it 

still refused to treat the category of waste water discharge permitting as an internal tribal matter. 

Here, EPA cannot find that setting WQS will have no potential for a substantial effect outside the 

Tribes’ territories. Therefore, under the principles announced in Maine v. Johnson, EPA 

concludes that setting WQS does not qualify as an internal tribal matter. 

2.2.2.2 The Southern Tribes’ Sustenance Fishing Right 

EPA has also considered whether the reservation in MIA of the Southern Tribes’ right to take 

fish for their individual sustenance within their reservations provides an exception to the State’s 

jurisdiction. That right is reserved to the Southern Tribes “[n]otwithstanding . . . any other law 

of the State.” 30 M.R.S. § 6207(4). Arguably, if a state law interfered with the Southern Tribes’ 

right to take fish for their individual sustenance, this provision would block that law’s 
12 

application in the Southern Tribes’ reservations. However, EPA concludes that the State’s 

administration of WQS, subject to CWA requirements and EPA’s oversight, does not have the 

potential to interfere with the Southern Tribes’ sustenance fishing right. 

MIA is clear that the basic grant of jurisdiction to the State includes the authority to apply laws 

of the State, which include regulations, to the Tribes’ natural resources, which include “water 

and water rights and hunting and fishing rights.” 30 M.R.S. §§ 6204, 6203(3) and (4). To 

conclude that the reserved fishing right precludes the operation of all state laws affecting 

environmental regulation that might indirectly affect the fishing right, one would have to 

conclude that the State’s regulation of water quality is inherently and necessarily inimical to the 

Tribes’ ability to take fish for their individual sustenance. EPA cannot reach that conclusion. 

First, there are many state WQS that are reasonably adequate to support a fishery that could 

provide for an individual tribal member’s sustenance. Indeed, as discussed below, EPA is 

approving many state WQS provisions that EPA has determined are sufficient to protect aquatic 

life. In Maine v. Johnson the court made it clear that decisions about the scope of the State’s 

jurisdiction in the Southern Tribes’ territories should be made on the basis of the category of the 

subject matter at issue – the court specifically rejected EPA’s attempt to find or reject state 

jurisdiction based on the facts of any particular application of state jurisdiction within a subject 

matter category. “So we accept the EPA’s factual premise as to the [limited] impact of the 

discharges but not the EPA’s legal characterization. . . . [T]he scope of [the internal tribal 

matters] exemption is determined by the character of the subject matter.” 498 F.3d at 45-46. 

The subject category at issue in Maine v. Johnson was environmental regulation of pollutants in 

surface waters, the same category at issue here. The impact of a specific state WQS regulation 

on the Tribes’ sustenance fishing rights might provide the basis for a challenge to that specific 

regulation, but the bare potential for such a specific challenge at some point provides no basis for 

precluding all state regulation of that subject area. It is possible for the State to exercise 

jurisdiction to set WQS without necessarily or inevitably interfering with the Tribes’ fishing 

rights. 

Second, if the State does submit a new or revised WQS that would interfere with the Tribes’ 

reserved fishing right, EPA has authority under the CWA to ensure that the Tribes’ fishing right 

is protected. As described further below, EPA is approving the reserved sustenance fishing right 

as a designated use for the tribal waters to which the right applies. Where the State adopts a new 

or revised WQS, EPA has the authority and the obligation under the CWA to review and 

determine whether such new or revised WQS is consistent with the CWA. If EPA disapproves, 

the CWA directs EPA to propose and promulgate a new or revised WQS unless the State adopts 

an adequate revision to protect the use. The CWA thus provides the mechanism to protect the 

sustenance fishing use and prevent interference with the Southern Tribes’ reserved fishing right. 

EPA’s oversight of Maine’s WQS is adequate to protect the Tribes’ right while maintaining the 

basic statutory grant of jurisdiction to Maine, including the authority to set WQS, as provided 

under MICSA in the first instance. 

2.3 The Relationship Among MISCA, Jurisdiction, and the Trust Responsibility 
13 

Several Tribes in Maine commented that it would be inconsistent with the federal government’s 

trust relationship with the Tribes for EPA to approve the State to set WQS for waters in the 

Tribes’ lands. On the other hand, the State argues that the trust relationship does not apply in the 

State because of MICSA. 

EPA has consistently maintained that there is a trust relationship between the federal government 

and the Tribes in Maine in the general sense that the Tribes are federally recognized, they have 

sovereign governments that EPA interacts with on a government-to-government basis, and EPA 

has a responsibility to consult with the Tribes to understand and consider their interests when 

EPA is making a decision that affects the Tribes. This general trust relationship, however, does 

not alter the jurisdictional framework Congress ratified in MICSA. MICSA impacts the 

jurisdictional relationship among the Tribes and the State, within which EPA works to address 

the Tribes’ interests as appropriate. It is consistent with the trust relationship for EPA to approve

the State’s authority to set WQS for waters in the Tribes’ lands, because MICSA has 

dramatically revised the jurisdictional framework within which the trust operates in Maine as 

compared to the customary jurisdictional framework that applies in Indian country outside 

Maine. EPA intends to continue to act consistently with the trust relationship, to consult with the 

Tribes, and to consider their interests as we oversee the State’s WQS under the CWA. 

2.4 The Penobscot Nation’s Application for Treatment in the Same Manner as a State 

On October 8, 2014, the Penobscot Nation submitted to EPA an application “to administer water 

quality standards program and for federal approval of the standards” covering the Main Stem of 

the Penobscot River from Indian Island north to the confluence of the east and west branches of 

the river. EPA is not acting today on the Nation’s application. EPA is only deciding today that 

the State of Maine has authority to set WQS for waters in Indian lands, and then acting on the 

State’s WQS as applied to those waters. The Nation’s application raises complicated issues that 

EPA will address in a separate decision. 

3 EPA’s Determination to Approve Classifications and Designated Uses for Waters in 

Indian Lands 

In Section 2, above, EPA focused on the settlement acts and judicial interpretation of those 

statutes to analyze Maine’s assertion of jurisdiction to set WQS in the waters in Indian lands. 

Having concluded that the State has jurisdiction to set those standards, EPA must now analyze 

whether the State’s WQS as applied to waters in Indian lands are approvable under the CWA. 

So the balance of this document will focus primarily on the requirements of the CWA, as applied 

to the unique circumstances EPA must address here where a state is setting WQS for waters in 

lands that Congress has set aside for federally recognized Indian tribes. 

The first step in developing and reviewing WQS under the CWA is to determine the uses of the 

waters to which the WQS apply. Here the State is not writing on a blank slate in the selection of 

uses for tribal waters. As described in detail in this section 3, EPA has concluded that the 

settlement acts operate to require Maine and the Agency to focus on the sustenance fishing use 

that federal and state law provide for the Tribes in Maine in waters in Indian lands. In light of 
14 

the sustenance fishing use, the CWA requires the State’s water quality criteria to protect that use 

as explained in section 4, below. 

3.1 Status of Previous State WQS as Applied to Waters in Indian Lands 

3.1.1 EPA’s Prior Decisions on Maine WQS 

Maine has periodically submitted new or revised WQS to EPA for review and approval or 

disapproval. Before 2004, EPA acted on those WQS without expressly considering or approving 

the State’s jurisdiction to establish WQS for waters in Indian lands or the sufficiency of the 

State’s WQS for such waters under the CWA. Since 2004, EPA has expressly stated, in all 

decisions that it made to approve or disapprove new or revised WQS, that its decisions applied 

only to Maine waters outside of Indian lands. 

3.1.2 EPA’s Approach to State Programs in Indian Country 

The State has commented to EPA that, prior to 2004, EPA approved state WQS submissions 

without reference to or exclusion of waters in tribal lands. From this the State infers that EPA 

approved the State’s WQS for waters in tribal lands prior to 2004. EPA disagrees with this 

inference. 

First, Maine did not obtain authority to regulate in tribal lands until Congress passed MICSA in 

1980. While the State asserted the authority to govern the Tribes prior to MICSA, the First 

Circuit’s decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 

(1st Cir. 1975), cast considerable doubt on that proposition, and the decision in Bottomly v. 

Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir. 1979), effectively foreclosed this argument. So 

any WQS that Maine submitted prior to MICSA’s passage could have no legal effect in tribal 

lands. At that point the State had no clear authority to set WQS in those waters. 

 

But even as to WQS that Maine submitted following the passage of MICSA in 1980, EPA’s 

position is that none of the State’s WQS, whether submitted prior to or following enactment of 

MICSA, were approved under the CWA for waters in Indian lands. Prior to the Agency’s 

decision today, EPA has never made a formal determination on the record expressly addressing 

either the State’s jurisdictional authority or the sufficiency under the CWA of the State’s WQS 

as applied to waters in Indian lands. 

Today’s decision demonstrates that in acting on new or revised state WQS for waters in Indian 

lands, EPA must consider the adequacy of such WQS to protect the uses in those specific waters. 

Where, as here, waters in Indian lands have a different designated use (i.e., sustenance fishing) 

than waters outside of Indian lands, the analysis of the adequacy of criteria will necessarily be 

different. It would be arbitrary for EPA to assume, without analysis, that if criteria are protective

for waters outside of Indian lands, they are also protective for waters in Indian lands. 

In addition, under basic principles of federal Indian law, states generally lack civil regulatory 

jurisdiction within Indian country as defined in 18 U.S.C. § 1151. Alaska v. Native Vill. Of 

Venetie Tribal Gov’t, 522 U.S. 520, 527 n.1. (1998) (“[g]enerally speaking, primary jurisdiction 
15 

over land that is Indian country rests with the Federal Government and the Indian Tribe 

inhabiting it, and not with the States.”). See also Okla. Tax Comm’n v. Sac and Fox Nation, 508 

U.S. 114, 128 (1993) (“[a]bsent explicit congressional direction to the contrary, we presume 

against a State’s having the jurisdiction to tax within Indian Country . . . .”). Thus, EPA cannot 

presume a state has authority to establish WQS or otherwise regulate in Indian country. Instead, 

a state must demonstrate its jurisdiction, and EPA must determine that the state has made the 

requisite demonstration and expressly determine that the state has authority, before a state can 

implement a program in Indian country.5

 Such a demonstration and approval of Maine’s 

authority to administer WQS in waters of Indian lands has not occurred prior to the decision EPA 

is making today. 6

Maine cites to several actions by EPA employees that, in the State’s view, indicate EPA’s 

recognition that state WQS approved before 2004 apply in at least some tribal waters. EPA 

notes that some of those actions applied to stretches of rivers that either included both tribal and 

state waters or that were then and continue to be the subject of disputes over whether they 

included both tribal and state waters. As a result, those actions were inherently ambiguous as to 

their relevance to the tribal portions of the waters. But the Agency concedes that in some 

instances the Agency appeared to assume, without any express consideration or decision 

regarding the jurisdictional or CWA issues, that state WQS applied in certain tribal waters. For 

example, there are instances when the Region asked Maine DEP to certify under section 401 of 

the CWA that NPDES permits for tribal facilities discharging into tribal waters complied with 

state WQS. Simply put, those prior actions were mistakes that do not affect this decision. At the 

time, EPA had made no finding that Maine had jurisdiction to adopt WQS for tribal waters and 

had not approved the State’s WQS for such waters. EPA notes that unexplained mistakes by 

mid-level Agency officials cannot unilaterally revise a considered Agency-wide policy. Puerto 

Rican Cement Co. v. EPA, 889 F.2d 292, 299 (1st Cir. 1989). 

3.2 EPA Approval of Water Classifications and Associated Designated Uses 

Many of the WQS revisions under review for approval or disapproval for waters in Indian lands 

are water quality criteria, and the CWA requires that criteria be protective of designated uses. In 

order to evaluate whether the submitted criteria are protective of designated uses, EPA must first 

approve designated uses for these waters. Accordingly, EPA also reviewed and is approving 

 

5

 Consistent with EPA’s responsibility to consult with Indian tribes about decisions affecting their interests, as 

embodied in the Agency’s 1984 Indian Policy and EPA’s more recent Tribal Consultation Policy, EPA would offer 

to consult with any Indian tribe in the context of an Agency determination that a state has authority to set standards 

in that tribe’s territory. Notably, no such consultations occurred in the context of EPA’s prior decisions on the 

State’s WQS submissions, further evidencing that the Agency’s prior approvals were not intended to extend to 

waters in Indian lands. 

6

 Indeed, as described above in the Agency’s analysis of the State’s jurisdictional authority to set WQS in Indian 

waters, EPA’s review and assessment of how Maine’s WQS affect tribal uses in Indian waters is an essential step in 

the argument that it is possible to reconcile the State setting WQS in Indian waters with the fishing rights that 

MICSA reserves to Tribes in Maine. Ignoring or side-stepping EPA’s role in overseeing Maine’s WQS submissions 

as they apply to Indian waters risks creating an irreconcilable conflict between the jurisdictional grant to the State in 

MICSA and the provision for Tribes in Maine to sustain themselves on the land base that the Maine settlement acts 

established for the Tribes. Respecting EPA’s oversight role effectively harmonizes those elements of the settlement 

acts in Maine. 
16 

Maine’s surface water classifications and corresponding designated uses, adopted and submitted 

to EPA for review to date7, for waters in Indian lands.8

The general classifications and their corresponding uses consist of the following: 

• 38 M.R.S. § 465(1.A) Class AA freshwater uses: drinking water after disinfection, 

fishing, agriculture, recreation in and on the water, navigation, and as habitat for fish 

and other aquatic life. The habitat must be characterized as free-flowing and natural. 

• 38 M.R.S. § 465(2.A) Class A freshwater uses: drinking water after disinfection; 

fishing; agriculture; recreation in and on the water; industrial process and cooling 

water supply; hydroelectric power generation, except as prohibited under Title 12, 

section 403; navigation; and as habitat for fish and other aquatic life. The habitat 

must be characterized as natural. 

• 38 M.R.S. § 465(3.A) Class B freshwater uses: drinking water supply after treatment; 

fishing; agriculture; recreation in and on the water; industrial process and cooling 

water supply; hydroelectric power generation, except as prohibited under Title 12, 

section 403; navigation; and as habitat for fish and other aquatic life. The habitat 

must be characterized as unimpaired. 

• 38 M.R.S. § 465(4.A) Class C freshwater uses: drinking water supply after treatment; 

fishing; agriculture; recreation in and on the water; industrial process and cooling 

water supply; hydroelectric power generation, except as prohibited under Title 12, 

section 403; navigation; and as a habitat for fish and other aquatic life. 

• 38 M.R.S. § 465-A(1.A) Class GPA lake and pond uses: drinking water after 

disinfection, recreation in and on the water, fishing, agriculture, industrial process and 

cooling water supply, hydroelectric power generation, navigation, and as habitat for 

fish and other aquatic life. The habitat must be characterized as natural. This section 

applies to great ponds (as defined in 38 M.R.S. § 480-B (5)), natural lakes and ponds 

less than 10 acres in size, and impoundments of rivers that are defined as great ponds 

pursuant to 38 M.R.S. § 480-B (5). 

• 38 M.R.S. § 465-B (1.A) Class SA estuarine and marine water uses: recreation in and 

on the water, fishing, aquaculture, propagation and harvesting of shellfish, navigation, 

and as habitat for fish and other estuarine and marine life. The habitat must be 

characterized as free-flowing and natural. 

• 38 M.R.S. § 465-B (2.A) Class SB estuarine and marine water uses: recreation in and 

on the water, fishing, aquaculture, propagation and harvesting of shellfish, industrial 

process and cooling water supply, hydroelectric power generation, navigation, and as 

habitat for fish and other estuarine and marine life. The habitat must be characterized 

as unimpaired. 

