ATTACHMENT A

Analysis Supporting EPA’s February 2, 2015 Decision to Approve, Disapprove, and Make No Decision on, Va rious 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 revise d WQS to state waters outside of Indian territories and lands in Maine (“Indian lands”), an d explicitly refrained from taking any action on the WQS for waters in Indian lands. In its decisio n today, EPA is responding to the outstanding new and revised WQS from 2003-2014 as they relate t o waters in Indian lands, and, in the case of some of the WQS, also as they relate to state wa ters 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 di sapprove 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 fo r toxic pollutants for waters in Indian lands except for ammonia, and all but one of the new aqua tic life criteria submitted in 2013 for all waters, including in Indian lands. 1 EPA is also approving a number of other WQS provi sions for waters in Indian lands, as well as Maine’s classifi cations and designated uses for those waters. EPA is disapproving Maine’s human health criteria a s 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 re view.

The bases for two aspects of EPA’s decision today a re 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 hum an health criteria do not protect the designated uses and therefore must be disapproved.

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1 EPA is taking no action on the ammonia criteria an d certain provisions related to bacteria and pestic ides, based on our understanding from discussions with DEP staff t hat DEP will be revising these criteria and provisi ons in light of

recent EPA criteria recommendations and to ensure t he protection of designated uses, nor is EPA taking action on the reclassification of a non-tribal water (Long Cr eek), pending further discussion with DEP. See sec tion 4.8 below. EPA is also taking no action on one of the new phen ol 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 n o 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 revis ed 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 N ation, Passamaquoddy Tribes, Houlton Band of Maliseet Indians, and Aroostook Band of Mic macs. 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 Cl aims Settlement Act (MICSA) Congress granted the State jurisdiction to regulate the envi ronment in the Tribes’ lands, including the authority to set WQS. The Tribes contest that asse rtion, noting especially that state WQS have the potential to determine how much fish they may s afely 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 E PA.

Jurisdiction to set WQS: EPA analyzed the jurisdictional provisions of MICSA extensively, including a careful review of comments from the Tri bes and Maine on the jurisdictional provisions of the statute. EPA concludes that unde r 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 (1 st Cir. 2007). But the Agency also finds that this a uthority is not unconstrained. EPA is required under the Cl ean Water Act to review state WQS, and will approve them when they comply with the Act. In the se circumstances, where Maine is authorized to set WQS in tribal waters, EPA is info rmed 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 wat ers, EPA must harmonize the CWA requirement that WQS must protect uses with the fundamental pur pose 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 In dian Tribes in Maine. One clear purpose of that set aside is to provide a land base on which t hese Tribes could continue their unique

cultures. A critical element of tribal cultural su rvival 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’ sustenanc e practices. Maine general law regulating fish take accommodates sustenance fishing, and in severa l regards also specifically codifies the Tribes’ ability to sustenance fish. The legislativ e record supporting the Indian settlement acts in

Maine makes it clear that the statutes intend to cr eate a land base on which the Tribes in Maine may fish for their sustenance. Therefore, EPA inte rprets the State’s “fishing” designated use, as applied in tribal waters, to mean “sustenance” fish ing; and EPA is approving a specific sustenance fishing right reserved in one of the set tlement 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 supp orting 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 populatio n exercising the sustenance fishing use as the target general population, not as a high-consuming subpopulation of the State. EPA guidance3

calls for WQS that provide a high level of protecti on for the general population, while recognizing that small subpopulations may face grea ter levels of risk. However, the Tribes are not a subpopulation using the waters on their own l ands; they are the population for which that land base was established and set aside. Second, t he data used to determine the fish consumption

rate for tribal sustenance consumers must reasonabl y 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 re lied to develop fish consumption rates for these WQS did not include information about the sus tenance practices of tribal members fishing in their own waters, nor did they represent consump tion levels that were unsuppressed by concerns about pollution. EPA concludes that the b est available data that represent the unsuppressed sustenance fishing practices of tribal members fishing in tribal waters are contained in the Wabanaki Lifeways study, which loo ked at the historic sustenance practices of

the Tribes in Maine.

EPA has received a written legal opinion dated Janu ary 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 t he federal government’s expert agency on matters of Indian law and is charged with administe ring the settlement acts in Maine. Passamaquoddy Tribe v. State of Maine , 75 F.3d 784, 794 (1 st Cir. 1996) (DOI is the department that administers MICSA). DOI has provided EPA impo rtant 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 deci sion on Maine’s WQS, EPA has carefully considered and relied upon the DOI Solicitor’s anal ysis, which is reflected in DOI’s written opinion and is included in the administrative recor d for this decision.

The Remedy: EPA is disapproving Maine’s human health criteria because they are not protective of human health for the target populatio n. They are based on a fish consumption rate of 32.4 grams per day, with the exception of arseni c which is based on 138 grams per day. However, the Wabanaki study indicates that consumpt ion 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 ar senic, 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 Clea n 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 EP A’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

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1 Background

1.1 Overview

On January 14, 2013, the Maine Department of Enviro nmental 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 I ndian Tribes in Maine.

EPA’s review of the State’s submission determined t hat 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 u se the term Indian or tribal “lands” to refer to the entire tribal land base in Maine). Although EP A 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 issu e of applying state WQS in waters in Indian lands in Maine. EPA identified two general areas f or comment. First, has the State demonstrated adequate authority to set WQS in water s in Indian lands? Second, if so, are the WQC that the State submitted based on sound scienti fic 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 2 009 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 withi n Indian lands. Today’s decision addresses all of Maine’s WQS submissions from 2003 through 20 14 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 t o 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 associate d designated uses for these waters. All of the relevant classifications include a designated use o f “fishing,” which the Agency interprets to include sustenance fishing consistent with these Tr ibes’ 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 Passamaquo ddy Tribe. EPA is approving all but one of the State’s aquatic life criteria. EPA has determi ned that Maine’s human health criteria, however, do not adequately protect the designated u se 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 f or waters in Indian lands to the extent necessary t o act on the submissions from 2003 through 2014. EPA intends to act on other pre-2004 WQS applicable to those wate rs 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 S tate’s jurisdiction to establish WQS for such water s or the sufficiency of the State’s WQS for such waters unde r 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 separ ate document EPA will respond to specific comments that interested parties submitted.

1.2 Indian Tribes in Maine

There are four federally recognized Indian Tribes i n Maine represented by five governing bodies. The Penobscot Nation and the Passamaquoddy Tribe ha ve 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 India n Township Reservation. The Houlton Band

of Maliseet Indians and the Aroostook Band of Micma cs have trust lands further north in the State. To simplify the discussion of the legal fra mework that applies to each Tribe’s territory,

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

Tribes” and the Houlton Band of Maliseet Indians an d 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 th em 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 Se ttlement Act (MICSA), which resolved litigation in which the Southern Tribes asserted la nd 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, t he Maine Implementing Act (MIA), which was designed to embod y 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 In dian Tribes, MIA’s provisions concerning jurisdiction and the status of the Tribes are effec tive 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 Se ttlement 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, 1 991, 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 (1 st 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 framew ork for confirming and enhancing

the Tribes’ land base in Maine. For the Southern T ribes, MIA uses the term “Indian territory” to

describe the combination of the Southern Tribes’ re servations, as described in treaties with the States of Maine and Massachusetts, plus 150,000 acr es of land for each Tribe to be held in trust for the Tribes by the United States. 30 M.R.S. § 6 205(1) and (2). As such, the Southern Tribes’ land base is made up of both the reservations conti nuously occupied by the Tribes, and subsequently acquired trust lands.