• 38 M.R.S. § 465-B (3.A) Class SC estuarine and marine water uses: recreation in and 

on the water, fishing, aquaculture, propagation and restricted harvesting of shellfish, 

 

7

 This includes the addition of “agriculture” as a designated use for freshwaters, submitted to EPA on August 26, 

2003. 

8

 There are other provisions of Maine’s WQS that EPA is not approving or disapproving at this time because they 

are not directly related to the scope of this decision, which is responding to new and revised WQS submitted to EPA 

from 2003 to 2014. These remaining provisions include, for example, definitions, antidegradation policies, and 

WQS implementation policies in regulation and statute. EPA will review those elements in the coming months and 

make decisions accordingly. 
17 

industrial process and cooling water supply, hydroelectric power generation, 

navigation and as a habitat for fish and other estuarine and marine life. 

Waters throughout Maine are identified by classification in 38 M.R.S. § 467 (classifications of 

major river basins), § 468 (classifications of minor drainages), and § 469 (classifications of 

estuarine and marine waters), which results in the assignment of designated uses for each 

waterbody. 

Each of the classification categories identified above contains designated uses that are consistent 

with the requirements of Section 303(c)(2)(A) of the Clean Water Act and 40 C.F.R. § 131.6(a). 

In addition, EPA has concluded that the classifications as applied to specific waters in Indian 

lands are reasonable. Therefore, EPA is approving the general classifications and associated 

designated uses in 38 M.R.S. § 465(1.A), (2.A), (3.A), and (4.A); § 465-A(1.A) (and the 

definition of “great ponds” in 38 M.R.S. § 480-B (5)); and § 465-B(1.A), (2.A), and (3.A); as 

well as the classification of specific waters in 38 M.R.S. § 467, § 468, and § 468, as applied to 

waters in Indian lands, because they are consistent with Sections 101(a)(2) and 303(c)(2)(A) of 

the Clean Water Act and 40 C.F.R. §131.10(a). EPA is including in its approval of specific 

waterbody classifications the reclassifications, submitted to EPA on December 7, 2009, of Otter 

Creek, a tributary of Seboeis Stream, and Alder Stream from Class B to Class A; and of Grand 

Falls Flowage between Route 1(Princeton and Indian Township) and Black Cat Island from 

Class B to Class GPA. 

3.3 EPA’s Identification of the “Fishing” Designated Use as “Sustenance Fishing” in Waters 

in Indian Lands in Maine 

3.3.1 The Purpose of the Tribal Land Base and Tribal Sustenance Fishing in Maine 

The settlement acts in Maine include extensive provisions to confirm and expand the Tribes’ 

land base, and the legislative record makes it clear that a key purpose behind that land base is to 

preserve the Tribes’ culture and support their sustenance practices. MICSA section 1724 

establishes a trust fund to allow the Southern Tribes and the Maliseets to acquire land to be put 

into trust. In addition, the Southern Tribes’ reservations are confirmed as part of their land base. 

30 M.R.S. § 6205(1)(A) and (2)(A). MICSA combines with MIA sections 6205 and 6205-A to 

establish a framework for taking land into trust for those three Tribes, and laying out clear 

ground rules governing any future alienation of that land and the Southern Tribes’ reservations. 

Sections 4(a) and 5 of the ABMSA and 7204 of the state MSA accomplish essentially the same 

result for the Micmacs, consistent with the purpose of those statutes to put that Tribe in the same 

position as the Maliseets. 

EPA has concluded that one of the over-arching purposes of the establishment of this land base 

for the Maine Tribes was to ensure their continued opportunity to engage in their unique cultural 

practices to maintain their existence as a traditional culture. An important part of the Maine 

Tribes’ traditional culture is their sustenance life ways. The legislative history for MICSA 

makes it clear that one critical purpose for assembling the land base for the Tribes in Maine was 

to preserve their culture. The Historical Background in the Senate Report for MICSA opens with 

the observation that “All three Tribes [Penobscot, Passamaquoddy and Maliseet] are riverine in 
18 

their land-ownership orientation.” Sen. Rep. No. 96-957, at 11. The Report’s “Special Issues” 

section specifically refutes the concern that: 

The Settlement will lead to acculturation of the Maine Indians. – Nothing in the 

settlement provides for acculturation, nor is it the intent of Congress to disturb the 

cultural integrity of the Indian people of Maine. To the contrary, the Settlement offers 

protections against this result being imposed by outside entities by providing for tribal 

governments which are separate and apart from the towns and cities of the State of Maine 

and which control all such internal matters. The Settlement also clearly establishes that 

the Tribes in Maine will continue to be eligible for all federal Indian cultural programs. 

Id. at 17. As the Tribes have extensively documented in their comments, their culture relies 

heavily on sustenance practices, including sustenance fishing. So if a purpose of MICSA is to 

avoid acculturation and protect the Tribes’ continued political and cultural existence on their 

land base, then a key purpose of that land base is to support those sustenance practices. 

As explained in more detail below, MICSA, MIA, ABMSA, and MSA include very different 

provisions governing sustenance practices, including fishing, depending on the type of Indian 

lands involved. But each set of provisions in its own way is designed to make a homeland for 

these Tribes where they may safely practice their sustenance life ways. 

3.3.1.1 Southern Tribes’ Sustenance Fishing Right Reserved in Their Reservations in 

MIA/MICSA 

If there were any doubt that sustenance practices are central to tribal culture, MICSA ratifies the 

MIA’s reservation of the Southern Tribes’ right to take fish for their individual sustenance: 

SUSTENANCE FISHING WITHIN THE INDIAN RESERVATIONS. Notwithstanding 

any rule or regulation promulgated by the commission or any other law of the State, the 

members of the Passamaquoddy Tribe and the Penobscot Nation may take fish, within the 

boundaries of their respective Indian reservations, for their individual sustenance subject 

to the limitations of subsection 6. 

30 M.R.S. § 6207(4). Under this section, “fish” is defined as “a cold blooded completely aquatic 

vertebrate animal having permanent fins, gills and an elongated streamlined body usually 

covered with scales and includes inland fish and anadromous and catadromous fish when in 

inland water.” 30 M.R.S. § 6207(9). 

The only limitation on the Southern Tribes’ right to take fish for their individual sustenance on 

their reservations is the State’s ability to limit the take based on a finding that the Tribes’ fishing 

practices are threatening stocks outside the Tribes’ reservations in a process in which the State 

carries the burden of proof. 30 M.R.S. § 6207(6). To date the State has made no such 

determination. So a plain language reading of this provision entitles the Southern Tribes to take 

as much fish as they deem necessary to sustain individual members. 
19 

The legislative history for MIA makes it clear that the Maine legislature intended to continue and 

ratify the State’s practice of not regulating the Southern Tribes’ sustenance fishing practices. 

See transcript of the public hearing held on March 28, 1980 by the Maine Legislature’s Joint 

Select Committee on the Maine Indian Claims Settlement at 55-56. The special issues section of 

the Senate Report on MICSA confirms that the intent of this provision is to shield the Southern 

Tribes’ right to take fish from the prospect that the State might someday interfere with it. By 

responding to a rhetorical assertion (in italics below), the report confirms that the Southern 

Tribes have a right to take fish that is subject to state regulation only under very limited 

circumstances: 

Subsistence hunting and fishing rights will be lost since they will be controlled by the 

State of Maine under the Settlement. – Prior to the settlement, Maine law recognized the 

Passamaquoddy Tribe’s and Penobscot Nation’s right to control Indian subsistence 

hunting and fishing within their reservations, but the State of Maine claimed the right to 

alter or terminate these rights at any time. Under Title 30, Sec. 6207 as established by the 

Maine Implementing Act, the Passamaquoddy Tribe and the Penobscot Nation have the 

permanent right to control hunting and fishing not only within their reservations, but 

insofar as hunting and fishing in certain ponds is concerned, in the newly-acquired Indian 

territory as well. The power of the State of Maine to alter such rights without the consent 

of the affected tribe or nation is ended by Sec. 6(e)(1) of S. 2829. The State has only a 

residual right to prevent the two tribes from exercising their hunting and fishing rights in 

a manner which has a substantially adverse effect on stocks in or on adjacent lands or 

waters. This residual power is not unlike that which other states have been found to have 

in connection with federal Indian treaty hunting and fishing rights. The Committee notes 

that because of the burden of proof and evidence requirements in Title 30, Sec. 6207(6) 

as established by the Maine Implementing Act, the State will only be able to make use of 

this residual power where it can be demonstrated by substantial [evidence] that the tribal 

hunting and fishing practices will or are likely to adversely affect wildlife stock outside 

tribal lands. 

Sen. Rep. No. 96-957, pp. 16-17. Importantly, MIA section 6207 did not create a fishing right 

for the Southern Tribes. Rather it confirmed an aboriginal right the Tribes have continuously 

exercised, and shielded that right from state regulation absent a finding of depletion. DOI’s legal 

opinion confirms that this statutorily reserved fishing right is rooted in treaty guarantees that 

were upheld through the settlement acts. 

The Senate Committee’s discussion of the similarity between MIA section 6207 and the structure 

of more traditional Indian treaty hunting and fishing rights is instructive. Essentially, the State of 

Maine has adopted into state law and Congress has ratified a reserved fishing right like the rights 

reserved to other Indian tribes by treaties, executive orders, or other statutes. It is axiomatic that 

the settlement acts in Maine significantly revised the customary formulae of federal Indian law 

that apply outside the State. Akins, 130 F.3d at 484. But it is equally important to recognize 

those elements of the settlement acts where both the state and federal governments made careful 

provision for tribal rights that mirror those more commonly seen elsewhere in Indian country. 

See Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 

U.S. 658, 674 (1979) (Stevens Treaties explicitly reserved to the Pacific Northwest tribes “’[t]he 
20 

right of taking fish, at all usual and accustomed grounds and stations . . . in common with all 

citizens of the Territory’”). The Southern Tribes’ reserved aboriginal right to take fish for their 

individual sustenance within their reservations is such a right. 

3.3.1.2 Federal Law Framework for Sustenance Fishing in Trust Lands 

Similarly, to understand how the Maine Tribes’ sustenance fishing practices are provided for in 

their newly acquired trust lands, it is helpful to review the federal law background against which 

Congress and the State of Maine were legislating when they provided for land to be taken into 

trust for the benefit of the Maine Tribes. Courts have found that when Congress sets aside land 

for a fishing tribe, it implicitly grants to the tribe the right to carry out its traditional fishing 

practices on that land. See Menominee v. U.S., 391 U.S. 404, 405-406 (1968) (holding that lands 

acquired for the Menominee Tribe included the implicit right to hunt and fish on those lands); 

Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir. 1995) (recognizing the doctrine “that the grant 

of hunting and fishing rights is implicit in the setting aside of a reservation ‘for Indian 

purposes.’”); see also Katie John v. U.S., 720 F.3d 1214, 1230 (9th Cir. 2013) (Reserved water 

rights “are created when the United States reserves land from the public domain for a particular 

purpose, and they exist to the extent that the waters are necessary to fulfill the primary purposes 

of the reservation.”). 

Courts have found an implicit fishing right based on legislative history indicating that, in setting 

aside land for a tribe, Congress intended to preserve a tribe’s fishing culture/practices. See 

Menominee, 391 U.S. at 405 (“The essence of the Treaty of Wolf River was that the Indians were 

authorized to maintain on the new lands ceded to them as a reservation their way of life which 

included hunting and fishing.”); Parravano, 70 F.3d at 542 (In enacting the Hoopa-Yurok 

Settlement Act, “[o]ne of the concerns of Congress at the time” was “to protect the Tribes’ 

fisheries.”); see also id. at 546 (“Although the 1988 Hoopa-Yurok Settlement Act did not 

explicitly set aside fishing rights, it did make clear that partitioning would not dispossess the 

Tribes of their assets. The legislative history of the 1988 Act indicates that Congress was aware 

that each Tribes’ interests in their salmon fisheries was one of its principal assets.”). As 

explained in greater detail below, there is such legislative history here. 

There is an important distinction between the Southern Tribes’ aboriginal fishing right, which 

Congress explicitly reserved on those Tribes’ reservations, and tribal sustenance fishing on the 

trust lands, which Congress provided for based on its demonstrated intent to preserve the Tribes’ 

riverine culture. EPA is not determining that the Tribes in Maine have an aboriginal fishing right 

in their trust lands. The Agency acknowledges there is dispute over the scope of the Tribes’ 

aboriginal resource rights following enactment of MICSA. See 25 U.S.C. §§ 1722(b) and 

1723(b) and Assessment of the Intergovernmental Saltwater Fisheries Conflict between 

Passamaquoddy and the State of Maine, Maine Indian Tribal-State Commission: Special Report 

2014/1 (June 17, 2014) at 7. 

But regardless of the status of aboriginal fishing rights outside the Southern Tribes’ reservations, 

it is possible for Congress to make provision for tribal sustenance fishing on trust lands, not 

based on the reservation of aboriginal rights, but based on Congressional intent to establish a 

land base for a tribe in order to sustain its unique culture. As described in detail below, EPA has 
21 

determined that Congress did just that in the Maine settlement acts, and when Congress did so, it 

acted against the backdrop of the principles outlined in the cases above. The legislative record 

regarding the trust land provisions in MIA, MICSA, MSA and ABMSA demonstrate Congress’s 

intent to provide the Tribes with the opportunity to exercise their traditional sustenance lifeways, 

including traditional sustenance fishing in waters of tribal trust lands. 

3.3.1.2.1 Sustenance Fishing in the Trust Lands of the Southern Tribes 

Both MICSA and MIA make it clear that the land acquisition fund for the benefit of the 

Passamaquoddy and Penobscot Tribes was established to ensure these Tribes not only had a land 

base to occupy, but also access to natural resources to sustain their continued existence as a 

unique culture, including their ability to exercise their fishing rights. “The Secretary is 

authorized and directed to expend . . . the land acquisition fund for the purpose of acquiring land 

or natural resources for the Passamaquoddy Tribe, [and] the Penobscot Nation . . . and for no 

other purpose.” 25 U.S.C. § 1724(b) (emphasis added). “Land or natural resources” are defined 

to include “water and water rights, and hunting and fishing rights.” 25 U.S.C. § 1722(b).9

 

As excerpted more fully above, MICSA’s legislative history also makes it clear that the Southern 

Tribes would be engaged in sustenance fishing in the newly-acquired trust lands: 

 

Under Title 30, Sec. 6207 as established by the Maine Implementing Act, the 

Passamaquoddy Tribe and the Penobscot Nation have the permanent right to control 

hunting and fishing not only within their reservations, but insofar as hunting and fishing 

in certain ponds is concerned, in the newly-acquired Indian territory as well. 

Sen. Rep. No. 96-957, pp. 16-17 (emphasis added). The legislative history of MIA also makes it 

clear that the Maine Legislature understood that MIA was designed to accommodate sustenance 

fishing practices in the Southern Tribes’ trust lands. See transcript of the public hearing held on 

March 28, 1980 by the Maine Legislature’s Joint Select Committee on the Maine Indian Claims 

Settlement at 151-152.10 So it is clear that in creating the authority to take land into trust for the 

Southern Tribes, Congress understood that MIA made provision for the Tribes to engage in 

sustenance fishing in those trust lands and intended the trust lands to provide a base for the 

Tribes to engage in sustenance practices. 