The land base for the Northern Tribes is made up en tirely of trust lands. MIA provides for the Houlton Band of Maliseet Indians to acquire trust l and, 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 a cquire 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 th e context, EPA will refer to the tribal land

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

as described above includes both reservations and t rust lands; “trust lands” for the Northern Tribes’ land base; and “Indian” or “tribal” lands f or 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 I ndian Reservation); § 6203(8) (defining Penobscot Indian Reservation). The trust lands acq uired for the Maine tribes are the product of modern conveyances. Generally, based on the defaul t Maine property rule under which owners of riparian land also own out to the thread, or mid dle, of most streams, Wilson & Son v. Harrisburg , 107 Me. 207, 212-213 (1910), Indian waters includ e 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 owner s of shore land above the mean high water mark presumptively hold title in fe e 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 i s subject only to the public’s right to fish, fowl, and navigate, and that the rule of law governing ti tles 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 a re not at issue in this matter. Any action EPA has taken to approve M aine WQS for waters outside Indian lands would appl y 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 ripar ian or littoral rights expressly reserved by the original treaties with Massachusetts or by operation of State law. A ny 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. Ho wever, the Common Law of the State, including the C olonial Ordinances, shall apply to this ownership. The jur isdictional rights granted by this bill are coexten sive 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 Sc hool 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 t o 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 Mo ody 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 uncertain ties over what waters are associated with

Indian lands in Maine in a few locations. For inst ance, 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 Governme nt’s position that the reservation includes Penobscot River waters, while the State of Maine al leges it does not. Pending resolution of this dispute, EPA’s decision to approve or disapprove Ma ine’s WQS for Indian waters includes at least some portion of the Penobscot River in the ma in 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 Sept ember 19, 1794 and located between the head

of the tide of that river and the falls below the f orks of that river . . .” as specifically enumerate d

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

It is not necessary or reasonable for EPA to suspen d its decision on the State’s WQS submissions to await an authoritative resolution of disputes ov er the boundaries of Indian waters. If any disputes over reservation boundaries result in an a uthoritative 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 ju risdiction to set WQS in the Northern

Tribes’ trust lands and that the federal statute ra tifies provisions of MIA that provide the State with such authority in the Southern Tribes’ territo ries. Although in both cases the settlement acts provide the State jurisdiction to establish WQS, EP A notes that MICSA provides a different jurisdictional framework for the Northern Tribes th an 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 1 724(d)(4) of this title, all Indians, Indian nations, or Tribes or bands of Indians in th e State of Maine, other than the Passamaquoddy Tribe, the Penobscot Nation, and thei r members, and any lands or natural resources owned by any such Indian, Indian nation, Tribe or band of Indians and any8

lands or natural resources held in trust by the Uni ted 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 l aws of the State, and the civil and criminal jurisdiction of the courts of the State, to the sam e 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 India ns, Indian nations, and Tribes and bands of Indians in the State and any lands or othe r natural resources owned by them, held in trust for them by the United States or by a ny other person or entity shall be subject to the laws of the State and to the civil a nd 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 s tate 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 foun d that the State’s jurisdictional reach in the Northern Tribes’ lands is greater than in the South ern Tribes’ territories. Houlton Band of Maliseet Indians v. Ryan , 484 F.3d 73, 74-75 (1st Cir. 2007). That same ye ar the First Circuit ruled that, even as to the Southern Tribes, MICSA a nd MIA grant the State jurisdiction to regulate surface water discharge permitting. Maine v. Johnson, 498 F.3d 37 (1 st 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 Nort hern Tribes than over the Southern Tribes, which are nevertheless subject to the State’s autho rity to set WQS, it is clear that state law applies to the Northern Tribes, and the State has a uthority to set WQS for waters in these Tribes’

trust lands.

The Aroostook Band of Micmacs has argued that the p assage 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 Mal iseet 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 bet ween 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 th e benefit of the Tribe, nation, or their members, shall be subject to the jurisdiction of th e State of Maine to the extent and in the9

manner provided in the Maine Implementing Act and t hat 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 India ns, Indian nations, and Tribes and bands of Indians in the State and any lands or othe r natural resources owned by them, held in trust for them by the United States or by a ny other person or entity shall be subject to the laws of the State and to the civil a nd 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 re fers to exceptions to the grant of state jurisdiction found elsewhere in the statute, and th ose 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 claim s, child custody, and domestic relations). EPA has carefully considered whether any of the exc eptions 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 j urisdiction 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 pre viously adjudicated the issue of Maine’s authority to regulate water quality protection in t he Southern Tribes’ territories. In 2003, EPA approved the State to issue national pollutant disc harge elimination system (NPDES) permits under the CWA generally in the Southern Tribes’ ter ritories, except for those dischargers where EPA concluded that permitting would qualify as an i nternal tribal matter. MIA section 6206 exempts the Southern Tribes’ internal tribal matter s from state regulation. EPA determined that two tribally owned and operated public treatment wo rks, which served only tribal members on the Tribes’ reservations and had minimal water qual ity impacts at the point of discharge, qualified as internal tribal matters, and thus excl uded those two facilities from the State’s approved permitting program. In Maine v. Johnson, 498 F.3d 37 (1 st 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 t ribal matters] proviso thus reserves to the tribe matters pertaining to tribal membership and g overnance 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 e nvironmental regulation. . . . [W]e readily uphold the position of the EPA and Mai ne that the nineteen non-Indian discharge sources draining into tribal waters can b e regulated by the state. The only real question is the EPA’s carve-out of the two source p oints that are on tribal lands and are owned by Tribe entities. . . .10

In our view, the Settlement Acts make ordinary Main e law apply, even if only tribal members and tribal lands are affected in the partic ular 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 naviga ble waters is not of the same character as tribal elections, tribal membership or other exe mplars that relate to the structure of Indian government or the distribution of tribal pro perty.

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 jurisdic tion to the State includes the area of environmental regulation, certainly as it applies t o surface water discharge permitting. The Agency also finds no basis to distinguish the analy sis in that case as applied to the State’s authority to set WQS for surface waters in the Sout hern Tribes’ territories.

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

Southern Tribes

EPA considered whether, given the jurisdictional pr ovisions 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 a pply 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 i n Indian lands:

[T]he [internal tribal matters] proviso thus reserv es 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 t his characterization of the State’s authority. Strictly speaking, the facts on which the court’s h olding rests only presented the question of the State’s authority to issue waste water discharge pe rmits. Nevertheless, the court’s reasoning in that case makes it clear that this exception to Sta te jurisdiction would not block the State from setting WQS.

When the Agency withheld approval from Maine to per mit the two tribal treatment works, EPA conducted an analysis of the factors the First Circ uit 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 (1 st Cir. 1997); Penobscot Nation

v. Fellencer , 164 F.3d 706, 710-713 (1 st Cir. 1999). In its review of EPA’s decision, the Johnson court found it unnecessary to apply the factors dev eloped in the Akins and Fellencer cases; rather

it concluded that this multi-factor assessment is r elevant only when an area of regulation is11

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

tribal matter. 498 F.3d at 46. The court conclude d 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 a ny closer to the statutory borderline the First Circuit has outlined and, therefore, might pr operly be analyzed using the Akins/Fellencer factors rather than the more categorical analysis i n 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 t he 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 no t agree. Indeed, the Agency concludes that setting WQS is an exercise of jurisdiction even fur ther 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 fra mework, 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 tr ibal treatment works involved only tribal members and would have minimal effect on water qual ity outside the Tribes’ territories. See 498 F.3d at 45 n. 8. EPA cannot make a corresponding f inding 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 regula te only members of the Tribe . . ..” 130 F.3d at 486 (emphasis add ed). On this “foremost” factor, EPA concludes that the WQS program can have regulatory effects be yond 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 settin g of WQS even further from the “(perhaps blurred) statutory borderline” of what qualifies as an inter nal tribal matter under the MIA and MICSA.

In Maine v. Johnson the court was prepared to accept EPA’s finding tha t 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 principl es announced in Maine v. Johnson , EPA concludes that setting WQS does not qualify as an i nternal 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 r eservations provides an exception to the State’s jurisdiction. That right is reserved to the Southe rn 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’s12

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’ su stenance fishing right.

MIA is clear that the basic grant of jurisdiction t o the State includes the authority to apply laws of the State, which include regulations, to the Tri bes’ 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 affe ct the fishing right, one would have to conclude that the State’s regulation of water quali ty is inherently and necessarily inimical to the Tribes’ ability to take fish for their individual s ustenance. 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 sustenanc e. Indeed, as discussed below, EPA is approving many state WQS provisions that EPA has de termined are sufficient to protect aquatic

life. In Maine v. Johnson the court made it clear that decisions about the s cope of the State’s jurisdiction in the Southern Tribes’ territories sh ould be made on the basis of the category of the subject matter at issue – the court specifically re jected EPA’s attempt to find or reject state jurisdiction based on the facts of any particular a pplication of state jurisdiction within a subject matter category. “So we accept the EPA’s factual p remise 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 o f 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. T he impact of a specific state WQS regulation on the Tribes’ sustenance fishing rights might prov ide the basis for a challenge to that specific regulation, but the bare potential for such a speci fic challenge at some point provides no basis for precluding all state regulation of that subject are a. It is possible for the State to exercise jurisdiction to set WQS without necessarily or inev itably interfering with the Tribes’ fishing rights.