As recognized by Congress in MICSA’s legislative history, the Southern Tribes’ control of 

fishing in certain trust waters was specifically codified in MIA. Section 6207(1) provides that 

 

9

 Unlike MICSA, when MIA refers to Penobscot and Passamaquoddy trust lands, it uses the term “land acquired by 

the secretary [of Interior] for the benefit” of each tribe, without reference to natural resources. Compare 25 U.S.C. 

§ 1724(d) with 30 M.R.S. § 6205(1)(B) and (2)(B). As explained in the section above, other provisions of MIA 

make it clear that the statute anticipated that those lands would include the attendant natural resources acquired with 

the land, especially fishing rights. Moreover, to the extent that this differing terminology suggests a conflict 

between MICSA and MIA in defining the scope of the tribes’ interest in their trust lands and natural resources, the 

provisions of MICSA would control. 25 U.S.C. 

§ 1735(a). 

10 “[The Tribes can adopt ordinances with respect to . . . fishing but only on ponds of less than ten acres in size. 

Those ordinances have to be equally applicable to Indians and non-Indians except that the Indians can make special 

provisions for sustenance hunting . . .“ and fishing per MIA § 6207(1). Id. at 151. 
22 

the Southern Tribes have exclusive authority to enact ordinances regulating the taking of fish on 

ponds of less than ten acres in their trust lands. As with the Southern Tribes’ fishing right in 

their reservations, this authority is subject only to the State’s authority to limit the take after 

carrying the burden of proof that the Tribes are depleting fish stocks. MIA specifically 

anticipates that any tribal ordinances regulating fishing in these waters “may include special 

provisions for the sustenance of the individual members of the Passamaquoddy Tribe or the 

Penobscot Nation.” Id. 

As to greater ponds and rivers and streams in or along the Southern Tribes’ trust lands, MIA also 

codifies the understanding that the Tribes would be engaged in sustenance fishing in those 

waters. MIA creates the Maine Indian Tribal-State Commission (defined as the “commission” 

30 M.R.S. § 6203(1)), made up of representatives appointed by the State and the Southern 

Tribes. 30 M.R.S. § 6212. MIA provides that commission the exclusive authority to promulgate 

fishing rules in these waters. When it does so “the commission shall consider and balance” 

several factors, including “the needs or desires of the Tribes to establish fishery practices for the 

sustenance of the tribes or to contribute to the economic independence of the tribes, [and] the 

traditional fishing techniques employed by and ceremonial practices of Indians in Maine.” 30 

M.R.S. § 6207(3). Importantly, as analyzed in the record supporting this decision, none of the 

fishing regulations adopted by the commission would impinge on the ability of the Tribes to 

sustain themselves on fish taken from these waters.11

MICSA and MIA combine to authorize the establishment of trust lands for the Southern Tribes 

to provide a land base in which the Tribes can exercise their sustenance fishing practices. As 

compared with the sustenance fishing right reserved to the Southern Tribes within their 

reservations, MICSA and MIA allow for a greater, although still sharply limited, role for the 

State, through the commission, to participate in the development of fishing regulations on certain 

of the waters in the trust lands. But in exercising even that authority, the commission is charged 

with considering the Tribes’ sustenance fishing practices. Therefore, it is clear that a critical 

purpose behind establishing the Southern Tribes’ trust lands is to give the Tribes an opportunity 

to engage in sustenance fishing. 

3.3.1.2.2 Sustenance Fishing in the Trust Lands of the Northern Tribes 

Compared with the Southern Tribes’ territories, the arrangement for the Northern Tribes’ trust 

lands provides for more direct state regulation of fishing practices. Nevertheless, it appears 

Congress intended these trust lands to preserve the Northern Tribes’ unique cultures as well. So 

the Northern Tribes’ trust lands provide a land base in which the Tribes are able to exercise 

sustenance fishing practices to the extent consistent with the legal limits on their fishing. Again, 

similar to the situation for the Southern Tribes’ trust lands, EPA is not concluding that there is an 

aboriginal fishing right reserved to the Northern Tribes on their trust lands. But the Agency does 

conclude that there is sufficient evidence in the legislative record to indicate that Congress 

intended the Northern Tribes to engage in sustenance practices on their trust lands to the extent 

they could. 

 

11 See memorandum from Ralph Abele to the file for this decision, regarding Effects of Maine Fishing Regulations 

on Sustenance Fishing by Maine Tribes, dated January 30, 2015. 
23 

Authority to establish the Northern Tribes’ trust lands came in several rounds of legislation. The 

first involved the Maliseets, who came to the negotiations around MIA and MICSA late in the 

legislative process. In 1980, MICSA provided that “[t]he Secretary is authorized and directed to 

expend . . . the land acquisition fund for the purpose of acquiring land or natural resources for the 

. . . the Houlton Band of Maliseet Indians and for no other purpose.” 25 U.S.C. § 1724(b) 

(emphasis added). “Land or natural resources” is defined to include “water and water rights, and 

hunting and fishing rights.” 25 U.S.C. § 1722(b) (emphasis added). 

At the time Congress authorized land to be taken into trust for the Maliseets, it specifically 

acknowledged that “[a]ll three tribes [Penobscot, Passamaquoddy and Maliseet] are riverine in 

their land-ownership orientation.” Sen. Rep. No. 96-957, at 11. Congress also specifically noted 

that one purpose of MICSA was to avoid acculturation of the Maine Tribes: 

The Settlement will lead to acculturation of the Maine Indians. – Nothing in the 

settlement provides for acculturation, nor is it the intent of Congress to disturb the 

cultural integrity of the Indian people of Maine. To the contrary, the Settlement offers 

protections against this result being imposed by outside entities by providing for tribal 

governments which are separate and apart from the towns and cities of the State of Maine 

and which control all such internal matters. The Settlement also clearly establishes that 

the Tribes in Maine will continue to be eligible for all federal Indian cultural programs. 

Id. at 17. Congress’s purpose in providing for the establishment of the Maliseet trust lands was 

to provide a land base on which the Tribe could maintain its “cultural integrity.” The Maliseets 

have submitted extensive comments documenting the sustenance fishing practices central to the 

Tribe’s culture. 

In 1981, the Maine Legislature added provisions to MIA to correspond to the action Congress 

took in MICSA to recognize the Maliseets and authorize trust lands to provide a resource base 

for the Tribe. In contrast to MIA’s language describing the Southern Tribes’ trust lands, the 

statute explicitly defines the Maliseet trust lands to include natural resources. 30 M.R.S.A §§ 

6203(2-A) (“’Houlton Band Trust Land’ means land or natural resources acquired by the 

secretary in trust for the Houlton Band of Maliseet Indians . . ..”); see also § 6205-A (“Land or 

natural resources” may be taken into trust for the Maliseets). As in MICSA, MIA makes it clear 

that natural resources acquired for the Maliseets may include fishing rights. Id. at § 6203(3) 

(“’Land or other natural resources’ means any real property or other natural resources . . . 

including, but without limitation, . . . water and water rights and hunting and fishing rights.”) 

It was not until 1989 that the Micmacs negotiated a settlement with Maine as codified in the 

MSA. Similar to the settlement with the Maliseets, MSA provides that the Micmacs’ trust lands 

include natural resources. 30 M.R.S. § 7202(2) (“’Aroostook Band Trust Land’ means land or 

natural resources acquired by the secretary in trust for the Aroostook Band of Micmacs . . ..”). 

MSA further defines natural resources to include fishing rights. Id. at § 7202(3) (“’Land or other 

natural resources’ means any real property or other natural resources . . . including, but without 

limitation . . . water and water rights and hunting and fishing rights.”) 
24 

In 1991, Congress passed ABMSA, one key purpose of which was to ratify the MSA. ABMSA 

§ 1(b)(4). Congress specifically found and declared that: 

It is now fair and just to afford the Aroostook Band of Micmacs the same settlement 

provided to the Houlton Band of Maliseet Indians for the settlement of that Band’s 

claims, to the extent they would have benefited from inclusion in the Maine Indian 

Claims Settlement Act of 1980. 

Id. at § 1(a)(5). To that end, Congress established the Aroostook Band of Micmacs Land 

Acquisition Fund, id. at § 4(a), and provided that: 

the Secretary is authorized and directed to expend, at the request of the Band, the 

principal of, and income accruing on, the Land Acquisition Fund for the purposes of 

acquiring land or natural resources for the Band and for no other purposes. Land or 

natural resources acquired within the State of Maine with funds expended under the 

authority of this subsection shall be held in trust by the United States for the benefit of 

the Band. 

Id. at § 5(a). ABMSA defines “Band Trust Land” to mean “land or natural resources acquired by 

the Secretary of the Interior and held in trust by the United States for the benefit of the Band” 

and defines “land or natural resources” to mean “any real property or natural resources, or any 

interest in or right involving any real property or natural resources, including (but not limited to) 

. . . water and water rights, and hunting and fishing rights.” Id. at § 3(3) and (4). As with the 

Maliseets, Congress clearly intended that the Micmacs’ trust lands could encompass fishing 

rights. 

The Senate conference report from the Select Committee on Indian Affairs on ABMSA indicates 

that Congress intended to remedy the plight of the Micmacs, who had been deprived of a land 

base on which to secure the Tribe’s continuation as a unique culture. “As Maine’s only Native 

American community without a tribal land base, the Aroostook Band of Micmacs faces major 

challenges in its quest for cultural survival.” 102 S. Rpt 136 (1991). The report describes the 

cultural practices of the band, including its historic homeland range along the west bank of the 

St. John River. “The ancestors of the Aroostook Micmac made a living as migratory hunters, 

trappers, fishers and gatherers until the 19th century.” It goes on to note that “[t]oday, without a 

tribal subsistence base of their own, most Micmacs in Northern Maine occupy a niche at the 

lowest level of the social order.” The discussion of the Band’s history ends by observing: 

It is remarkable that the Aroostook Band of Micmac Indians, as a long disenfranchised 

and landless native group, has not withered away over the centuries. To the contrary, this 

community in Northern Maine has demonstrated an undaunted collective will toward 

cultural survival. 

As with the Maliseets, it is clear Congress intended to establish a land base for the Micmacs that 

would enable the Tribe to secure its “cultural survival” and avoid acculturation. Congress 

intended for the Northern Tribes’ trust lands to provide a “subsistence base” on which the Tribes 
25 

could assure their continued existence as a unique culture. And Congress was aware that part of 

that subsistence base for the Northern Tribes was their sustenance fishing practices. 

While Congress intended that the Indian lands in Maine provide a land base to support all the 

Tribes’ sustenance practices, it ratified dramatically different regulatory frameworks within 

which the Southern and Northern Tribes could operate in exercising those practices. In their 

reservations and lesser ponds in their trust lands, the Southern Tribes are substantially free from 

state fishing regulations, and elsewhere in their trust lands any regulation of the Southern Tribes’ 

fishing must consider their sustenance practices. As explained in the discussion of the State’s 

jurisdictional authority above, the Northern Tribes and their trust lands are subject to the laws of 

the State, including the regulation of natural resources, which includes fishing rights. So unlike 

the Southern Tribes, the ability of the Northern Tribes to exercise their sustenance fishing 

practices is potentially subject to regulation directly under state law. As DOI’s legal opinion 

explains, the Northern Tribes’ trust lands include fishing rights appurtenant to those land 

acquisitions, which are subject to state regulation. 

But this jurisdictional arrangement does not alter the fact that Congress established the Northern 

Tribes’ trust lands for the purpose of providing these Tribes a land base on which to exercise 

their sustenance practices to the extent possible. Finding that state law applies to the Northern 

Tribes’ fishing rights does not answer the question how those Tribes intend to use the waters on 

their trust lands consistent with the purpose of setting aside their land base. And the state law 

applicable to the Northern Tribes’ fish take makes it clear that there are generous take limits that 

allow a catch sufficient to support sustenance fishing. As analyzed in the review of state fishing 

regulations supporting this decision, it appears state fishing regulations applicable to the 

Northern Tribes’ trust lands do not impose limits that would prevent individual members of the 

Northern Tribes from taking fish sufficient to support a sustenance diet.12 Further, under state 

law, the Department of Inland Fisheries and Wildlife has authority to set take limits on fisheries 

for the purposes of their preservation, protection, enhancement and use as well as the 

propagation of fish for the effective management of inland fisheries resources in public waters of 

the State. 12 M.R.S. § 10053.13 While this regulatory process does not include the same kind of 

procedural and burden of proof protections MIA provides for the Southern Tribes’ fishing rights, 

it still requires the State to have a legitimate, non-arbitrary reason for limiting the take in the 

Northern Tribes trust lands based on the need to preserve and protect state fisheries. So as 

provided under state law, there appears to be ample ability for the Northern Tribes to fish for 

their sustenance in tribal waters associated with their trust lands. 

3.3.1.3 Passamaquoddy Marine Sustenance Fishing 

The Passamaquoddy Tribe’s Pleasant Point reservation is located on marine, not inland, waters. 

There is a dispute among the Tribe, the State, and the commission about whether the Tribe’s 

aboriginal right to take fish in marine waters survived the passage of MICSA. See 25 U.S.C. §§ 

1722(b) and 1723(b) and Assessment of the Intergovernmental Saltwater Fisheries Conflict 

between Passamaquoddy and the State of Maine, Maine Indian Tribal-State Commission: Special 

 

12 See memorandum from Ralph Abele to the file for this decision, regarding Effects of Maine Fishing Regulations 

on Sustenance Fishing by Maine Tribes, dated January 30, 2015. 

13 See memorandum from Greg Dain, re: Maine Fishing Regulation, December 23, 2014. 
26 

Report 2014/1 (June 17, 2014) at 7. EPA is taking no position at this time as to the Tribes’ 

aboriginal rights to take fish in marine waters or the scope of the sustenance fishing right 

codified in MIA section 6207 in marine waters. Nonetheless, the marine waters that are part of 

the Pleasant Point reservation serve a function in supporting the sustenance of the Tribe identical 

to the inland waters in the Tribe’s reservation and trust lands. 

First, Congress understood that the Passamaquoddy Tribe exercised subsistence practices on its 

reservations, including the Pleasant Point Reservation. The Senate Report’s discussion of 

Special Issues noted that “[p]rior to the settlement, Maine law recognized the Passamaquoddy 

Tribe’s and Penobscot Nation’s right to control Indian subsistence hunting and fishing within 

their reservations, but the State of Maine claimed the right to alter or terminate these rights at any

time.” As quoted more extensively above, the Senate Report then goes on to describe in detail 

MIA’s provisions for the reserved sustenance fishing right of the Southern Tribes. Sen. Rep. No. 

96-957 at 16-17. While some dispute whether the Southern Tribes’ sustenance fishing extends 

into marine waters, at a minimum Congress understood that the Passamaquoddy Tribe fished for 

its sustenance on its reservation and that the State had accommodated that practice under state 

law. 

Notably, Maine has continued its practice of recognizing and providing for the Passamaquoddy 

Tribe’s sustenance marine fishing practices under state law. In 2013, the State codified a “tribal 

exemption” from otherwise applicable state fishing regulation of marine species for all four 

Indian Tribes in Maine to exercise a “sustenance use if the tribal member holds a valid 

sustenance fishing license issued by the tribe, nation or band . . ..” That same subsection goes on 

to define “sustenance use” as: 

. . . all noncommercial consumption or noncommercial use by any person within 

Passamaquoddy Indian territory, as defined in Title 30, section 6205, subsection 1, 

Penobscot Indian territory, as defined in Title 30, section 6205, subsection 2, or 

Aroostook Band Trust Land, as defined in Title 30, section 7202, subsection 2, or 

Houlton Band Trust Land, as defined in Title 30, section 6203, subsection 2-A, or at any 

location within the State by a tribal member, by a tribal member's immediate family or 

within a tribal member's household. 