Second, if the State does submit a new or revised W QS 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 a pproving 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 oblig ation under the CWA to review and determine whether such new or revised WQS is consis tent 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 t hus provides the mechanism to protect the sustenance fishing use and prevent interference wit h the Southern Tribes’ reserved fishing right. EPA’s oversight of Maine’s WQS is adequate to prote ct the Tribes’ right while maintaining the basic statutory grant of jurisdiction to Maine, inc luding the authority to set WQS, as provided

under MICSA in the first instance.

2.3 The Relationship Among MISCA, Jurisdiction, and the Trust Responsibility13

Several Tribes in Maine commented that it would be inconsistent with the federal government’s trust relationship with the Tribes for EPA to appro ve 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 tru st relationship between the federal government and the Tribes in Maine in the general sense that t he 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 rat ified in MICSA. MICSA impacts the jurisdictional relationship among the Tribes and th e State, within which EPA works to address the Tribes’ interests as appropriate. It is consis tent 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 w ithin 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 overs ee 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 wat ers 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 jurisdicti on 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 Ind ian lands are approvable under the CWA. So the balance of this document will focus primaril y on the requirements of the CWA, as applied to the unique circumstances EPA must address here w here a state is setting WQS for waters in lands that Congress has set aside for federally rec ognized Indian tribes.

The first step in developing and reviewing WQS unde r the CWA is to determine the uses of the waters to which the WQS apply. Here the State is n ot 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 Ag ency to focus on the sustenance fishing use that federal and state law provide for the Tribes i n Maine in waters in Indian lands. In light of14

the sustenance fishing use, the CWA requires the St ate’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 i n 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 w ithout expressly considering or approving the State’s jurisdiction to establish WQS for water s in Indian lands or the sufficiency of the State’s WQS for such waters under the CWA. Since 2 004, 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 trib al 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 i n tribal lands until Congress passed MICSA in 1980. While the State asserted the authority to go vern the Tribes prior to MICSA, the First

Circuit’s decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton , 528 F.2d 370 (1 st Cir. 1975), cast considerable doubt on that propos ition, and the decision in Bottomly v. Passamaquoddy Tribe , 599 F.2d 1061 (1 st Cir. 1979), effectively foreclosed this argument. So any WQS that Maine submitted prior to MICSA’s passa ge could have no legal effect in tribal lands. At that point the State had no clear author ity to set WQS in those waters.

But even as to WQS that Maine submitted following t he passage of MICSA in 1980, EPA’s position is that none of the State’s WQS, whether s ubmitted prior to or following enactment of MICSA, were approved under the CWA for waters in In dian lands. Prior to the Agency’s decision today, EPA has never made a formal determi nation 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 t o protect the uses in those specific waters. Where, as here, waters in Indian lands have a diffe rent designated use ( i.e. , sustenance fishing) than waters outside of Indian lands, the analysis o f 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 p rotective for waters in Indian lands.

In addition, under basic principles of federal Indi an 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 speak ing, primary jurisdiction15

over land that is Indian country rests with the Fed eral Government and the Indian Tribe inhabiting it, and not with the States.”). See als o Okla. Tax Comm’n v. Sac and Fox Nation , 508 U.S. 114, 128 (1993) (“[a]bsent explicit congressio nal direction to the contrary, we presume against a State’s having the jurisdiction to tax wi thin Indian Country . . . .”). Thus, EPA cannot presume a state has authority to establish WQS or o therwise 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 tha t 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 lan ds has not occurred prior to the decision EPA is making today. 6

Maine cites to several actions by EPA employees tha t, in the State’s view, indicate EPA’s recognition that state WQS approved before 2004 app ly in at least some tribal waters. EPA notes that some of those actions applied to stretch es of rivers that either included both tribal and

state waters or that were then and continue to be t he 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 water s. But the Agency concedes that in some instances the Agency appeared to assume, without an y express consideration or decision regarding the jurisdictional or CWA issues, that st ate 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 di scharging into tribal waters complied with state WQS. Simply put, those prior actions were mi stakes that do not affect this decision. At the time, EPA had made no finding that Maine had jurisd iction 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 revi se a considered Agency-wide policy. Puerto

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

3.2 EPA Approval of Water Classifications and Associate d 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 th at criteria be protective of designated uses. In

order to evaluate whether the submitted criteria ar e protective of designated uses, EPA must first approve designated uses for these waters. Accordin gly, EPA also reviewed and is approving

5 Consistent with EPA’s responsibility to consult wi th Indian tribes about decisions affecting their in terests, as embodied in the Agency’s 1984 Indian Policy and EPA ’s more recent Tribal Consultation Policy, EPA woul d 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 consul tations occurred in the context of EPA’s prior deci sions on the State’s WQS submissions, further evidencing that th e Agency’s prior approvals were not intended to ext end to

waters in Indian lands.

6 Indeed, as described above in the Agency’s analysi s of the State’s jurisdictional authority to set WQ S in Indian waters, EPA’s review and assessment of how Maine’s WQS affect tribal uses in Indian waters is an essen tial step in the argument that it is possible to reconcile the S tate setting WQS in Indian waters with the fishing rights that MICSA reserves to Tribes in Maine. Ignoring or sid e-stepping EPA’s role in overseeing Maine’s WQS sub missions as they apply to Indian waters risks creating an ir reconcilable conflict between the jurisdictional gr ant to the State in MICSA and the provision for Tribes in Maine to sust ain themselves on the land base that the Maine sett lement acts established for the Tribes. Respecting EPA’s overs ight role effectively harmonizes those elements of the settlement

acts in Maine.16

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

to EPA for review to date 7 , 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: drin king water after disinfection, fishing, agriculture, recreation in and on the wate r, navigation, and as habitat for fish and other aquatic life. The habitat must be charac terized as free-flowing and natural.

• 38 M.R.S. § 465(2.A) Class A freshwater uses: drink ing water after disinfection; fishing; agriculture; recreation in and on the wate r; industrial process and cooling water supply; hydroelectric power generation, excep t as prohibited under Title 12, section 403; navigation; and as habitat for fish an d other aquatic life. The habitat

must be characterized as natural.

• 38 M.R.S. § 465(3.A) Class B freshwater uses: drink ing water supply after treatment; fishing; agriculture; recreation in and on the wate r; industrial process and cooling water supply; hydroelectric power generation, excep t as prohibited under Title 12, section 403; navigation; and as habitat for fish an d other aquatic life. The habitat must be characterized as unimpaired.

• 38 M.R.S. § 465(4.A) Class C freshwater uses: drink ing water supply after treatment; fishing; agriculture; recreation in and on the wate r; industrial process and cooling water supply; hydroelectric power generation, excep t 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, fishi ng, agriculture, industrial process and cooling water supply, hydroelectric power generatio n, navigation, and as habitat for fish and other aquatic life. The habitat must be c haracterized as natural. This section applies to great ponds (as defined in 38 M.R.S. § 4 80-B (5)), natural lakes and ponds less than 10 acres in size, and impoundments of riv ers 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 mari ne 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 mar ine life. The habitat must be characterized as free-flowing and natural.

• 38 M.R.S. § 465-B (2.A) Class SB estuarine and mari ne water uses: recreation in and on the water, fishing, aquaculture, propagation and harvesting of shellfish, industrial process and cooling water supply, hydroelectric pow er generation, navigation, and as

habitat for fish and other estuarine and marine lif e. The habitat must be characterized as unimpaired.

• 38 M.R.S. § 465-B (3.A) Class SC estuarine and mari ne 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 d esignated 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 beca use they are not directly related to the scope of this decis ion, which is responding to new and revised WQS sub mitted to EPA from 2003 to 2014. These remaining provisions incl ude, for example, definitions, antidegradation poli cies, and WQS implementation policies in regulation and statu te. EPA will review those elements in the coming m onths and make decisions accordingly.17 industrial process and cooling water supply, hydroe lectric power generation, navigation and as a habitat for fish and other estu arine and marine life.