12 M.S.A. § 6302-A(2)(emphasis added). This section imposes seasonal limits on the taking of 

sea urchins and limits on the number of lobster traps used to harvest lobsters for sustenance use. 

But it is a clear acknowledgement of and provision for the Passamaquoddy Tribe to take marine 

species for their sustenance “within Passamaquoddy Indian territory” as defined in MIA, which 

includes the Tribe’s reservations. 

Again, EPA acknowledges that there is a current dispute about the extent of the State’s authority 

to regulate the Tribes’ marine fishing practices. In citing section 6302-A, EPA does not take a 

position on the merits of that dispute. EPA is concluding, however, that even if EPA accepts the 

State’s position on its ability to regulate the Passamaquoddy Tribe’s marine fishing practices, 

state law makes ample provision for sustenance fishing on the Tribe’s reservation. Therefore, as 

with the Northern Tribes’ trust lands, even if the State has authority to regulate the Tribe’s take 

of marine species, EPA concludes that one important purpose of the Tribe’s reservation is to 
27 

serve as a land base for the Tribe’s exercise of sustenance practices at least to the extent 

consistent with Maine law regulating the taking of fish. And consistent with that Maine law, the 

Tribe can consume sufficient marine species to sustain themselves under section 6302-A. 

3.3.2 Purpose of MIA, MICSA, MSA, ABMSA and Water Quality

As explained above, all four settlement acts in Maine provide for the Tribes to exercise 

sustenance fishing practices on waters in Indian lands in Maine. The statutory mechanism 

supporting this conclusion is quite different depending on which element of Indian lands is 

involved. But the fundamental conclusion that Congress understood and intended that the Tribes 

be able to sustain their unique cultures and sustain themselves on Indian lands in Maine is clear. 

EPA concludes that the purpose to which Congress dedicated these Indian lands has important 

implications for water quality regulation under the CWA. Some in Maine have argued that the 

fishing right reserved to the Southern Tribes in their reservations is simply an exception from 

otherwise applicable state creel limits, but has no bearing on whether the water supporting that 

fishing right must be clean enough to ensure that the fish that tribal members are consuming is 

safe to eat. EPA does not agree with this narrow approach to the relationship between the 

provisions for tribal sustenance practices on the one hand and water quality on the other. 

Fundamentally, the Tribes’ ability to take fish for their sustenance under the Maine settlement 

acts would be rendered meaningless if it were not supported by water quality sufficient to ensure 

that tribal members can safely eat the fish for their own sustenance. 

There are several examples of the courts finding that fishing rights for tribes encompass 

subsidiary rights that are not explicitly included in treaty or statutory language, but are 

nonetheless necessary to render those rights meaningful. One line of cases focuses on the tribes’ 

ability to access fish. See, e.g., United States v. Winans, 198 U.S. 371, 384 (1905) (tribe must be 

allowed to cross private property to access traditional fishing ground); Kittitas Reclamation 

District v. Sunnyside Valley Irrigation District, 763 F.2d 1032, 1033-34 (9th Cir. 1985) (tribe’s 

fishing right protected by enjoining water withdrawals that would destroy salmon eggs before 

they could hatch); Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Mich. 

Dept of Nat. Resources, 141 F.3d 635 (6th Cir. 1989) (treaty right to fish commercially in the 

Great Lakes found to include a right to temporary mooring of treaty fishing vessels at municipal 

marinas because without such mooring the Indians could not fish commercially). 

Another line of cases focuses on water quantity sufficient to support fish habitat. In United 

States v. Adair, the Ninth Circuit held that the tribe’s fishing right implicitly reserved sufficient 

waters to “secure to the Tribe a continuation of its traditional . . . fishing lifestyle.” 723 F .2d 

1394, 1409-10 (9th Cir. 1983). See also Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 

-48 (9th Cir. 1981) (implying reservation of water to preserve tribe's replacement fishing 

grounds); Winters v. United States, 207 U.S. 564, 576 (1908) (express reservation of land for 

reservation impliedly reserved sufficient water from the river to fulfill the purposes of the 

reservation); Arizona v. California, 373 U.S. 546, 598-601 (1963) (creation of reservation 

implied intent to reserve sufficient water to satisfy present and future needs). 
28 

The preceding cases focus on fishing rights, and the attendant or implicit requirement that those 

fishing rights not be denied through collateral action impairing that right. Analogously, when 

diminished water quality has hindered tribal uses of water outside the fishing context, courts 

have held in favor of tribes and found that a right to put water to use for a particular purpose 

must include a subsidiary right to water quality sufficient to permit the protected water use to 

continue. This occurred in an Arizona case, United States v. Gila Valley Irrigation District, in 

which farmers whose properties were located upstream from an Indian reservation were required 

to take steps to decrease the salinity of the river reaching the tribe’s reservation so that “the Tribe 

receives water sufficient for cultivating moderately salt-sensitive crops.” 920 F. Supp. 1444, 

1454-56 (D. Ariz. 1996), aff’d, 117 F. 3d 425 (9th Cir. 1997). 

So there is precedent for the proposition that, when Congress identifies and provides for a 

particular purpose or use of specific Indian lands, an Agency should consider whether its actions 

have an impact on a tribe’s exercise of that purpose or use and, to the extent possible, ensure that 

its actions protect that purpose or use. If a tribe could not survive on its land base without water,

or water clean enough to farm, for example, courts have recognized that the purpose of that 

reservation or trust land would be entirely defeated. So too here, it would defeat the purpose of 

MIA, MICSA, MSA and ABMSA if the Maine Tribes cannot safely sustain themselves from the 

fish they can catch from their waters. DOI’s legal opinion concludes that “fundamental, longstanding tenets of federal Indian law support the interpretation of tribal fishing rights to include 

the right to sufficient water quality to effectuate the fishing right.” If EPA were to ignore the 

impact that water quality, and specifically water quality standards, could have on the Tribes’ 

ability to safely engage in their sustenance fishing practices on their lands, the Agency would be 

contradicting the clear purpose for which Congress ratified the settlements in Maine and 

provided for the establishment of Indian lands in the State. Therefore, it is incumbent upon EPA 

when applying the requirements of the CWA to harmonize those requirements with this 

Congressional purpose. 

3.3.3 Tribal Fishing Rights, the CWA, and the MICSA Savings Clauses 

Accordingly, as explained in more detail below, EPA is identifying “sustenance fishing” to be a 

designated use in tribal waters, and is disapproving Maine’s human health criteria because they 

are not stringent enough to protect the sustenance fishing use. EPA considered whether taking 

this action is prohibited by the so-called “savings clauses” in MICSA that are designed to block 

application of federal law in the State if it would both accord or relate to a special status or right

for Indian tribes and affect or preempt the jurisdiction of the State. 25 U.S.C. §§ 1725(h) and 

1735(b). EPA concludes that the savings clauses do not preclude EPA’s actions under the CWA. 

EPA is addressing the provisions of MICSA, which specifically provides for a land base for the 

Maine Tribes that is set aside for the purpose of preserving the Tribes’ culture and sustenance 

practices, in the Agency’s implementation of the CWA, which requires that water quality criteria 

protect designated uses and be based on sound scientific rationale. Unless EPA acts to ensure 

that the Tribes are able to safely exercise their sustenance practices, a key purpose behind the 

provisions in MICSA, MIA, ABMSA and MSA to assemble and preserve the Maine Tribes’ land 

base and cultures would be largely defeated. When EPA identifies Maine’s designated use of 

“fishing” to mean “sustenance fishing” in tribal waters, it is giving effect to MICSA within the 
29 

framework of Agency oversight of WQS provided for in the CWA. It certainly cannot be the 

case that the savings clauses in MICSA somehow operate to prevent the government from 

addressing MICSA itself. 

In addition, the savings clauses cannot block operation of the CWA oversight authority EPA is 

exercising in this case. EPA’s authority to review and approve or disapprove new or revised 

state WQS rests on the requirements of CWA section 303(c)(3), which provides general 

authority and a non-discretionary duty to review and approve or disapprove all new or revised 

WQS from states. Because this authority under the CWA neither “accords or relates to a special 

status or right of or to any Indian . . . tribe,” nor “affects or preempts the ... regulatory 

jurisdiction of the State of Maine...,” it is not blocked by the operation of the applicable MICSA 

savings clause. See 25 U.S.C. § 1725(h)(note that section 1735(b) would not apply to CWA 

section 303, because section 303 was enacted in 1972, and section 1735(b) applies only to laws 

enacted in and after 1980.). Nothing about EPA’s oversight of Maine’s WQS limits the State’s 

jurisdiction to set WQS for waters in Indian lands. As to the adequacy of the WQS, no state has 

authority under the CWA to set standards that are “not consistent with the applicable 

requirements of this chapter [of the CWA].” 33 U.S.C. § 303(c)(3). In determining whether 

Maine’s new or revised criteria are protective of the sustenance fishing designated use in Indian 

waters, EPA is simply exercising the same oversight authority it would exercise inside or outside 

Indian country anywhere in the nation. So this action does not accord the Indian Tribes in Maine 

a “special status or right.” 

EPA also considered whether, in looking to the federal common law of reserved tribal fishing 

rights when interpreting MICSA and implementing the CWA, EPA has somehow applied federal 

law to affect the application of state law. As a threshold matter, the MICSA savings clauses 

appear to be drafted entirely with Congressional statutory enactments in mind, and do not appear 

to address federal common law. For example, MICSA section 1725(h) provides that “no law or 

regulation of the United States” in existence at the time MICSA passed will apply in Maine if the 

conditions of that section are met. The formulation of “law or regulation” suggests Congress had 

in mind statutes that are routinely implemented by regulation. And the example provided in the 

Senate Committee Report of the operation of that section is a description of how section 164 of 

the Clean Air Act, a statutory law, would not apply in Maine. Sen. Rep. No. 96-957, p. 31.14

Finally, the operation and effect of these savings clauses is irrelevant to the use that EPA is 

making of federal common law in this case. The savings clauses are designed to prevent the 

federal government from unintentionally re-writing the jurisdictional deal embodied in MICSA. 

Only Congress has the authority to do that. In referencing certain principles of federal common 

 

14 Section 1735(b) is the companion “savings” provision to section 1725(h), and it blocks the application of federal 

law enacted after 1980 if that law would benefit the Tribes and affect or preempt the application of state law. That 

section refers to “enacted Federal law” and includes the idea that a federal law may apply in Maine if it is made 

specifically applicable in Maine. This provision also appears aimed at statutes that Congress enacts where Congress 

has the opportunity to decide whether to call out Maine in particular. The Senate Report on MICSA confirms this 

reading: “Subsection 16(b) [codified as section 1735(b)] provides a rule of construction to govern interpretation of 

Federal statutes enacted after the date of enactment of this Act.” Sen. Rep. No. 96-957, p. 35 (underscore added). 

Thus it appears that both of these savings provisions were designed to operate in combination to address 

congressional enactments and resulting regulations that might apply in Maine, not common law. 
30 

law noted above, EPA is merely acknowledging useful precedent that can inform how to 

interpret the purpose to which Congress dedicated the Tribes’ lands under MICSA and the other 

settlement acts. Doing so does not revise MICSA or change its jurisdictional formula; rather 

EPA is ensuring that the tribal territories can continue to serve the purpose for which they were 

created under MICSA. This is precisely consistent with First Circuit precedent in which the 

court has looked to federal principles of Indian law to help interpret the meaning of MICSA. 

Akins, 130 F.3d at 489-490 and Fellencer, 164 F.3d at 711-712. 

3.3.4 Designated Use of Sustenance Fishing 

In section 3.2 above, EPA describes its approval of the designated uses contained in the various 

classifications of waters in Indian lands. Each classification includes the designated use of 

“fishing.” As explained below, EPA is interpreting the designated fishing use for all waters in 

Indian lands to mean “sustenance fishing”; and for certain waters in the Southern Tribes 

reservations, EPA is also approving a sustenance fishing designated use specified in MIA. 

3.3.4.1 EPA’s Decision to Approve a Sustenance Fishing Use in the Southern Tribes’ Inland 

Reservation Waters 

As discussed above, MIA provides that: “Notwithstanding any rule or regulation promulgated by 

the commission or any other law of the State, the members of the Passamaquoddy Tribe and the 

Penobscot Nation may take fish, within the boundaries of their respective Indian reservations, for 

their individual sustenance subject to the limitations of subsection 6.” 30 M.R.S. § 6207, sub-§ 

4. “Fish” is defined to mean “a cold blooded completely aquatic vertebrate animal having 

permanent fins, gills and an elongated streamlined body usually covered with scales and includes 

inland fish and anadromous and catadromous fish when in inland water.” 30 M.R.S. § 6207, 

sub-§ 9. 

These provisions clearly codify a tribal right of sustenance fishing for inland, anadromous, and 

catadromous fish in the inland waters of the Penobscot Nation’s and Passamaquoddy’s 

reservations.15 This right is subject only to 30 M.R.S. § 6207, sub-§ 6, which authorizes Maine’s 

Commissioner of Inland Fisheries and Wildlife to, among other things, adopt remedial measures, 

including the rescission of any tribal ordinance or regulation by the Maine Indian Tribal-State 

Commission, to prevent substantial diminution of fish stocks in waters outside of the boundaries 

of lands or waters subject to regulation by the Passamaquoddy Tribe, the Penobscot Nation or the 

Commission. 

EPA has evaluated whether 30 M.R.S. § 6207, sub-§§ 4 and 9, constitutes a new or revised water 

quality standard, in light of the Agency’s recent guidance regarding how it determines what is or 

is not a new or revised WQS, summarized in EPA’s 2012 Frequently Asked Questions (FAQ) 

publication on the subject.16 As explained in the FAQ, EPA considers four questions in making 

this determination, and in this case, all four questions are answered in the affirmative. First, 

 

15 EPA is taking no position here on whether this codified right includes or excludes fish in marine waters. See 

section 3.3.1.3, above. EPA is approving these provisions for inland waters where there is no ambiguity. 

16 EPA, What is a New or Revised Water Quality Standard Under CWA 303(c)(3)? Frequently Asked Questions, 

October 2012. 
31 

these provisions are legally binding and were established as a matter of state law. Second, they 

include and address one of the three core components of a water quality standard (i.e., a 

designated use), since they articulate a specific fishing use for the specified waters. Third, they 

express or establish the desired condition of the waters, or level of protection afforded the 

waters, by specifically providing for sustenance fishing. (As discussed above, to protect 

sustenance fishing, the water quality must be both adequate to support healthy fish populations at 

levels that provide a sufficient quantity of fish to be taken for sustenance purposes, and adequate 

to ensure that such fish may be safely consumed at sustenance rates by tribal members.17) 

Lastly, these provisions establish a new water quality standard since they have not previously 

been approved by EPA. 

Based on this evaluation, EPA has determined that 30 M.R.S. § 6207, sub-§§ 4 and 9, constitutes 

a new or revised water quality standard, specifically a designated use, subject to EPA review and 

approval or disapproval under section 303(c) of the CWA.18 EPA further finds that the 

sustenance fishing designated use established by 30 M.R.S. § 6207, sub-§§ 4 and 9, is consistent 

with the provisions of sections 101(a) and 303(c)(2) of the CWA, as well as EPA’s implementing 

regulations. Accordingly, EPA is today approving the designated use of sustenance fishing for 

inland, anadromous, and catadromous fish, applicable to all inland waters of the Southern Tribes’ 

reservations in which populations of fish are or may be found.19

3.3.4.2 EPA’s Decision to Interpret the State’s Designated Use of “Fishing” to Mean 

Sustenance Fishing for Waters in the Northern and Southern Tribes’ Trust Lands 

As explained above, EPA is approving the State’s designated use of “fishing” as it applies to 

waters in Indian lands. In inland waters of the Southern Tribes’ reservations EPA is also 

approving a specific additional designated use of sustenance fishing, as explained immediately 

above. In the trust lands for all the Tribes in Maine and the marine waters of the Passamaquoddy 

Tribe’s reservation, EPA must determine how to interpret the fishing use that EPA is approving 

for those waters. EPA concludes that to protect the function of these waters to preserve the 

Tribes’ unique culture and to provide for the safe exercise of their sustenance practices, EPA 

must interpret the fishing use to include sustenance fishing.20

In reviewing Maine’s WQS as they apply to waters in Indian lands, EPA must reconcile two 

statutory frameworks. On the one hand, the CWA generally assigns to a state the responsibility 

of determining the designated uses in its waters (subject to certain restrictions at 40 C.F.R. § 

131.10). 33 U.S.C. §§ 1251(a)(2), 1313(c)(2)(A). On the other hand, as explained above, the 

 

17 As noted above, the sustenance fishing use is subject to the limitations of 30 M.R.S. § 6207, sub-§ 6, which 

authorizes Maine’s Commissioner of Inland Fisheries and Wildlife to take steps to prevent substantial diminution of 

fish stocks. EPA considers this to be a fisheries management provision, and not a restriction on the quality of water 

needed to protect the sustenance fishing use. 

18 EPA’s authority and duty to review and approve or disapprove new or revised WQS does not depend on whether 

such WQS have been submitted by the State to EPA for review, or on where in state law they are codified. FAQ at 2. 

19 EPA interprets this designated use of sustenance fishing as not applying to inland waters that are inherently 

incapable of sustaining fish populations, such as most ephemeral streams and vernal pools. 

20 EPA interprets the designated “fishing” use for the inland waters of the Southern Tribes’ reservations in the same 

manner. However, because EPA is also approving a specific sustenance fishing use contained in 30 M.R.S. § 6207, 

sub-§§ 4 and 9 for those waters, the discussion in this section is focused on the waters in the Trust lands. 
32 

settlement acts in Maine recognize and create specific areas in the State to provide for the Tribes 

to use their waters in a way that is distinct from waters outside Indian lands. EPA is bound to 

attend to and comply with both statutory frameworks to the extent EPA is able to reconcile how 

they apply to the Agency’s review of Maine’s WQS in Indian waters. 

It is possible to harmonize these two statutory frameworks by recognizing that the State’s 

designated fishing use under the CWA must include the concept of sustenance fishing as 

provided for in the settlement acts. To do otherwise would run the risk that state WQS could be 

based on assumptions about fish consumption rates that could lead to criteria that fail to protect 

the Tribes’ ability to safely consume fish for their sustenance. The settlement acts, adopted 

between 1980 and 1991, are designed to establish a land base on which the Tribes can sustain 

themselves as unique cultures going forward. Therefore, the Agency will interpret the 

designated fishing use to include the ability of tribal members to safely take fish for their 

individual sustenance. 

The extent to which existing state law either codifies or at least accommodates tribal sustenance 

fishing supports this approach to harmonizing the settlement acts with the structure of the WQS 

program under the CWA. As described above, MIA codifies an express provision for sustenance 

fishing in the Southern Tribes’ trust lands. The state fishing code as it applies to waters in the 

Northern Tribes’ trust lands imposes take limits that appear to be consistent with those Tribes’ 

ability to fish for their sustenance. And finally, in 2013, Maine explicitly provided for all the 

Tribes in Maine to take marine species for their sustenance. The role of tribal sustenance fishing 

is woven into the fabric of Maine law, so requiring that use to be protected in the State’s WQS 

program as applied to tribal waters will not conflict with state law governing how the Tribes may 

use these waters. 

As described above, EPA acknowledges that the Tribes’ sustenance fishing practices are not free 

from state regulation. The State has varying degrees of authority to regulate the quantity of fish 

that can be taken depending on the type of Indian land involved. In the Southern Tribes’ 

reservations, the State has very narrow authority to set limits in the reservations to prevent 

depletion of fish stock in waters outside the Southern Tribes’ reservation waters. The 

commission can regulate fish take on certain waters on the Southern Tribes’ trust lands based on 

factors enumerated in MIA. On the Northern Tribes’ trust lands the State regulates take 

consistent with state law.21 However, the State’s authority to limit the taking of fish to manage 

fisheries for their protection and preservation is not inconsistent with the settlements acts’ 

provision of sustenance fishing in tribal waters and EPA’s identification of “sustenance fishing” 

as the designated use for these waters. Neither does the State’s authority to limit take mean that 

state water quality criteria need not protect sustenance fishing in those waters. Water quality 

criteria must be sufficient to protect the designated uses, whether or not the uses are currently 

being achieved. CWA 303(c)(2)(A) and 40 C.F.R §§131.3(f) and 131.11.

 

21 As noted earlier, EPA is not taking a position one way or the other on whether the State may regulate

Passamaquoddy marine sustenance fishing where such fishing occurs within their reservation. 
33 

4 EPA’s Decisions on Maine’s New or Revised Water Quality Standards Submissions 

From 2003 through 2014 

4.1 General Background 

Section 303 of the CWA requires each state to adopt water quality standards to protect public 

health and welfare, enhance the quality of water, and otherwise serve the purposes of the CWA.22

 

Any new or revised standard adopted by a state under section 303(c) must be submitted to EPA 

for review, to determine whether it meets the CWA’s requirements, and approval or disapproval. 

33 U.S.C. § 1313(c)(1) and (3); 40 C.F.R. §§ 131.5, 131.6 and 131.20. 

WQS describe the desired condition of a waterbody and consist of three principle elements: (1) 

the "designated uses" of the state's waters, such as public water supply, recreation, propagation 

of fish, or navigation; (2) "criteria" specifying the amounts of various pollutants, in either 

numeric or narrative form, that may be present in those waters without impairing the designated 

uses; and (3) antidegradation requirements, providing for protection of existing water uses and 

limitations on degradation of high quality waters. EPA's regulations at 40 C.F.R. part 

131describe the minimum requirements for each of these three elements of WQS. 

In accordance with CWA § 303(c) and 40 C.F.R. §§ 131.5 and 131.11, EPA must ensure that 

new or revised criteria are based on sound scientific rationale and contain sufficient parameters 

or constituents to protect designated uses. 

 

4.2 EPA’s Decision to Disapprove Maine’s Human Health Criteria for Waters in Indian Lands 

because They Do Not Protect the Designated Use of Sustenance Fishing in Waters in 

Indian Lands in Maine, and to Approve Maine’s Cancer Risk Level of 10-6 

4.2.1 Maine’s Human Health Criteria Submitted to EPA on May 14, 2004, January 11, 2006 

and January 14, 2013 

On May 14, 2004, DEP submitted revisions to the human health criteria for mercury at 38 

M.R.S. § 420(1-B.A.(2)) to EPA for review and approval or disapproval. On January 11, 2006, 

Maine DEP submitted numeric Human Health Criteria (“HHC”) for toxic pollutants, among 

other revisions, to EPA for review and approval or disapproval (the “2006 HHC”). 23 These 

criteria replaced Maine’s previous regulation that incorporated EPA’s CWA § 304(a) 

recommended criteria by reference. The revisions reflected DEP’s use of a statewide fish 

consumption rate (“FCR”) of 32.4 g/day (an increase from the 6.5 g/day FCR on which EPA’s 

 

22 Section 303’s requirements also apply to tribes that are authorized to implement a WQS program. Since EPA’s 

decision today relates to a state’s WQS program, the discussion of general statutory and regulatory requirements and 

guidance are framed in terms of state actions only.

23 HHC are established to protect human health from exposure to pollutants that occur through the ingestion of water 

and/or contaminated fish and shellfish. Any human health criterion for a toxicant is based on at least three 

interrelated considerations: cancer potency or systemic toxicity, exposure (e.g., fish consumption rate), and risk 

characterization. http://water.epa.gov/scitech/swguidance/standards/handbook/chapter03.cfm#section13
34 

then CWA § 304(a) recommended criteria were based). 24 The HHC revisions included a 

requirement that HHC for carcinogens be based on a cancer risk level (CRL) of 1x10-6. DEP 

Rule Chapter 584 § 4. Accordingly, all of the HHC for carcinogens submitted to EPA in 2006 

were calculated using a 10-6 CRL. EPA approved the mercury criteria for waters outside of 

Indian lands on January 25, 2005, and approved the other criteria for waters outside of Indian 

lands on July 7, 2006 and September 18, 2006. EPA is today addressing these criteria for waters 

in Indian lands.

On January 13, 2014, DEP submitted new HHC for acrolein and phenol, and revised criteria for 

arsenic (discussed separately below), to EPA for review and approval. Similar to the 2006 HHC, 

the new HHC for acrolein and phenol were based on the statewide fish consumption rate of 32.4 

g/day and a CRL of 10-6. EPA is addressing these criteria in its decision today for all waters in 

the State, including in Indian lands. 

In 2011, Maine’s legislature enacted LD 515, which required DEP to revise Maine’s HHC for 

arsenic by basing it on a CRL of 1 in 10,000 (1x10-4) rather than the previous CRL of 1 in 

1,000,000 (1x10-6). DEP adopted the new criteria based on the 10-4 CRL and a revised FCR of 

138 g/day, in order to protect highly exposed state subpopulations, and on January 14, 2013, 

submitted them to EPA for review and approval. EPA approved the revised arsenic criteria only 

for waters outside of Indian lands on May 16, 2013. EPA is addressing these criteria in its 

decision today for waters in Indian lands.

4.2.2 EPA’s Analysis of the Adequacy of Maine’s HHC for Waters in Indian Lands 

4.2.2.1 EPA Guidance 

As explained in EPA’s Methodology for Deriving Ambient Water Quality Criteria for the 

Protection of Human Health (the “2000 Human Health Methodology” or “2000 Guidance”), 

EPA recommends that states provide adequate protection from adverse health effects to the 

general population, as well as to highly exposed populations, such as recreational and 

subsistence fishers, two distinct groups whose fish consumption rates may be greater than the 

general population.25 EPA provides national default fish consumption rates (“FCR”) of 17.5 

grams per day (“g/day”) for the general population and recreational anglers, and of 142.4 g/day 

for subsistence fishers.26 However, because the level of fish consumption in highly exposed 

populations varies by geographic location, EPA strongly recommends that states use local or 

regional data over the default values. EPA has also recently explained that in order to provide 

for safe fish consumption, it is important that HHC avoid any suppression effects that may occur 

 

24 Although not explicitly stated in DEP Regulation Chapter 584, the mercury criteria in 38 M.R.S. § 420(1-B.A.(2)) 

were based on the Maine Bureau of Health Fish Tissue Action Level of 0.2 mg/Kg, which was derived using a fish 

consumption rate of 32.4 g/day. See Development of Ambient Water Quality Criteria for Mercury, A Report to the 

Joint Standing Committee on Natural Resources, by DEP, dated January 15, 2001. 

25 EPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. 

Environmental Protection Agency, Office of Water, Washington, D.C. EPA-822-B-00-004, p. 2-2. Available at: 

http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf 

26 Id., pp. 1-12 and 1-13. 
35 

when a group’s consumption rate is artificially diminished due to perceptions of pollutant 

contamination of the fish.27

4.2.2.2 Tribal Sustenance Fishers to be Protected as the Target Population in Tribal Waters 

EPA concludes that when analyzing how the WQS program applies to the sustenance fishing use 

in the waters of Indian lands in Maine, the tribal population must be considered to be the “target 

population” for the purpose of determining whether the State’s human health criteria are 

adequate to protect the tribes’ health, including determining the appropriate fish consumption 

rate applicable in those waters and weighing the risk level to which tribal members should be 

exposed. Congress set aside Indian lands to provide a place for the Tribes to reside and to 

exercise their sustenance practices. Therefore, that tribal population and its sustenance fishing 

use must be the focus of the risk assessment supporting water quality criteria to adequately 

protect that use. To do otherwise risks undermining the purpose for which Congress established 

and confirmed the Tribes’ land base. 

EPA’s 2000 Human Health Methodology provides that when developing in-stream water quality 

criteria to protect human health, states have some flexibility in determining which populations 

the state’s criteria are designed to protect. Generally the guidance recommends that states 

consider how to protect both susceptible and highly exposed populations when setting criteria. 

When choosing exposure factor values [including fish consumption rates] to include in 

the derivation of a criterion for a given pollutant, EPA recommends considering values 

that are relevant to population(s) that is (are) most susceptible to that pollutant. In 

addition, highly exposed populations should be considered when setting criteria.28

EPA’s approach in this guidance is to recommend protection of the general population based on 

fish consumption rates designed to represent “the general population of fish consumers,” and 

then to recommend that states assess whether there might be more highly exposed 

subpopulations or “population groups” that require the use of a higher fish consumption rate to 

protect them as the “target population group(s).” Id. at 4-24 – 25. The guidance leaves states 

considerable discretion in determining which populations to target for protection using either 

statewide criteria or more geographically focused site-specific criteria. 

The 2000 Guidance does not directly speak to the unique situation EPA confronts in this action, 

where 1) a state has authority to set human health criteria for waters in Indian lands, and 2) those 

lands have been set aside by Congress for, among other reasons, the preservation of tribal 

cultural practices, including sustenance fishing. Nevertheless, it is possible to apply the 

principles outlined in the 2000 Guidance to this situation, informed by the settlement acts. As 

discussed below, the settlement acts lead EPA to consider the Tribes to be the general target 

population in their waters, and the Guidance’s recommendations on exposure and cancer risk for 

the general target population can be applied accordingly. 

 

27 EPA 2013, Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked 

Questions, page 2. Available at: 

http://water.epa.gov/scitech/swguidance/standards/criteria/health/methodology/upload/hhfaqs.pdf

28 EPA 2000 Human Health Methodology at 4-17. 
36 

In Maine, the State has authority to set WQS for the waters in tribal lands where tribal members 

are the exclusive or predominant population. See 30 M.R.S. § 6206(1) (Penobscot Nation and 

Passamaquoddy Tribe control “the right to reside within the respective Indian territories” as an 

internal tribal matter.) Some of those lands and the waters in them are subject to a statutorily 

reserved tribal fishing right; some are set aside for the purpose of giving the resident tribe a land 

base on which to exercise traditional sustenance practices. What all the waters in these Indian 

lands have in common is, as explained above, that the fishing activity on them will involve tribal 

members, and may be predominated by tribal members, who have the right to, and desire to, fish 

for their sustenance. Also as explained above, consistent with the purpose of the settlement acts 

to preserve the Tribes’ culture, these tribal members intend to fish for their sustenance. They are 

not a highly exposed or high-consuming subpopulation in their own lands; they are the general 

population for which the federal set-aside of these lands and their waters was designed.29

 

Therefore, as described above, EPA has identified and approved a designated sustenance fishing 

use applicable to waters in these Indian lands. That designated use requires the Agency to focus 

its analysis on sustenance fishers as the target general population. In effect, the settlement acts 

have determined how EPA and Maine must analyze the use of these waters and the population to 

be targeted for protection, because those acts established Indian lands in Maine for the clearly 

identifiable purpose of allowing the Tribes to sustain themselves on their own lands and waters. 