Waters throughout Maine are identified by classific ation in 38 M.R.S. § 467 (classifications of major river basins), § 468 (classifications of mino r 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 ab ove contains designated uses that are consistent with the requirements of Section 303(c)(2)(A) of th e Clean Water Act and 40 C.F.R. § 131.6(a). In addition, EPA has concluded that the classificat ions 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, su bmitted to EPA on December 7, 2009, of Otter Creek, a tributary of Seboeis Stream, and Alder Str eam 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 Us e as “Sustenance Fishing” in Waters

in Indian Lands in Maine

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

The settlement acts in Maine include extensive prov isions to confirm and expand the Tribes’ land base, and the legislative record makes it clea r that a key purpose behind that land base is to preserve the Tribes’ culture and support their sust enance practices. MICSA section 1724

establishes a trust fund to allow the Southern Trib es and the Maliseets to acquire land to be put into trust. In addition, the Southern Tribes’ rese rvations 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 fo r those three Tribes, and laying out clear ground rules governing any future alienation of tha t land and the Southern Tribes’ reservations. Sections 4(a) and 5 of the ABMSA and 7204 of the st ate 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 purp oses 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 traditio nal culture. An important part of the Maine

Tribes’ traditional culture is their sustenance lif e ways. The legislative history for MICSA makes it clear that one critical purpose for assemb ling the land base for the Tribes in Maine was to preserve their culture. The Historical Backgrou nd in the Senate Report for MICSA opens with the observation that “All three Tribes [Penobscot, Passamaquoddy and Maliseet] are riverine in18

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 Ma ine Indians . – Nothing in the settlement provides for acculturation, nor is it th e 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 ou tside entities by providing for tribal governments which are separate and apart from the t owns and cities of the State of Maine

and which control all such internal matters. The S ettlement also clearly establishes that the Tribes in Maine will continue to be eligible fo r 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 sustenan ce fishing. So if a purpose of MICSA is to avoid acculturation and protect the Tribes’ continu ed 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, ABMS A, and MSA include very different provisions governing sustenance practices, includin g 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 s ustenance 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 a re 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 commissio n or any other law of the State, the members of the Passamaquoddy Tribe and the Penobsco t 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 an adromous and catadromous fish when in inland water.” 30 M.R.S. § 6207(9).

The only limitation on the Southern Tribes’ right t o 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’ fishin g 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 indi vidual 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 S outhern 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 Settlem ent 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 t he State might someday interfere with it. By responding to a rhetorical assertion (in italics be low), 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 t he 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 exerc ising their hunting and fishing rights in a manner which has a substantially adverse effect o n stocks in or on adjacent lands or waters. This residual power is not unlike that whi ch other states have been found to have in connection with federal Indian treaty hunting an d fishing rights. The Committee notes that because of the burden of proof and evidence re quirements in Title 30, Sec. 6207(6) as established by the Maine Implementing Act, the S tate 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 ab original right the Tribes have continuously exercised, and shielded that right from state regul ation absent a finding of depletion. DOI’s legal opinion confirms that this statutorily reserved fis hing 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 fishi ng rights is instructive. Essentially, the State o f Maine has adopted into state law and Congress has r atified a reserved fishing right like the rights reserved to other Indian tribes by treaties, execut ive orders, or other statutes. It is axiomatic tha t 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 th e 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 r eserved to the Pacific Northwest tribes “’[t]he20

right of taking fish, at all usual and accustomed g rounds and stations . . . in common with all citizens of the Territory’”). The Southern Tribes’ reserved aboriginal right to t ake fish for their

individual sustenance within their reservations is such a right.

3.3.1.2 Federal Law Framework for Sustenance Fishing in Tru st Lands

Similarly, to understand how the Maine Tribes’ sust enance 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 wh en 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 tr ibe 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 impli cit 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 se tting aside of a reservation ‘for Indian purposes.’”); see also Katie John v. U.S., 720 F.3d 1214, 1230 (9th Cir. 2013) (Reserved wate r 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 wate rs are necessary to fulfill the primary purposes of the reservation.”).

Courts have found an implicit fishing right based o n legislative history indicating that, in setting aside land for a tribe, Congress intended to preser ve a tribe’s fishing culture/practices. See

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

authorized to maintain on the new lands ceded to th em 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 19 88 Hoopa-Yurok Settlement Act did not explicitly set aside fishing rights, it did make cl ear 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 fisheri es was one of its principal assets.”). As explained in greater detail below, there is such le gislative history here.

There is an important distinction between the South ern Tribes’ aboriginal fishing right, which Congress explicitly reserved on those Tribes’ reser vations, and tribal sustenance fishing on the trust lands, which Congress provided for based on i ts 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 ther e is dispute over the scope of the Tribes’ aboriginal resource rights following enactment of M ICSA. See 25 U.S.C. §§ 1722(b) and 1723(b) and Assessment of the Intergovernmental Sal twater 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 t ribal 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 uniqu e culture. As described in detail below, EPA has21

determined that Congress did just that in the Maine settlement acts, and when Congress did so, it acted against the backdrop of the principles outlin ed 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 t o 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 Southe rn Tribes

Both MICSA and MIA make it clear that the land acqu isition 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 resource s 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 ac quisition 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 adde d). “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 th e newly-acquired trust lands:

Under Title 30, Sec. 6207 as established by the Mai ne Implementing Act, the Passamaquoddy Tribe and the Penobscot Nation have t he permanent right to control hunting and fishing not only within their reservati ons, but insofar as hunting and fishing in certain ponds is concerned, in the newly-acquire d 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 MI A was designed to accommodate sustenance fishing practices in the Southern Tribes’ trust lan ds. See transcript of the public hearing held on March 28, 1980 by the Maine Legislature’s Joint Sel ect 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 intende d the trust lands to provide a base for the Tribes to engage in sustenance practices.

As recognized by Congress in MICSA’s legislative hi story, the Southern Tribes’ control of fishing in certain trust waters was specifically co dified in MIA. Section 6207(1) provides that

9 Unlike MICSA, when MIA refers to Penobscot and Pas samaquoddy trust lands, it uses the term “land acqu ired by the secretary [of Interior] for the benefit” of eac h tribe, without reference to natural resources. C ompare 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 tho se lands would include the attendant natural resour ces 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 r esources, 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 ac res in size. Those ordinances have to be equally applicable to I ndians and non-Indians except that the Indians can make special provisions for sustenance hunting . . .“ and fishin g per MIA § 6207(1). Id. at 151.22

the Southern Tribes have exclusive authority to ena ct 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 de pleting fish stocks. MIA specifically anticipates that any tribal ordinances regulating f ishing in these waters “may include special provisions for the sustenance of the individual mem bers of the Passamaquoddy Tribe or the

Penobscot Nation.” Id

.

As to greater ponds and rivers and streams in or al ong 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 ap pointed by the State and the Southern Tribes. 30 M.R.S. § 6212. MIA provides that commi ssion the exclusive authority to promulgate fishing rules in these waters. When it does so “th e 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 ec onomic independence of the tribes, [and] the traditional fishing techniques employed by and cere monial 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 establishmen t of trust lands for the Southern Tribes to provide a land base in which the Tribes can exer cise 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, al though still sharply limited, role for the State, through the commission, to participate in th e development of fishing regulations on certain

of the waters in the trust lands. But in exercisin g even that authority, the commission is charged with considering the Tribes’ sustenance fishing pra ctices. Therefore, it is clear that a critical purpose behind establishing the Southern Tribes’ tr ust 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 Northe rn 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 bas e in which the Tribes are able to exercise sustenance fishing practices to the extent consiste nt with the legal limits on their fishing. Again,

similar to the situation for the Southern Tribes’ t rust lands, EPA is not concluding that there is an aboriginal fishing right reserved to the Northern T ribes on their trust lands. But the Agency does

conclude that there is sufficient evidence in the l egislative record to indicate that Congress intended the Northern Tribes to engage in sustenanc e practices on their trust lands to the extent they could.