A similar analysis applies to another critical factor in deriving human health criteria, the cancer 

risk level. For carcinogenic pollutants, EPA’s 2000 Guidance recommends that states protect the 

general population to a level of risk no greater than one in one hundred thousand to one in one 

million (1 x 10-5 to 10-6) of an additional cancer occurring in that population. Maine DEP has 

selected 10-6 as the level of risk that must be used to establish human health criteria for 

carcinogenic pollutants, with the exception of arsenic. Maine Rule Chapter 584 § 4. EPA’s 

2000 Guidance indicates that if there are highly exposed groups or subpopulations within that 

target general population, such as subsistence consumers, water quality standards should protect 

those consumers to a level of risk no greater than one in ten thousand (1 x 10-4).30 EPA and 

Maine relied on this aspect of the guidance in approving Maine’s recently submitted revision to 

its human health criterion for arsenic as it applies to waters outside Indian lands. The Agency 

analyzed whether the State’s revised arsenic criterion adequately protected subsistence 

consumers outside tribal waters as a subpopulation to a risk level of 10-4. 

Again, EPA concludes that it would be inconsistent with the intent of the settlement acts to treat 

the Tribes as a subpopulation of the State when developing HHC for waters in their own lands, 

and to expose them to levels of risk above what would be reasonable for the general population 

of the State. Therefore, the CWA requires that when establishing WQS for these waters, the 

tribal members must be considered to be the target general population for the purposes of setting 

 

29 EPA recognizes that tribal members will not be the only population fishing from some of these waters. On major 

rivers such as the Penobscot River, for example, the general population has the right to pass through the waters in 

Indian lands. The presence of some nonmembers fishing on these waters, however, does not change the fact that the 

resident population in the Indian lands is made up of tribal members who expect to fish for their sustenance in the 

waters in Indian lands pursuant to the settlement acts. 

30 EPA 2000 Human Health Methodology at 2-6. 
37 

risk levels to protect the sustenance fishing use. In Maine, the State has codified a risk level of 

10-6 for all but one carcinogen, and EPA is today approving that provision in Chapter 584 to 

apply to waters in Indian lands, as discussed further below. 

4.2.2.3 Fish Consumption Rate 

In evaluating the adequacy of Maine’s HHC to protect the sustenance fishing designated use for 

waters in Indian lands, EPA reviewed the basis for the FCR used by Maine, and also considered 

whether other localized information exists that would be relevant and appropriate to consider in 

determining an adequate sustenance fishing consumption rate that is not artificially suppressed 

by pollution concerns.

4.2.2.3.1 ChemRisk Study 

DEP derived the 32.4 g/day FCR, used for all of its HHC except arsenic, in part31 from the 

results of a 1990 study conducted by McLaren/Hart – ChemRisk, of Portland, Maine (the 

“ChemRisk Study”32). While DEP considered several sources of information about fish 

consumption rates to develop the 2006 HHC, the ChemRisk Study contains the only localized 

data that DEP used. EPA reviewed the ChemRisk Study as well as additional information about 

the Study contained in comments from a primary author of the Study and responses to comments 

from DEP, contained in DEP’s May 25, 2012 Response to Comments document submitted to 

EPA on January 14, 2013, to determine the Study’s relevance to the target tribal populations’ 

sustenance fish consumption rates in waters in Indian lands. 

In 1990, to characterize the rates of freshwater fish consumption by Maine’s resident anglers, 

ChemRisk conducted a statewide mail survey of Maine residents holding a valid Maine fishing 

license in 1989. The survey asked respondents to report the number of freshwater fish caught in 

Maine, their species, and the average length of each fish that was eventually consumed by them, 

including fish caught by other members of the respondent’s household and by individuals outside 

the household. Along with other demographic information, respondents were asked to selfidentify their ethnic background (white/non-Hispanic, Hispanic, Native American, Asian/Pacific 

Islander, Black, or other). Of the 2,500 surveys mailed, 1,612 were completed and returned. Of 

these, 1,053 anglers reported having consumed freshwater and anadromous fish obtained from 

Maine inland waters during the 1989-1990 ice fishing season or 1990 open water fishing season. 

The 95th percentile FCR (as calculated by rank without any assumption of statistical distribution) 

for the fish consuming anglers was 26 g/day.

 

31 Maine Bureau of Health, Fish Tissue Action Levels, February 20, 2001, published at 

https://www1.maine.gov/dhhs/mecdc/environmental-health/eohp/fish/documents/action-levels-writeup.pdf 

32 ChemRisk, A Division of McLaren Hart, and HBRS, Inc., Consumption of Freshwater Fish by Maine Anglers, as 

revised, July 24, 1992. See also Ebert, E.S., N.W. Harrington, K.J. Boyle, J.W. Knight, R.E. Keenan, Estimating 

Consumption of Freshwater Fish among Maine Anglers, North American Journal of Fisheries Management, 13:4, 

737-745 (1993); http://dx.doi.org/10.1577/1548-8675(1993)013<0737:ECOFFA>2.3.CO;2
38 

According to the Study, 148 Native Americans participated in the survey (11% of total 

participants), and 96 of those reported consuming freshwater fish that had been sport-caught.33 

The consumption rate for the Native American participants equaled or exceeded the rate of all 

other population groups at the 66th, 75th, and 90th percentiles34

, and the 95th percentile for Native 

Americans was nearly double the 95th percentile for the next highest population group.35 

However, the maximum rate reported by the Native Americans respondents (162 g/day) was 

lower than the maximum rate reported by the entire surveyed population (182 g/day).36 

Ultimately, DEP used a statewide fish consumption rate of 32.4 g/day to establish its HHC, 

which is the equivalent of one 8-oz. fish meal per week, and, according to DEP, represents the 

97th percentile FCR for Maine recreational anglers for all waters, and the 94th percentile for 

Native American anglers in Maine.37 It was “designed to protect the subpopulation of 

recreational anglers that frequently consume sport-caught fish.....”38

 

As explained above, in evaluating whether the sustenance fishing designated use for waters in 

Indian lands is protected by Maine’s HHC, EPA considers the tribal sustenance fishers to be the 

“target” general population for such waters. This means that the FCR for the applicable HHC 

must reflect, as accurately as possible, the Tribes’ sustenance level FCR, and the CRL must be 

protective of the sustenance fishers as a general population rather than as a highly exposed 

subpopulation. 

Maine’s FCR is based primarily on statewide data, which EPA’s 2000 HH Methodology 

generally prefers over the use of national data. However, it is not based on localized data for the 

specific waters in Indian lands or the target tribal populations. The ChemRisk Study was not 

intended to be, nor was it, a survey of tribal sustenance fishers in tribal waters. The survey was 

sent to state-licensed recreational anglers, but tribal sustenance fishers are not required to have 

state licenses to fish in waters in Indian lands.39 Therefore, EPA is unable to conclude that the 

Study results are representative of a fish consumption rate for tribal sustenance fishers in tribal 

waters. 

 

In addition, the Study does not reflect unsuppressed fish consumption levels. At the time the 

ChemRisk survey was conducted, Maine had issued fish consumption advisories for the main 

stem of the Penobscot River, where the Penobscot Nation reservation is located, the 

Androscoggin River (1985), and the Kennebec River, (1987), and it issued advisories for the 

Presumpscot River and West Branch of the Sebasticook River in 1990.40 DEP has 

acknowledged that “public awareness of historical pollution in industrialized rivers can be 

expected to have suppressed fish consumption on a local basis,” and that the ChemRisk 

 

33 ChemRisk Study, Tables 5 and 6a.. 

34 Id., Table 6a. 

35 Id., as revised (see comment by Ellen Ebert in DEP’s Response to Comments, May 25, 2012, page 16). 

36 Written comments from Ellen Ebert, primary author of the Chemrisk Study, to Maine DEP, as reported in DEP 

Response to Comments dated May 25, 2012 and submitted to EPA January 14, 2013.DEP, page 16. 

37 Maine RTC, May 25, 2012, page 20.

38 Maine DEP testimony to the Maine Legislature, April 25, 2011, p. 3. 

39 Id., p. 19. 

40 Id., p. 20. 
39 

“estimates of fish consumption for rivers and streams as well as the inclusive ‘all waters’ 

category are likely to have been affected to some degree.”41 

Although the responses were not tallied and not analyzed in ChemRisk’s report, the ChemRisk 

survey did include questions regarding the impact of fish consumption advisories. EPA analysis 

of the survey response data42 indicates that 35% of respondents (556 individuals) were aware of 

the advisories during the time of the survey. Of the 160 respondents who reported that they ate 

fish from locations covered by fish consumption advisories, 82% (135) reported that the 

advisories affected whether they kept the fish caught at those locations.43 It is not clear (because 

the question was not asked) whether anglers avoided certain waters in the 1989/1990 fishing 

season because of the fish advisories and whether that avoidance affected their total fish 

consumption. Nonetheless, it is clear that the existence of the advisories did result in some 

anglers reducing their take from those rivers.

EPA also reviewed the results of the Penobscot Nation’s draft 1991 Penobscot River Users 

Survey.44 While the survey was small (210 respondents) and the response rate was only 25%, 

and it was limited to Penobscot Nation members and their use of the Penobscot River, it does 

contain information that reinforces EPA’s conclusion that the ChemRisk Study does not reflect 

unsuppressed sustenance fish consumption in tribal waters. For example, 72.9 % of the 

respondents stated they did not eat fish from the Penobscot River, and a majority (66.7%) stated 

that they had concerns about eating fish from the river. 45 The vast majority of those concerns 

were related to pollution.46 In addition, of the 37.1% who reported not using the river at all, 

16.3% identified the reason as concerns about pollution.47 

4.2.2.3.2 Wabanaki Traditional Cultural Lifeways Exposure Scenario 

In considering whether there are other sources of local data to inform EPA’s determination of 

what FCR is representative of sustenance fishing in the waters in Indian lands, EPA reviewed the 

Wabanaki Cultural Lifeways Exposure Scenario (“Wabanaki Study”), which was completed in 

2009. This peer reviewed Study was produced under a Direct Implementation Tribal 

Cooperative Agreement (DITCA) awarded by EPA to the Aroostook Band of Micmac Indians on 

behalf of all of the Maine Tribes. The purpose of the Study was to use available anthropological 

and ecological data to develop a description of Maine Tribes’ traditional cultural uses of natural 

resources, and to present the information in a format that could be used by EPA to evaluate 

whether or not tribal uses are protected when EPA reviews or develops water quality standards in 

Indian lands in Maine.48 It is relevant to contemporary water quality because another purpose of 

 

41 Id., pp. 20-21. 

42 Provided by the study author, Ellen Ebert, to EPA via email October 3, 2013. 

43 EPA, Analysis of Suppression Questions from Chemrisk Study, Memo to File, January 30, 2015.

44 1991 Penobscot River Users Survey conducted by the Penobscot Nation’s Department of Natural Resources

(draft). 

45 Id., Appendix A, §§ A.5 and A.6 

46 Id., Appendix A, § A.6 

47 Id., Appendix A, §A.1.a 

48 Harper, Barbara and Darren Ranco, Wabanaki Traditional Cultural Lifeways Exposure Scenario, prepared for 

EPA in collaboration with the Maine Tribes, p.7, July 9, 2009. 
40 

the Study “is to describe the lifestyle that was universal when resources were in better condition 

and that some tribal members practice today (and many more that are waiting to resume once 

restoration goals and protective standards are in place).”49 It provides a numerical representation 

of the environmental contact, diet, and exposure pathways of the traditional tribal lifestyle, 

including the use of water resources for food, medicine, cultural and traditional practices, and 

recreation. The Study acknowledges that “the Wabanaki homelands extended further west and 

south into areas with different plants and climate and where farming was possible,” but notes that 

“the scenario itself covers only areas most heavily used by Tribal members at present, and where 

farming is marginal due to climate.”50 

The report used anthropological and ecological data to identify major activities that contribute to 

environmental exposure and then to develop exposure factors related to traditional diet, drinking 

water, soil and sediment ingestion, inhalation rate and dermal exposure. Credible ethno 

historical, ecological, nutritional, archaeological, and biomedical literature was reviewed through 

the lens of natural resource use and activities necessary to survive in the Maine environment and 

support tribal traditions. Along with single, best-professional judgment estimates for direct 

exposures (inhalation, soil ingestion, water ingestion) as a reasonable representation (central 

tendency) of the traditional cultural lifeways, the Wabanaki Study provides an estimated range of 

diets that reflect three major habitat types.51 

In developing the dietary component of the exposure scenario, the Wabanaki Study authors 

assembled information about general foraging, seasonal patterns, dietary breadth, abundance, and 

food storage. From these they evaluated the relative proportion of major food groups, including 

fish, as well as nutritional information, total calories and quantities of foods. This resulted in an

estimate of a nutritionally complete diet for the area east of the Kennebec River, which is the 

area most heavily used by tribal members today and where farming is marginal due to climate.52

 

With regard to the consumption of fish, the Wabanaki Study identifies three traditional lifestyle 

models, each with its own diet: 

1. Permanent inland residence on a river with anadromous fish runs (“inland anadromous”), 

2. Permanent inland residence with resident fish only (“inland non-anadromous”), and 

3. Permanent coastal residence (“coastal”). 

The study provides estimates of average consumption of aquatic resources, game, fowl, and plant 

based foods for each lifestyle model. Aquatic resources were divided into two categories: 

“resident fish and other resources” and “anadromous and marine fish and shellfish.” Table 1 

summarizes the consumption of aquatic resources for each lifestyle model. 

 

49 Id., p. 9 

50 Id. 

51 Id., p. 16. 

52 Id., pages 8-9. 
41 

Table 1 – Consumption of Aquatic Resources by Lifestyle Model53

Lifestyle Model Resident Fish & Other 

Aquatic Resources(g/day) 

Anadromous & Marine 

Fish, Shellfish (g/day)54

Inland Anadromous 114 400 

Inland Non-anadromous 286 0 

Coastal 57 457 

The Wabanaki Study provides a range of fish consumption rates specifically for Maine Indians 

using natural resources for subsistence living and reduces the uncertainties associated with a lack 

of knowledge about tribal exposure in Maine Indian waters. On their own, these fish 

consumption rates could form the basis for criteria protective of sustenance fishing. 

Alternatively, they could be the starting point that could be modified, based on additional 

information, to take into account present day circumstances related to the species composition of 

available fish. For example, in developing its 2014 tribal water quality criteria, the Penobscot 

Nation used a FCR of 286 g/day. The Nation explained that it chose the inland non-anadromous 

total FCR of 286 g/day because, although the Penobscot lands are in areas that would have 

historically supported an inland anadromous diet (with total FCR of 514 g/day), the 

contemporary populations of anadromous species in Penobscot waters are currently too low to be 

harvested in significant quantities. 55

 

4.2.3 Disapproval of Maine’s HHC Because They Are Based on FCRs that Fail to Protect 

Sustenance Fishing 

EPA is today disapproving, for waters in Indian lands, the mercury human health criteria in 38 

M.R.S. § 420(1-B.A.(2)) submitted to EPA on May 14, 2004; the fish consumption rate of 32.4 

g/day specified in DEP Rule Chapter 584 § 5.C and all human health criteria in DEP Rule 

Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, Appendix A, submitted to EPA 

on January 11, 2006; and the human health criteria revisions related to arsenic, acrolein, and 

phenol in DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, Appendix 

A, as well as the last sentence in Ch. 584, § 5.C related to the fish consumption rate, submitted to 

EPA on January 14, 2013. The basis for the disapproval is that the HHC do not protect the 

sustenance fishing use in those waters. For the reasons discussed above, Maine’s 32.4 g/day 

FCR is not representative of an unsuppressed sustenance fish consumption rate by tribal 

members in waters in Indian lands. 

In the absence of a local survey of current fish consumption, adjusted to account for suppression, 

that documents fish consumption rates for sustenance fishing in the tribal waters, EPA finds that 

the Wabanaki Study contains the best currently available information for the purpose of deriving 

an FCR for HHC adequate to protect sustenance fishing for such waters. It is local, focused on 

the areas most heavily used by tribal members today. It identifies historic FCRs based on 

 

53 Id., pp. 61-66. 

54 Includes marine mammals for coastal lifestyle model only. 

55 Penobscot Nation, Department of Natural Resources, Response to Comments on Draft Water Quality Standards, 

September 23, 2014, p. 9. 
42 

reasonable estimates for total calories and protein intake per day. Heritage rates provide reliable 

evidence of what unsuppressed rates would be for tribal populations.56 The Study uses a sound 

methodology (peer reviewed, written by a range of experts in risk assessment and anthropology). 

It presents a range of FCRs from 286 g/day (freshwater fish only) to 514 g/day (combinations of 

freshwater, anadromous, and marine species), which can provide the basis for choosing an FCR 

that reflects traditional cultural practices in light of present day circumstances related to, for 

example, the species composition of available fish (as the Penobscot Nation recently did in 

adopting an FCR of 286 g/day). 

Because the Wabanaki Study documents a substantially higher tribal sustenance fish 

consumption rate than the FCR on which Maine’s HHC are based, EPA cannot conclude that the 

HHC are based on a sound scientific rationale consistent with 40 C.F.R. § 131.11(a) and protect 

the sustenance fishing use for the waters in Indian lands. EPA is therefore disapproving the 

HHC. 

4.2.3.1 Remedy to Address EPA’s Disapproval 

Under CWA § 303(c)(3) and EPA's implementing regulations at 40 C.F.R. §§ 131.21 and 131.22, 

when the EPA disapproves a state's new or revised water quality standard, it must "specify the 

changes" necessary to meet the applicable requirements of the Act and EPA's regulations. The CWA 

requires that this disapproval of Maine’s human health criteria for waters in Indian lands be 

addressed in a timely manner. In the first instance, the CWA and EPA’s regulations provide the 

State up to 90 days to revise its WQS, and EPA prefers that Maine address this disapproval under its 

regulatory development process. However, if the State does not adopt necessary changes, EPA will 

propose and promulgate appropriate human health criteria for waters in Indian lands in Maine. 

To address this disapproval action, Maine must develop new human health criteria for waters in 

Indian lands that protect tribal sustenance fishers as the target general population and are based on a 

fish consumption rate that represents unsuppressed sustenance fishing by tribal members. 

Among the available existing information on fish consumption, the Wabanaki Study is most relevant 

for Maine to consider in revising human health criteria in Indian lands. As discussed in section 

4.2.2.3, the Wabanaki study is directly applicable to the Maine Tribes fishing in waters on Indian 

lands. The fish consumption rates developed in the Wabanaki study are estimates of unsuppressed 

tribal fish consumption that could be used in the derivation of criteria protective of contemporary 

tribal sustenance fishing. In addressing the disapproval, Maine should use the fish consumption rates

developed in the Wabanaki study either on their own or modified, based, for instance, on information 

that may be provided by the Maine Tribes, to take into account changes in species composition in 

tribal fisheries and contemporary tribal sustenance fishing goals. 

 

56 National Environmental Justice Advisory Council, Fish Consumption and Environmental Justice, November 2002 

(revised), page 49. 
43 

4.2.4 Approval of Maine’s Cancer Risk Level of 10-6 and No Action on Maine’s Arsenic CRL 

of 10-4

Maine’s water quality regulations specify that water quality criteria for carcinogens be based on 

a CRL of 10-6 for all pollutants except arsenic. DEP Rule Chapter 584 § 4. This CRL is 

consistent with the range of CRLs that EPA considers to be appropriate for the general 

population and is the risk level that EPA uses when publishing its CWA § 304(a) recommended 

criteria.57 As explained above, EPA has determined that the Tribes are the target general 

population for waters in Indian lands. EPA is therefore today approving Maine’s requirement to 

use 10-6 CRL for all carcinogens except arsenic (discussed further below) for the waters in Indian 

lands. Criteria based on this low level of cancer risk, along with other appropriate factors 

(including an appropriate FCR), will protect the sustenance fishing use for waters in Indian 

lands. 

 EPA recognizes that the Maine Legislature enacted a law that requires DEP to use a CRL of 10-4

when establishing arsenic criteria,58 and that DEP Rule Chapter 584 was revised in 2012 to 

reflect this requirement. Since EPA is disapproving Maine’s arsenic criteria along with all of the 

other HHC for waters in Indian lands due to an inadequate FCR, EPA is not acting on Maine’s 

CRL for arsenic (i.e., the last sentence in Ch. 584, § 4, related to the cancer risk level to be used 

to calculate human health criteria for inorganic arsenic, and the first sentence of Footnote aME in 

Table I of Appendix A of Chapter 584). However, we note that when Maine revises its arsenic 

criteria, it must ensure that the criteria protect the Tribes as the general target population in these 

waters, not as a subpopulation. Based on the analysis above, the use of a sustenance level FCR 

developed for all of the HHC, in combination with a CRL of 10-4 for arsenic, would not protect 

the designated use of sustenance fishing. 

4.3 EPA’s Decision to Approve Maine’s Human Health Criteria for Acrolein for the 

Consumption of Organisms Only and for the Consumption of Water and Organisms, and 

Phenol for the Consumption of Organisms Only, and to Take No Action on Phenol for the 

Consumption of Water and Organisms, in Waters Outside Waters in Indian Lands 

For all waters in Maine except for waters in Indian lands, EPA approves the following water 

quality criteria contained in DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic 

Pollutants, Appendix A, submitted to EPA on January 14, 2013: 

• Human health criteria for the consumption of water plus organisms for acrolein; and 

• Human health criteria for the consumption of organisms only for acrolein and phenol. 

Maine’s revised human health criteria for acrolein and phenol were derived using the same 

methodology and equations used to calculate EPA’s current 304(a) recommended criteria for 

non-carcinogens. EPA updated recommended human health criteria for acrolein and phenol in 

2009 based on new Integrated Risk Information System Reference Doses (RfDs) for the 

pollutants59. Consistent with EPA’s criteria derivation, Maine has made no changes to the 

 

57 2000 Human Health Methodology, p. 1-8. 

58 38 M.R.S. § 420(1-B.J).

59 Federal Register: June 10, 2009 (Volume 74, Number 110) 
44 

parameters incorporated into these criteria or to the equations used other than the new RfDs. The 

criteria calculations are summarized in attached Tables 1 and 2 below. 

Table 1 – Calculation of Approved Acrolein Human Health Criteria 

Parameter 2012 criteria 

Reference Dose (RfD) 0.0005 mg/(kg-d)

Body Weight (BW) 70 kg 

Water Consumption (DW) 2 L/day 

Bioconcentration Factor (BCF) 215 L/kg 

Fish Consumption Rate (FCR) 0.0324 kg/day 

Criteria to protect human health for consuming fish

and drinking water (water + organism) 

= 1,000 μg/mg x RfD x BW 

 DW + (BCF x FCR) 3.9 μg/L 

Criteria to protect human health for consuming fish

only (organism only) 

= 1,000 μg/mg x RfD x BW 

 BCF x FCR 5.0 μg/L 

Table 2 – Calculation of Approved Phenol Human Health Criteria 

Parameter 2012 criteria 

RfD for Phenol 0.30 mg/(kg-d) 

Body Weight (BW) 70 kg 

Water Consumption (DW) 2 L/day 

Bioconcentration Factor (BCF) 1.4 L/kg 

Fish Consumption Rate (FCR) 0.0324 kg/day 

Criteria to protect human health for consuming fish

only (organism only) 

= 1,000 μg/mg x RF x BW 

 BCF x FCR 462,963 μg/L 

EPA’s approval of Maine’s revisions to its human health criteria for acrolein and to the human 

health criteria for phenol for the consumptions of organisms only is based on a review of whether 

the criteria protect the applicable designated uses, including consideration of EPA’s National 

Recommended Water Quality Criteria published pursuant to Section 304(a) of the CWA. EPA 

finds that the revised criteria are scientifically defensible and are protective of designated uses 

for waters outside of Indian lands, for the reasons explained in the EPA criteria documents for 

each chemical constituent. 

EPA understands that DEP will be revising the phenol criteria for the consumption of water and 

organisms to address a mathematical error made in the criteria derivation. Therefore, at this time 

EPA is not taking action on the human health criteria for phenol for the consumption of water 

and organisms, for waters outside of Indian lands, with the anticipation that the revised phenol 

criteria will be adopted and submitted to EPA for review and action within the coming months. 

4.4 EPA’s Decision to Approve Maine’s Aquatic Life Criteria for Acrolein, Diazanon and 

Nonylphenol for waters throughout the State of Maine, including in Indian Lands 
45 

EPA’s review of Maine’s new aquatic life criteria for acrolein, diazanon and nonylphenol, 

submitted to EPA on January 14, 2013, is based on whether the criteria protect aquatic life uses, 

including consideration of EPA’s National Recommended Water Quality Criteria published 

pursuant to Section 304(a) of the CWA. EPA finds that the revised criteria are scientifically 

defensible and are protective of designated uses for the reasons explained in the EPA criteria 

documents60 for acrolein, diazanon and nonylphenol. 

4.5 EPA’s Decision to Approve Maine’s Aquatic Life Criteria Tables I and II in DEP Rule 

Chapter 584, except for Ammonia, Approve Aquatic Life Criteria in 38 M.R.S. § 420(1-

B.A.(1)), (1-B.C), (1-B.D), and (1-B.E), and Approve Biological Criteria in DEP Rule 

Chapter 579 for Waters in Indian lands 

EPA’s review of the aquatic life criteria, other than ammonia, in DEP Regulation Chapter 584 

Tables I and II, submitted to EPA on January 11, 2006, and in 38 M.R.S. § 420(1-B.A.(1)), (1-

B.C)61,(1-B.D), and (1-B.E), submitted to EPA on May 14, 2004 (related to mercury and 

referenced in Table I of Chapter 584), for waters in Indian lands, is based on whether the criteria 

protect aquatic life uses, including consideration of EPA’s National Recommended Water 

Quality Criteria published pursuant to Section 304(a) of the CWA. EPA finds that the revised 

criteria are scientifically defensible and are protective of designated uses for the reasons 

explained in the EPA criteria documents62 for those pollutants. EPA approved these criteria for 

waters outside Indian lands on January 25, 2005 and July 7, 2006, and is now approving them for 

waters in Indian lands. 

DEP Rule Chapter 579 provides numeric biological criteria that quantify aquatic life standards 

for Class AA, A, B and C waters. The rules use the benthic macroinvertebrate community as a 

surrogate to determine conformance with statutory aquatic life standards. EPA approves of these 

criteria because they are based on sound scientific rationale and are protective of designated 

aquatic life uses, as required by Section 303(c)(2)(B) of the CWA and 40 C.F.R. § 131.11. EPA 

approved this rule for waters outside Indian lands on January 25, 2005, and is now approving it for 

waters in Indian lands.

4.6 EPA’s Decision to Approve Maine’s Narrative Criteria for Toxic Pollutants and 

Implementation Policies Regarding the Development of Statewide Criteria and SiteSpecific Criteria, except for Specified Fish Consumption Rates, in DEP Rule Chapter 584, 

for Waters in Indian Lands 

EPA’s review of Maine’s narrative water quality criteria, as expressed in Chapter 584, §§ 1, 2, 

and 3.A(1), and submitted to EPA on January 11, 2006, is based on whether those provisions are 

protective of designated uses, as required in 40 C.F.R. § 131.11. Since the narrative criteria 

specifically call for waters to be free of pollutants in concentrations that cause waters to be 

 

60 See http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm#altable for National 

Recommended Water Quality Criteria and access to criteria documents for each pollutant. 

61 Not including 38 M.R.S §420(1-B.C.(1)) and (1-B.C.(2)), which are not WQS requiring EPA review and approval 

– see section 4.9 below. 

62 See http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm#altable for National 

Recommended Water Quality Criteria and access to criteria documents for each pollutant. 
46 

unsuitable for the designated uses of the water body, EPA finds that they are consistent with the 

requirements. EPA approved these provisions for waters outside Indian lands on July 7, 2006, 

and is now approving them for waters in Indian lands. 

EPA’s review of Maine’s implementation policies regarding the development of statewide 

criteria and site specific criteria in Chapter 584 §§ 3 and 5 (other than the fish consumption rates 

of 32.4 g/day and 138 g/day, which EPA is disapproving as discussed above) is based on whether 

the criteria developed from those policies would protect the applicable designated uses including a 

consideration of EPA's ambient water quality criteria guidance, published pursuant to Section 304(a) 

of the CWA. The implementation policies include requirements for developing scientific bases 

for new or revised criteria as well as assumptions regarding ambient waters characteristics (such 

as pH, temperature, and salinity), and human health (such as water consumption rate and 

average body weight). EPA approved these policies for waters outside Indian lands on July 7, 

2006 and now approves the implementation policies in Chapter 584 §§ 3 and 5 (other than the 

fish consumption rates) for waters in Indian lands because they require criteria to protect 

designated uses, and since the procedures and numeric assumptions are consistent with currently 

published EPA guidance.

EPA is not taking action on the procedures described in Chapter 584 § 3 which describe how 

alternative statewide and site-specific criteria are to be initiated, reviewed and adopted under 

state law. 63 Such procedures are not WQS requiring review and approval by EPA. Any new or 

revised criteria developed under the procedures for statewide, alternative statewide, or sitespecific criteria must be submitted to EPA for review and approved by EPA pursuant Section 

303(c)(3) of the Clean Water Act and 40 C.F.R. part 131 in order to be effective for Clean Water 

Act purposes. 

4.7 EPA’s Decision to Approve Maine’s Dissolved Oxygen (DO) Criteria for Class C waters, 

Requirements for Compliance with DO criteria in Riverine Impoundments, Requirements 

for Instream Design Flows, the Requirement to Hold a WQS Review Hearing Every Three 

Years and Provisions that Allow for Pesticide Discharges into Class B and SB Waters for 

Mosquito Control, for Waters in Indian Lands 

EPA’s review of the revision to the DO criteria for Class C waters in 38 M.R.S. §465(4.B), 

submitted to EPA on January 11, 2006, is based on whether the criteria protect aquatic life uses, 

particularly cold waters species. For the reasons provided in our July 7, 2006 approval of these 

criteria for waters that are not in Indian lands, EPA finds that the criteria are protective of aquatic 

life uses and approves them in Indian lands as well. 