11 See memorandum from Ralph Abele to the file for th is decision, regarding Effects of Maine Fishing Reg ulations on Sustenance Fishing by Maine Tribes, dated Januar y 30, 2015.23

Authority to establish the Northern Tribes’ trust l ands came in several rounds of legislation. The first involved the Maliseets, who came to the negot iations 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 purp ose 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 d efined 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 in to trust for the Maliseets, it specifically acknowledged that “[a]ll three tribes [Penobscot, P assamaquoddy and Maliseet] are riverine in their land-ownership orientation.” Sen. Rep. No. 9 6-957, at 11. Congress also specifically noted that one purpose of MICSA was to avoid acculturatio n of the Maine Tribes:

The Settlement will lead to acculturation of the Ma ine Indians. – Nothing in the settlement provides for acculturation, nor is it th e 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 ou tside entities by providing for tribal governments which are separate and apart from the t owns and cities of the State of Maine

and which control all such internal matters. The S ettlement also clearly establishes that the Tribes in Maine will continue to be eligible fo r all federal Indian cultural programs.

Id . at 17. Congress’s purpose in providing for the e stablishment of the Maliseet trust lands was to provide a land base on which the Tribe could mai ntain its “cultural integrity.” The Maliseets have submitted extensive comments documenting the s ustenance 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 author ize trust lands to provide a resource base for the Tribe. In contrast to MIA’s language descr ibing 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 m ay 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 trus t for the Aroostook Band of Micmacs . . ..”).

MSA further defines natural resources to include fi shing 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 declare d that:

It is now fair and just to afford the Aroostook Ban d of Micmacs the same settlement provided to the Houlton Band of Maliseet Indians fo r the settlement of that Band’s claims, to the extent they would have benefited fro m 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 Acqu isition Fund for the purposes of acquiring land or natural resources for the Band an d for no other purposes. Land or natural resources acquired within the State of Main e 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 me an “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 “an y 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 fishi ng rights.” Id . at § 3(3) and (4). As with the Maliseets, Congress clearly intended that the Micma cs’ trust lands could encompass fishing rights.

The Senate conference report from the Select Commit tee 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.” 10 2 S. Rpt 136 (1991). The report describes the cultural practices of the band, including its histo ric homeland range along the west bank of the

St. John River. “The ancestors of the Aroostook Mi cmac made a living as migratory hunters, trappers, fishers and gatherers until the 19 th century.” It goes on to note that “[t]oday, witho ut 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 ov er the centuries. To the contrary, this community in Northern Maine has demonstrated an und aunted collective will toward

cultural survival.

As with the Maliseets, it is clear Congress intende d to establish a land base for the Micmacs that

would enable the Tribe to secure its “cultural surv ival” and avoid acculturation. Congress intended for the Northern Tribes’ trust lands to pr ovide a “subsistence base” on which the Tribes25

could assure their continued existence as a unique culture. And Congress was aware that part of

that subsistence base for the Northern Tribes was t heir sustenance fishing practices.

While Congress intended that the Indian lands in Ma ine provide a land base to support all the Tribes’ sustenance practices, it ratified dramatica lly different regulatory frameworks within which the Southern and Northern Tribes could operat e 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 t rust 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 reso urces, which includes fishing rights. So unlike the Southern Tribes, the ability of the Northern Tr ibes to exercise their sustenance fishing practices is potentially subject to regulation dire ctly 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 th ese 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 se tting 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 fish ing. As analyzed in the review of state fishing regulations supporting this decision, it appears st ate fishing regulations applicable to the Northern Tribes’ trust lands do not impose limits t hat would prevent individual members of the Northern Tribes from taking fish sufficient to supp ort a sustenance diet. 12 Further, under state law, the Department of Inland Fisheries and Wildlif e 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 th e same kind of procedural and burden of proof protections MIA prov ides for the Southern Tribes’ fishing rights, it still requires the State to have a legitimate, n on-arbitrary reason for limiting the take in the Northern Tribes trust lands based on the need to pr eserve 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 t heir trust lands.

3.3.1.3 Passamaquoddy Marine Sustenance Fishing

The Passamaquoddy Tribe’s Pleasant Point reservatio n 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 surv ived the passage of MICSA. See 25 U.S.C. §§ 1722(b) and 1723(b) and Assessment of the Intergove rnmental 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 t his decision, regarding Effects of Maine Fishing Re gulations on Sustenance Fishing by Maine Tribes, dated Januar y 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. Non etheless, 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 T ribe exercised subsistence practices on its reservations, including the Pleasant Point Reservat ion. The Senate Report’s discussion of Special Issues noted that “[p]rior to the settlemen t, Maine law recognized the Passamaquoddy Tribe’s and Penobscot Nation’s right to control Ind ian 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 Senat e Report then goes on to describe in detail MIA’s provisions for the reserved sustenance fishin g right of the Southern Tribes. Sen. Rep. No. 96-957 at 16-17. While some dispute whether the So uthern Tribes’ sustenance fishing extends into marine waters, at a minimum Congress understoo d that the Passamaquoddy Tribe fished for

its sustenance on its reservation and that the Stat e had accommodated that practice under state

law.

Notably, Maine has continued its practice of recogn izing and providing for the Passamaquoddy Tribe’s sustenance marine fishing practices under s tate 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 us e if the tribal member holds a valid sustenance fishing license issued by the tribe, nat ion or band . . ..” That same subsection goes on

to define “sustenance use” as:

. . . all noncommercial consumption or noncommercia l 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, se ction 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 sectio n imposes seasonal limits on the taking of

sea urchins and limits on the number of lobster tra ps 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 dis pute 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 con cluding, however, that even if EPA accepts the State’s position on its ability to regulate the Pas samaquoddy Tribe’s marine fishing practices, state law makes ample provision for sustenance fish ing 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 to27

serve as a land base for the Tribe’s exercise of su stenance 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 sust ain 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 Mai ne provide for the Tribes to exercise sustenance fishing practices on waters in Indian la nds in Maine. The statutory mechanism supporting this conclusion is quite different depen ding on which element of Indian lands is involved. But the fundamental conclusion that Cong ress understood and intended that the Tribes be able to sustain their unique cultures and sustai n themselves on Indian lands in Maine is clear.

EPA concludes that the purpose to which Congress de dicated 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 th eir 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 t he fish that tribal members are consuming is safe to eat. EPA does not agree with this narrow a pproach to the relationship between the provisions for tribal sustenance practices on the o ne 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 s upported by water quality sufficient to ensure that tribal members can safely eat the fish for the ir own sustenance.

There are several examples of the courts finding th at 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 meanin gful. 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 traditi onal 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 withdraw als 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 fis h commercially in the Great Lakes found to include a right to temporary m ooring of treaty fishing vessels at municipal marinas because without such mooring the Indians co uld not fish commercially).

Another line of cases focuses on water quantity suf ficient to support fish habitat. In United

States v. Adair , the Ninth Circuit held that the tribe’s fishing r ight implicitly reserved sufficient

waters to “secure to the Tribe a continuation of it s 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 fro m the river to fulfill the purposes of the reservation); Arizona v. California , 373 U.S. 546, 598-601 (1963) (creation of reserva tion implied intent to reserve sufficient water to satis fy present and future needs).28

The preceding cases focus on fishing rights, and th e attendant or implicit requirement that those fishing rights not be denied through collateral act ion impairing that right. Analogously, when diminished water quality has hindered tribal uses o f 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 su fficient 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 upstrea m from an Indian reservation were required to take steps to decrease the salinity of the river reaching the tribe’s reservation so that “the Trib e receives water sufficient for cultivating moderatel y 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, whe n 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 purpos e or use and, to the extent possible, ensure that its actions protect that purpose or use. If a trib e 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 defeate d. So too here, it would defeat the purpose of MIA, MICSA, MSA and ABMSA if the Maine Tribes canno t 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 i nterpretation 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 q uality standards, could have on the Tribes’ ability to safely engage in their sustenance fishin g 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 t he State. Therefore, it is incumbent upon EPA when applying the requirements of the CWA to harmon ize those requirements with this Congressional purpose.

3.3.3 Tribal Fishing Rights, the CWA, and the MICSA Savin gs Clauses

Accordingly, as explained in more detail below, EPA is identifying “sustenance fishing” to be a designated use in tribal waters, and is disapprovin g 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 jurisdi ction 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 sp ecifically provides for a land base for the Maine Tribes that is set aside for the purpose of p reserving the Tribes’ culture and sustenance practices, in the Agency’s implementation of the CW A, which requires that water quality criteria protect designated uses and be based on sound scien tific rationale. Unless EPA acts to ensure that the Tribes are able to safely exercise their s ustenance 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 wa ters, it is giving effect to MICSA within the29

framework of Agency oversight of WQS provided for i n the CWA. It certainly cannot be the case that the savings clauses in MICSA somehow oper ate to prevent the government from addressing MICSA itself.