EPA’s review of the revision to DO measurement requirements for riverine impoundments in 38 

M.R.S. §464(13), submitted to EPA on August 26, 2003, is based on whether the criteria protect 

existing and designated uses for waters in Indian lands. As explained in our February 9, 2004 

 

63 Specifically, these provisions are: the requirement in Chapter 584 § 3(A.(2)) that “statewide criteria must be 

initiated in accordance with the petition for rulemaking provisions of the State Administrative Procedures Act, 5 

M.R.S.A., Section 8055”; the provision in the first paragraph of Chapter 584 § 3(B) that site specific criteria “must 

only be adopted by the Board as part of a waste discharge license proceeding pursuant to 38 M.R.S.A. Sections 413, 

414 and 414-A”; and the first two sentences of the second paragraph of Chapter 584 § 3(B). 
47 

approval of this revision for waters that are not in Indian lands, EPA finds that the narrative 

standard that accompanies the measurement requirements (“dissolved oxygen concentration in 

existing riverine impoundments must be sufficient to support existing and designated uses of these 

waters") ensures that, notwithstanding the measurement restrictions in this provision, the revision 

is consistent with the requirements of the Clean Water Act. 

EPA’s review of the revisions to DEP Rule Chapter 530 § 4(B), which contains instream design 

flows for the application of water quality criteria for aquatic life and human health, submitted to 

EPA on January 11, 2006, is based on whether the provision protect existing and designated uses 

for waters in Indian lands. The instream design flows (1Q10 low flow for acute aquatic life 

criteria, 7Q10 for chronic aquatic life criteria, and harmonic mean flow for human health 

criteria), are consistent with guidance intended to ensure protection of uses provided in Section 

5.2 of EPA’ Water Quality Standards Handbook64. EPA approved this provision for waters outside 

Indian lands on April 17, 2006, and is now approving it for waters in Indian lands.

EPA's review of the revision to provisions in 38 M.R.S. § 464(3.B), that ensure that a hearing will be

held at least every three years for the purpose of reviewing Maine’s WQS, and revising them, as 

appropriate, submitted to EPA on May 14, 2004, is based on whether the provision is consistent with 

federal WQS review requirements. This revision reversed a previous change to 38 M.R.S. § 

464(3.B)65 that specified hearings only every four years. Since CWA § 303(c)(1) and 40 C.F.R. § 

131.20 require states to hold public hearings every three years, the revision is consistent with federal 

WQS requirements. EPA approved this provision for waters outside Indian lands on January 25, 

2005, and is now approving it for waters in Indian lands. 

Revisions submitted on April 8, 2008 included the addition of 38 M.R.S. § 465(3.C.(2)) and § 

465-B(2.C) which allow the discharge to Class B and SB waters of aquatic pesticides approved 

by DEP for control of mosquito-borne diseases. EPA’s review is based on whether the provision 

will protect existing and designated uses for waters in Indian lands and is consistent with the 

requirements of the Clean Water Act. Given the requirements that the methods and materials 

used be protective of non-target species, EPA anticipates that no degradation of water quality 

would occur due to the discharge of aquatic pesticides authorized under these revisions. EPA 

approved these provisions for waters outside Indian lands on August 19, 2009 and is now 

approving it for waters in Indian lands. 

4.8 EPA’s Decision to Take No Action on Maine’s Ammonia and Recreational Bacteria 

Criteria for Waters in Indian lands; on the Reclassification of Long Creek; and on Certain 

Bacteria and Pesticide Provisions for Waters throughout Maine, Including Waters in Indian 

Lands 

EPA understands that Maine will be conducting a comprehensive triennial review in the coming 

months and will be reviewing the ammonia criteria for protection of aquatic life and the bacteria 

 

64 EPA-820-B-14-004, September 2014, provided on line at 

http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section52. 

65 EPA did not act on the previous revision (calling for hearings every 4 years) which DEP submitted to EPA on 

August 26, 2003, since DEP agreed at that time to propose changing the requirement back to hearings every 3 years. 
48 

criteria for the protection of primary contact recreation, in light of EPA’s recommendations66 for 

these widespread pollutants, issued in 2013 and 2012, respectively. EPA expects that DEP will 

be revising these criteria for all waters in Maine, including waters in Indian lands, so that they 

are based on sound science and protective of the designated uses. For this reason, for waters in 

Indian lands, we are not taking action at this time on Maine’s ammonia criteria for the protection 

of aquatic life in DEP regulation Chapter 584, Appendix A, and the numeric bacteria criteria for 

the protection of primary contact recreation for Class B and C waters in 38 M.R.S. §465(3.B) 

and (4.B), and the extension of the applicability of bacteria criteria for Class SB and SC waters 

to include bacteria of domestic animal origin in 38 M.R.S. § 465-B(2.B) and (3.B). For the same 

reason, we are not taking action for waters throughout the State, including waters in Indian lands, 

on the revisions to 38 M.R.S. §465(3.B) and (4.B) and 38 M.R.S. § 465-A(1.B), which extended 

the applicability of the bacteria criteria for Class B, C, and GPA waters to include bacteria of 

domestic animal origin. EPA would be happy to provide assistance to DEP as it develops the 

new criteria. 

In addition, EPA is not taking action on the reclassification of a section of Long Creek (which is 

a water outside of Indian lands) from Class B to Class C. This downgrade in classification was 

adopted to achieve consistency in the Creek where the upstream and downstream reaches were 

already Class C waters. EPA agrees with DEP that it is unusual for a downstream section of a 

flowing water to be at a higher classification that the upstream section, However, EPA would 

like to discuss this reclassification further with DEP in the coming months to explore whether 

there are other means to remedy the inconsistency, such as reclassifying the upstream section to 

Class B if the restoration of Long Creek and Class B uses there are attainable. 

EPA also reviewed the provisions related to certain pesticide discharges submitted to EPA in 

2006, 2008 and 2014 and finds that many of these are not water quality criteria requiring review 

and approval by EPA (as discussed in the section that follows) and two are WQS that we have 

approved herein (as discussed in the preceding section). However, EPA finds that some of these 

revisions are WQS which EPA has not yet acted on for waters anywhere in Maine. The revisions 

related to pesticides that are WQS that we are continuing to take no action on are: 

• The revisions made in L.D. 1304 at 38 M.R.S. § 464(4.A.(3)(a)), and § 465((3.C.(1)) and 

(4.C), related to certain pesticide discharges, submitted to EPA on January 11, 2006; 

• The revision made in L.D. 1430 at 38 M.R.S. § 464(4.A.(3)(b)), related to certain 

pesticide discharges to tributaries of GPA waters, submitted to EPA on February 27, 

2014. 

The revisions made at 38 M.R.S. § 464(4.A.(3)(a) and (b)), would allow, in GPA waters and 

tributaries to GPA waters, the impairment of characteristics and designated uses and increase in 

trophic state due to discharges of aquatic pesticides or chemical discharges for the purpose of 

restoring biological communities affected by an invasive species or that are the unintended or 

incidental result of the spraying of pesticides. The revision made at 38 M.R.S. § 465((3.C.(1)) 

would allow, in Class B waters, impairment of the resident indigenous biological community due 

to discharges of aquatic pesticides or chemical discharges for the purpose of restoring biological 

 

66 See December 2, 2013 letter from EPA Region 1 Office of Ecosystem Protection Director, Ken Moraff to DEP 

Bureau of Land and Water Quality Director, Michael Kuhns. 
49 

communities affected by an invasive species. Similarly, the revision made at 38 M.R.S. § 

465(4.C) would allow impairment of the function and structure of the indigenous biological 

community due to discharges of aquatic pesticides for the purpose of restoring biological 

communities affected by and invasive species. EPA understands from recent discussion with 

DEP, that Maine will be revising these provisions during the upcoming months to ensure that 

they are protective of designated uses. For this reason EPA is not taking action on these 

revisions at this time. 

4.9 EPA’s Determination That Various Provisions Submitted to EPA from 2004 through 2014 

Are Not Water Quality Standards and Therefore EPA is Taking No Action on These 

Provisions 

EPA has reviewed the following provisions and determined that they are not water quality 

standards and therefore EPA is taking no action on these provisions: 

• Revisions made at 38 M.R.S. § 465(1.C.(2)) and (2.C.(2)), enacted as Chapter 574, L.D. 

1833 “An Act to Amend Water Quality Laws to Aid in Wild Atlantic Salmon 

Restoration,” submitted to EPA on May 14, 2004; 

• Revisions made at 38 M.R.S. § 420(1-B.B) related to discharger compliance, submitted 

to EPA on May 14, 2004; 

• Revisions made at in 38 M.R.S. § 420(1-B.C.(1)) and (1-B.C.(2)) that describe the state 

regulatory procedures for establishing site-specific bioaccumulation factors, submitted to 

EPA on May 14, 2004; 

• Procedures in DEP Rule Chapter 584 that describe how alternative statewide and sitespecific criteria are to be initiated, reviewed and adopted under state law, submitted to 

EPA on January 11, 2006;67

 

• Revisions made at 38 M.R.S. § 361-A(1-J) and (1-K), enacted as Chapter 330, L.D. 1588, 

Sections 7 and 8, which updated the definitions of "Code Of Federal Regulations" and 

"Federal Water Pollution Control Act" to include their amendments through January 1, 

2005, submitted to EPA on January 11, 2006; 

• Revisions made at 38 M.R.S. § 464(4.A.(1)(c) and (d)); § 465(1.C.(3)) and (2.C.(3)); and 

§ 465-A(1.C), enacted as Chapter 182, L.D. 1304 “An Act Concerning Invasive Species 

and Water Quality Standards,” submitted to EPA on January 11, 2006; 

• Revisions made at 38 M.R.S. § 464(4.A.(1)(e)); § 465(1.C.(4)) and (2.C.(4)); § 465-

A(1.C.(4)); and § 465-B(1.C.(2)), enacted as Chapter 291, L.D. 1274, “An Act to Allow 

the Discharge of Aquatic Pesticides Approved by the Department of Environmental 

Protection for the Control of Mosquito-borne Diseases in the Interest of Public Health 

and Safety,” submitted to EPA on April 8, 2008; 

• Revisions made at 38 M.R.S. § 420(1-B.F) and § 464(4.J) and (4.K), related to testing 

and licensing requirements for waste discharges that were included in LD 515, submitted 

to EPA on January 14, 2013; and 

 

67 Specifically, these provisions are: the requirement in Chapter 584 § 3(A.(2)) that “statewide criteria must be 

initiated in accordance with the petition for rulemaking provisions of the State Administrative Procedures Act, 5 

M.R.S.A., Section 8055”; the provision in the first paragraph of Chapter 584 § 3(B) that site specific criteria “must 

only be adopted by the Board as part of a waste discharge license proceeding pursuant to 38 M.R.S.A. Sections 413, 

414 and 414-A”; and the first two sentences of the second paragraph of Chapter 584 § 3(B). 
50 

• Revisions made at 38 M.R.S. § 464(4.A.(1)(f)); § 465(1.C.(5)) and (2.C.(5)); § 465-A 

(1.C.(5)); and § 465-B(1.C.(4)), enacted as Chapter 193, L.D. 1430, “An Act to Clarify 

the Permitted Use of Aquatic Pesticides,” submitted to EPA on February 27, 2014. 

Since many state and tribal laws that establish WQS include related provisions that are not 

themselves WQS, as defined by the Clean Water Act and EPA’s regulations, EPA routinely 

reviews state submissions and identifies revisions that, while an important element of state law, 

are not WQS requiring EPA review and approval or disapproval pursuant to Section 303(c)(2) of 

the Clean Water Act and 40 C.F.R. part 131. EPA has in the past considered certain discharge 

prohibition exceptions, discharge licensing requirements, and alternative criteria adoption 

procedures in Maine to be WQS revisions and acted on them accordingly.68 However, since the 

Region last considered such a revision in Maine, EPA has clarified how it determines what is or 

is not a new or revised WQS, as summarized in EPA’s 2012 Frequently Asked Questions (FAQ) 

publication on the subject.69 After careful review of Maine’s submissions in light of this 

clarification, EPA finds that the provisions listed above are not WQS requiring EPA review and 

approval or disapproval. 

As noted in the FAQ, one salient feature of a water quality standard is that it includes or 

addresses one of the three core components of WQS: designated uses, water quality criteria 

(narrative or numeric) to protect designated uses, and/or antidegradation requirements for waters 

of the United States. The provisions listed above, in contrast, do not establish, alter, or in any 

other way include or address designated uses, criteria or antidegradation requirements. Rather, 

most of the provisions allow the DEP to issue discharge licenses for certain previously prohibited 

discharges to occur in certain waters, and address compliance and testing requirements for 

certain discharges. In all cases, such discharges would still need to satisfy all applicable water 

quality standards. Therefore, the provisions are more accurately characterized as permit 

implementation provisions rather than water quality standards. The remaining provisions are 

purely procedural in nature, updating federal statutory and regulatory references, and 

establishing processes for adopting alternative criteria and establishing bioaccumulation factors, 

but they do not themselves alter uses, criteria, or antidegradation requirements, or mandate how 

they must be expressed or established in the future. 

EPA has previously written approval letters for some of the above-listed provisions as applied in 

state waters, assuming that they were WQS (such as the discharge prohibition exceptions), or 

without calling out embedded non-WQS language in a longer narrative (such as the state 

adoption procedures in DEP rule Chapter 584). However, under CWA §303(c), EPA only has 

authority to approve or disapprove new or revised state WQS. Therefore, EPA’s prior 

“approval” letters related to these provisions have no legal effect. EPA is hereby clarifying that 

 

68 The latest example of EPA action on discharge prohibition exemptions in Maine as WQS was EPA’s August 19, 

2008 approval of discharge prohibition exemptions related to the discharge of aquatic pesticides for the control of 

mosquito-borne diseases in the interest of public health and safety using methods and materials that provide for the 

protection of non-target species. 

69 EPA, What is a New or Revised Water Quality Standard Under CWA 303(c)(3)? Frequently Asked Questions, 

October 2012. 
51 

in spite of letters that might indicate otherwise, the Agency has not taken action pursuant to 

CWA §303(c) on any of these provisions. 

With respect to the new provisions enacted in L.D. 1304, submitted to EPA on January 11, 2006, 

and L.D. 1430, submitted to EPA on February 27, 2014 (both listed above), it is important to 

note that federal antidegradation regulations and Maine’s WQS require that water quality in 

Outstanding National Resource Waters (ONRWs) be “maintained and protected” (See 40 C.F.R. 

§ 131.12(a)(3) and Title 38 M.R.S. § 464(4)(F)(2)). EPA has interpreted that language to mean 

that states may only allow “some limited activity which may result in temporary and short-term 

changes in water quality” (See 48 FR 51402, November 8, 1983 preamble to changes in 40 

C.F.R. part 131). The new provisions enacted in L.D. 1430 do not alter antidegradation 

requirements. Therefore, in any review of a request to apply pesticides to Class AA or other 

ONRWs, DEP must ensure that such application will result in no more than temporary and short 

term changes in water quality, as well as comply with all other CWA applicable WQS 

requirements. 

4.10 List of Submissions from 2003 through 2014 

DEP submissions from 2003-2014 to which EPA is responding in today’s decision are: 

• August 26, 2003 submission which included enacted legislative chapters from the 2002-

2003 legislative session; 

• May 14, 2004 submission which included statutory amendments and rulemakings from 

2000 to 2004 that had not been previously submitted to EPA ; 

• January 11, 2006 submission which included statutory amendments and rulemakings 

from 2004 and 2005; 

• April 8, 2008 submission which included statutory amendments from the 2007 legislative 

session; 

• December 7, 2009 submission which included statutory amendments from the 2009 

legislative session; 

• May 16, 2013 submission which included statutory amendments from the 2011-2012 

legislative session and 2012 rulemaking; and 

• February 27, 2014 submission which included statutory amendments from the 2013 

legislative session. 

.