In addition, the savings clauses cannot block opera tion 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 an d 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,” n or “affects or preempts the ... regulatory jurisdiction of the State of Maine...,” it is not blo cked 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 197 2, and section 1735(b) applies only to laws enacted in and after 1980.). Nothing about EPA’s o versight 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 t he 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 act ion does not accord the Indian Tribes in Maine a “special status or right.”

EPA also considered whether, in looking to the fede ral 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 t hreshold matter, the MICSA savings clauses appear to be drafted entirely with Congressional st atutory 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 th e time MICSA passed will apply in Maine if the

conditions of that section are met. The formulatio n 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 se ction 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 sav ings 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 ref erencing certain principles of federal common

14 Section 1735(b) is the companion “savings” provis ion to section 1725(h), and it blocks the applicati on of federal

law enacted after 1980 if that law would benefit th e Tribes and affect or preempt the application of s tate law. That

section refers to “enacted Federal law” and include s the idea that a federal law may apply in Maine if it is made specifically applicable in Maine. This provision a lso appears aimed at statutes that Congress enacts where Congress has the opportunity to decide whether to call out M aine in particular. The Senate Report on MICSA con firms this reading: “ Subsection 16(b) [codified as section 1735(b)] provides a rule of c onstruction 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 provisio ns were designed to operate in combination to addre ss 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 t he 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 con tinue 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 la w 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 cl assification 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 fi shing 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: “Notwithstan ding any rule or regulation promulgated by the commission or any other law of the State, the m embers of the Passamaquoddy Tribe and the Penobscot Nation may take fish, within the boundari es of their respective Indian reservations, for their individual sustenance subject to the limitati ons of subsection 6.” 30 M.R.S. § 6207, sub-§ 4. “Fish” is defined to mean “a cold blooded compl etely 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 whe n in inland water.” 30 M.R.S. § 6207, sub-§ 9.

These provisions clearly codify a tribal right of s ustenance fishing for inland, anadromous, and

catadromous fish in the inland waters of the Penobs cot Nation’s and Passamaquoddy’s

reservations. 15 This right is subject only to 30 M.R.S. § 6207, s ub-§ 6, which authorizes Maine’s Commissioner of Inland Fisheries and Wildlife to, a mong 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 fi sh stocks in waters outside of the boundaries of lands or waters subject to regulation by the Pas samaquoddy 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 g uidance regarding how it determines what is or is not a new or revised WQS, summarized in EPA’s 20 12 Frequently Asked Questions (FAQ) publication on the subject. 16 As explained in the FAQ, EPA considers four quest ions in making this determination, and in this case, all four ques tions are answered in the affirmative. First,

15 EPA is taking no position here on whether this cod ified right includes or excludes fish in marine wat ers. See section 3.3.1.3, above. EPA is approving these pro visions for inland waters where there is no ambigui ty.

16 EPA, What is a New or Revised Water Quality Standard Und er CWA 303(c)(3)? Frequently Asked Questions

, October 2012.31

these provisions are legally binding and were estab lished as a matter of state law. Second, they include and address one of the three core component s of a water quality standard (i.e., a designated use), since they articulate a specific f ishing use for the specified waters. Third, they express or establish the desired condition of the w aters, 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 t o 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 qual ity standard since they have not previously been approved by EPA.

Based on this evaluation, EPA has determined that 3 0 M.R.S. § 6207, sub-§§ 4 and 9, constitutes a new or revised water quality standard, specifical ly 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 t he designated use of sustenance fishing for inland, anadromous, and catadromous fish, applicabl e to all inland waters of the Southern Tribes’ reservations in which populations of fish are or ma y 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 S outhern Tribes’ Trust Lands

As explained above, EPA is approving the State’s de signated use of “fishing” as it applies to

waters in Indian lands. In inland waters of the So uthern Tribes’ reservations EPA is also approving a specific additional designated use of s ustenance fishing, as explained immediately

above. In the trust lands for all the Tribes in Ma ine and the marine waters of the Passamaquoddy Tribe’s reservation, EPA must determine how to inte rpret the fishing use that EPA is approving for those waters. EPA concludes that to protect th e 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 sustenanc e 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 gen erally assigns to a state the responsibility of determining the designated uses in its waters (s ubject 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 subj ect 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 wh ether such WQS have been submitted by the State to EPA fo r review, or on where in state law they are codifie d. FAQ at 2.

19 EPA interprets this designated use of sustenance f ishing as not applying to inland waters that are in herently incapable of sustaining fish populations, such as m ost ephemeral streams and vernal pools.

20 EPA interprets the designated “fishing” use for th e inland waters of the Southern Tribes’ reservation s in the same manner. However, because EPA is also approving a s pecific 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 speci fic 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 fra meworks by recognizing that the State’s designated fishing use under the CWA must include t he concept of sustenance fishing as provided for in the settlement acts. To do otherwi se would run the risk that state WQS could be based on assumptions about fish consumption rates t hat could lead to criteria that fail to protect the Tribes’ ability to safely consume fish for thei r 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. There fore, the Agency will interpret the designated fishing use to include the ability of tr ibal members to safely take fish for their

individual sustenance.

The extent to which existing state law either codif ies or at least accommodates tribal sustenance fishing supports this approach to harmonizing the s ettlement acts with the structure of the WQS program under the CWA. As described above, MIA cod ifies an express provision for sustenance fishing in the Southern Tribes’ trust lands. The s tate fishing code as it applies to waters in the Northern Tribes’ trust lands imposes take limits th at 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 su stenance. 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 confli ct with state law governing how the Tribes may

use these waters.

As described above, EPA acknowledges that the Tribe s’ sustenance fishing practices are not free from state regulation. The State has varying degre es of authority to regulate the quantity of fish that can be taken depending on the type of Indian l and involved. In the Southern Tribes’ reservations, the State has very narrow authority t o set limits in the reservations to prevent depletion of fish stock in waters outside the South ern 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 takin g of fish to manage fisheries for their protection and preservation is not inconsistent with the settlements acts’ provision of sustenance fishing in tribal waters an d EPA’s identification of “sustenance fishing” as the designated use for these waters. Neither do es the State’s authority to limit take mean that state water quality criteria need not protect suste nance fishing in those waters. Water quality criteria must be sufficient to protect the designat ed 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 Qu ality 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, a nd otherwise serve the purposes of the CWA. 22
Any new or revised standard adopted by a state unde r 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 a nd consist of three principle elements: (1) the "designated uses" of the state's waters, such a s public water supply, recreation, propagation of fish, or navigation; (2) "criteria" specifying t he amounts of various pollutants, in either numeric or narrative form, that may be present in t hose waters without impairing the designated uses; and (3) antidegradation requirements, providi ng 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 th ese three elements of WQS.

In accordance with CWA § 303(c) and 40 C.F.R. §§ 13 1.5 and 131.11, EPA must ensure that

new or revised criteria are based on sound scientif ic rationale and contain sufficient parameters or constituents to protect designated uses.

4.2 EPA’s Decision to Disapprove Maine’s Human Health C riteria for Waters in Indian Lands because They Do Not Protect the Designated Use of S ustenance Fishing in Waters in Indian Lands in Maine, and to Approve Maine’s Cance r Risk Level of 10 -6

4.2.1 Maine’s Human Health Criteria Submitted to EPA on M ay 14, 2004, January 11, 2006 and January 14, 2013

On May 14, 2004, DEP submitted revisions to the hum an health criteria for mercury at 38 M.R.S. § 420(1-B.A.(2)) to EPA for review and appro val 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 r eflected 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 th at are authorized to implement a WQS program. Sinc e EPA’s decision today relates to a state’s WQS program, th e discussion of general statutory and regulatory re quirements and guidance are framed in terms of state actions only.

23 HHC are established to protect human health from e xposure to pollutants that occur through the ingest ion of water and/or contaminated fish and shellfish. Any human health criterion for a toxicant is based on at leas t three interrelated considerations: cancer potency or syst emic toxicity, exposure (e.g., fish consumption rat e), and risk

characterization. http://water.epa.gov/scitech/swguidance/standards/h andbook/chapter03.cfm#section1334

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 acro lein and phenol, and revised criteria for arsenic (discussed separately below), to EPA for re view and approval. Similar to the 2006 HHC, the new HHC for acrolein and phenol were based on t he 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 W aters in Indian Lands

4.2.2.1 EPA Guidance

As explained in EPA’s Methodology for Deriving Ambient Water Quality Crit eria for the Protection of Human Health (the “2000 Human Health Methodology” or “2000 Guida nce”), EPA recommends that states provide adequate protect ion from adverse health effects to the general population, as well as to highly exposed po pulations, 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 ra tes (“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 stro ngly recommends that states use local or regional data over the default values. EPA has als o 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 C hapter 584, the mercury criteria in 38 M.R.S. § 420 (1-B.A.(2))

were based on the Maine Bureau of Health Fish Tissu e Action Level of 0.2 mg/Kg, which was derived usin g a fish consumption rate of 32.4 g/day. See Development of Ambient Water Quality Criteria for M ercury, 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 Crit eria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, W ashington, D.C. EPA-822-B-00-004, p. 2-2. Available at: http://www.epa.gov/waterscience/criteria/humanhealt h/method/complete.pdf

26 Id., pp. 1-12 and 1-13.35

when a group’s consumption rate is artificially dim inished due to perceptions of pollutant

contamination of the fish. 27

4.2.2.2 Tribal Sustenance Fishers to be Protected as the Ta rget Population in Tribal Waters

EPA concludes that when analyzing how the WQS progr am 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 d etermining the appropriate fish consumption rate applicable in those waters and weighing the ri sk level to which tribal members should be exposed. Congress set aside Indian lands to provid e a place for the Tribes to reside and to exercise their sustenance practices. Therefore, th at tribal population and its sustenance fishing use must be the focus of the risk assessment suppor ting water quality criteria to adequately protect that use. To do otherwise risks underminin g the purpose for which Congress established

and confirmed the Tribes’ land base.

EPA’s 2000 Human Health Methodology provides that w hen 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. Gene rally the guidance recommends that states consider how to protect both susceptible and highly exposed populations when setting criteria.

When choosing exposure factor values [including fis h 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) mo st susceptible to that pollutant. In addition, highly exposed populations should be cons idered when setting criteria. 28

EPA’s approach in this guidance is to recommend pro tection of the general population based on fish consumption rates designed to represent “the g eneral 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 popula tions to target for protection using either statewide criteria or more geographically focused s ite-specific criteria.

The 2000 Guidance does not directly speak to the un ique 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 ot her 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 si tuation, informed by the settlement acts. As discussed below, the settlement acts lead EPA to co nsider the Tribes to be the general target population in their waters, and the Guidance’s reco mmendations on exposure and cancer risk for the general target population can be applied accord ingly.

27 EPA 2013, Human Health Ambient Water Quality Crite ria and Fish Consumption Rates: Frequently Asked Questions, page 2. Available at: http://water.epa.gov/scitech/swguidance/standards/c riteria/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 th e waters in tribal lands where tribal members are the exclusive or predominant population. See 3 0 M.R.S. § 6206(1) (Penobscot Nation and Passamaquoddy Tribe control “the right to reside wi thin the respective Indian territories” as an internal tribal matter.) Some of those lands and t he waters in them are subject to a statutorily reserved tribal fishing right; some are set aside f or the purpose of giving the resident tribe a land base on which to exercise traditional sustenance pr actices. What all the waters in these Indian lands have in common is, as explained above, that t he 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, con sistent with the purpose of the settlement acts to preserve the Tribes’ culture, these tribal membe rs intend to fish for their sustenance. They are not a highly exposed or high-consuming subpopulatio n 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 a nd approved a designated sustenance fishing use applicable to waters in these Indian lands. Th at designated use requires the Agency to focus its analysis on sustenance fishers as the target ge neral 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 esta blished Indian lands in Maine for the clearly identifiable purpose of allowing the Tribes to sust ain themselves on their own lands and waters.

A similar analysis applies to another critical fact or in deriving human health criteria, the cancer risk level. For carcinogenic pollutants, EPA’s 200 0 Guidance recommends that states protect the general population to a level of risk no greater th an one in one hundred thousand to one in one million (1 x 10 -5 to 10 -6 ) of an additional cancer occurring in that populat ion. Maine DEP has

selected 10 -6 as the level of risk that must be used to establis h human health criteria for carcinogenic pollutants, with the exception of arse nic. Maine Rule Chapter 584 § 4. EPA’s 2000 Guidance indicates that if there are highly ex posed groups or subpopulations within that target general population, such as subsistence cons umers, 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 appr oving Maine’s recently submitted revision to its human health criterion for arsenic as it applie s to waters outside Indian lands. The Agency analyzed whether the State’s revised arsenic criter ion 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 dev eloping HHC for waters in their own lands, and to expose them to levels of risk above what wou ld be reasonable for the general population of the State. Therefore, the CWA requires that whe n 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, th e general population has the right to pass through the waters in Indian lands. The presence of some nonmembers fishi ng on these waters, however, does not change the fa ct that the resident population in the Indian lands is made up of tribal members who expect to fish for their sust enance in the waters in Indian lands pursuant to the settlement a cts.

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 appro ving that provision in Chapter 584 to apply to waters in Indian lands, as discussed furth er below.

4.2.2.3 Fish Consumption Rate

In evaluating the adequacy of Maine’s HHC to protec t 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 wou ld be relevant and appropriate to consider in determining an adequate sustenance fishing consumpt ion 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 part 31 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 informatio n about fish consumption rates to develop the 2006 HHC, the Chem Risk Study contains the only localized

data that DEP used. EPA reviewed the ChemRisk Stud y as well as additional information about the Study contained in comments from a primary auth or 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 r elevance to the target tribal populations’ sustenance fish consumption rates in waters in Indi an lands.

In 1990, to characterize the rates of freshwater fi sh 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 r eport the number of freshwater fish caught in Maine, their species, and the average length of eac h fish that was eventually consumed by them, including fish caught by other members of the respo ndent’s household and by individuals outside the household. Along with other demographic inform ation, respondents were asked to selfidentify their ethnic background (white/non-Hispani c, Hispanic, Native American, Asian/Pacific Islander, Black, or other). Of the 2,500 surveys m ailed, 1,612 were completed and returned. Of these, 1,053 anglers reported having consumed fresh water and anadromous fish obtained from Maine inland waters during the 1989-1990 ice fishin g season or 1990 open water fishing season.

The 95 th 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-hea lth/eohp/fish/documents/action-levels-writeup.pdf

32 ChemRisk, A Division of McLaren Hart, and HBRS, In c., 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, 1 3:4, 737-745 (1993); http://dx.doi.org/10.1577/1548-8675(1993)013<0737:E COFFA>2.3.CO;238

According to the Study, 148 Native Americans partic ipated in the survey (11% of total participants), and 96 of those reported consuming f reshwater fish that had been sport-caught. 33
The consumption rate for the Native American partic ipants equaled or exceeded the rate of all other population groups at the 66 th , 75 th , and 90 th percentiles 34

, and the 95 th percentile for Native Americans was nearly double the 95 th percentile for the next highest population group. 35
However, the maximum rate reported by the Native Am ericans 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 r ate 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

97 th percentile FCR for Maine recreational anglers for all waters, and the 94 th 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 suste nance fishing designated use for waters in Indian lands is protected by Maine’s HHC, EPA consi ders 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 p opulation rather than as a highly exposed subpopulation.

Maine’s FCR is based primarily on statewide data, w hich EPA’s 2000 HH Methodology generally prefers over the use of national data. H owever, it is not based on localized data for the specific waters in Indian lands or the target triba l populations. The ChemRisk Study was not intended to be, nor was it, a survey of tribal sust enance fishers in tribal waters. The survey was sent to state-licensed recreational anglers, but tr ibal 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 consumpt ion rate for tribal sustenance fishers in tribal

waters.

In addition, the Study does not reflect unsuppresse d fish consumption levels. At the time the ChemRisk survey was conducted, Maine had issued fis h consumption advisories for the main stem of the Penobscot River, where the Penobscot Na tion 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 Sebasticoo k River in 1990. 40 DEP has acknowledged that “public awareness of historical p ollution in industrialized rivers can be expected to have suppressed fish consumption on a l ocal 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 submitt ed to EPA January 14, 2013.DEP, page 16.

37 Maine RTC, May 25, 2012, page 20.

38 Maine DEP testimony to the Maine Legislature, Apri l 25, 2011, p. 3.

39 Id., p. 19.

40 Id., p. 20.39

“estimates of fish consumption for rivers and strea ms as well as the inclusive ‘all waters’ category are likely to have been affected to some d egree.” 41

Although the responses were not tallied and not ana lyzed in ChemRisk’s report, the ChemRisk survey did include questions regarding the impact o f fish consumption advisories. EPA analysis of the survey response data 42 indicates that 35% of respondents (556 individuals ) were aware of the advisories during the time of the survey. Of t he 160 respondents who reported that they ate fish from locations covered by fish consumption adv isories, 82% (135) reported that the advisories affected whether they kept the fish caug ht 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 t hat avoidance affected their total fish consumption. Nonetheless, it is clear that the exi stence of the advisories did result in some anglers reducing their take from those rivers.

EPA also reviewed the results of the Penobscot Nati on’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 conclusio n 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 P enobscot River, and a majority (66.7%) stated that they had concerns about eating fish from the r iver. 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 pollu tion. 47

4.2.2.3.2 Wabanaki Traditional Cultural Lifeways Exposure Sce nario

In considering whether there are other sources of l ocal 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 (“Waba naki 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 Mai ne Tribes’ traditional cultural uses of natural resources, and to present the information in a form at that could be used by EPA to evaluate whether or not tribal uses are protected when EPA r eviews or develops water quality standards in

Indian lands in Maine. 48 It is relevant to contemporary water quality beca use 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 Stu dy, 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 Sce nario , prepared for EPA in collaboration with the Maine Tribes, p.7, Ju ly 9, 2009.40

the Study “is to describe the lifestyle that was un iversal when resources were in better condition and that some tribal members practice today (and ma ny more that are waiting to resume once restoration goals and protective standards are in p lace).” 49 It provides a numerical representation of the environmental contact, diet, and exposure pa thways of the traditional tribal lifestyle, including the use of water resources for food, medi cine, cultural and traditional practices, and recreation. The Study acknowledges that “the Waban aki 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 nec essary to survive in the Maine environment and support tribal traditions. Along with single, best -professional judgment estimates for direct exposures (inhalation, soil ingestion, water ingest ion) 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, seaso nal patterns, dietary breadth, abundance, and food storage. From these they evaluated the relati ve proportion of major food groups, including fish, as well as nutritional information, total cal ories and quantities of foods. This resulted in an estimate of a nutritionally complete diet for the a rea 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 Wabanak i Study identifies three traditional lifestyle models, each with its own diet:

1. Permanent inland residence on a river with anadr omous fish runs (“inland anadromous”),

2. Permanent inland residence with resident fish on ly (“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 reso urces 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 Lifes tyle Model 53

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 consump tion 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 tha t could be modified, based on additional information, to take into account present day circu mstances related to the species composition of available fish. For example, in developing its 201 4 tribal water quality criteria, the Penobscot Nation used a FCR of 286 g/day. The Nation explain ed that it chose the inland non-anadromous total FCR of 286 g/day because, although the Penobs cot lands are in areas that would have historically supported an inland anadromous diet (w ith total FCR of 514 g/day), the contemporary populations of anadromous species in P enobscot waters are currently too low to be harvested in significant quantities. 55

4.2.3 Disapproval of Maine’s HHC Because They Are Based o n FCRs that Fail to Protect Sustenance Fishing

EPA is today disapproving, for waters in Indian lan ds, 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 a ll human health criteria in DEP Rule Chapter 584, Surface Water Quality Criteria for Tox ic 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 Quali ty Criteria for Toxic Pollutants, Appendix A, as well as the last sentence in Ch. 584, § 5.C r elated to the fish consumption rate, submitted to EPA on January 14, 2013. The basis for the disappro val is that the HHC do not protect the sustenance fishing use in those waters. For the re asons discussed above, Maine’s 32.4 g/day FCR is not representative of an unsuppressed susten ance fish consumption rate by tribal

members in waters in Indian lands.

In the absence of a local survey of current fish co nsumption, adjusted to account for suppression, that documents fish consumption rates for sustenanc e fishing in the tribal waters, EPA finds that the Wabanaki Study contains the best currently avai lable information for the purpose of deriving an FCR for HHC adequate to protect sustenance fishi ng 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 mode l only.

55 Penobscot Nation, Department of Natural Resources, Response to Comments on Draft Water Quality Standar ds

, 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 tr ibal populations. 56 The Study uses a sound methodology (peer reviewed, written by a range of e xperts in risk assessment and anthropology). It presents a range of FCRs from 286 g/day (freshwa ter 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 lig ht 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 substantiall y 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 consi stent 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 w ater quality standard, it must "specify the changes" necessary to meet the applicable requireme nts of the Act and EPA's regulations. The CWA requires that this disapproval of Maine’s human hea lth criteria for waters in Indian lands be addressed in a timely manner. In the first instanc e, the CWA and EPA’s regulations provide the State up to 90 days to revise its WQS, and EPA pref ers that Maine address this disapproval under its regulatory development process. However, if the St ate does not adopt necessary changes, EPA will propose and promulgate appropriate human health cri teria for waters in Indian lands in Maine.

To address this disapproval action, Maine must deve lop 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 co nsumption, the Wabanaki Study is most relevant for Maine to consider in revising human health crit eria 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 d erivation of criteria protective of contemporary tribal sustenance fishing. In addressing the disap proval, 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 i nto 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 wate r quality criteria for carcinogens be based on

a CRL of 10 -6 for all pollutants except arsenic. DEP Rule Chapte r 584 § 4. This CRL is consistent with the range of CRLs that EPA consider s 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 T ribes are the target general population for waters in Indian lands. EPA is ther efore 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 su stenance 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 disapprovin g Maine’s arsenic criteria along with all of the

other HHC for waters in Indian lands due to an inad equate 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 ar senic, 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 thes e waters, not as a subpopulation. Based on the analy sis 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 Crit eria for Acrolein for the Consumption of Organisms Only and for the Consumpti on of Water and Organisms, and Phenol for the Consumption of Organisms Only, and t o Take No Action on Phenol for the Consumption of Water and Organisms, in Waters Outsi de Waters in Indian Lands

For all waters in Maine except for waters in Indian lands, EPA approves the follo wing 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 organi sms 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 c urrent 304(a) recommended criteria for non-carcinogens. EPA updated recommended human hea lth criteria for acrolein and phenol in 2009 based on new Integrated Risk Information Syste m Reference Doses (RfDs) for the pollutants 59 . 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 t he equations used other than the new RfDs. The

criteria calculations are summarized in attached Ta bles 1 and 2 below.

Table 1 – Calculation of Approved Acrolein Human He alth 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 Heal th 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 he alth 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 pursua nt 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 pheno l criteria for the consumption of water and organisms to address a mathematical error made in t he criteria derivation. Therefore, at this time EPA is not taking action on the human health criter ia 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 r eview and action within the coming months.

4.4 EPA’s Decision to Approve Maine’s Aquatic Life Crit eria for Acrolein, Diazanon and Nonylphenol for waters throughout the State of Main e, including in Indian Lands45

EPA’s review of Maine’s new aquatic life criteria f or acrolein, diazanon and nonylphenol, submitted to EPA on January 14, 2013, is based on w hether the criteria protect aquatic life uses, including consideration of EPA’s National Recommend ed Water Quality Criteria published pursuant to Section 304(a) of the CWA. EPA finds t hat the revised criteria are scientifically defensible and are protective of designated uses fo r the reasons explained in the EPA criteria

documents 60 for acrolein, diazanon and nonylphenol.

4.5 EPA’s Decision to Approve Maine’s Aquatic Life Crit eria Tables I and II in DEP Rule Chapter 584, except for Ammonia, Approve Aquatic Li fe Criteria in 38 M.R.S. § 420(1- B.A.(1)), (1-B.C), (1-B.D), and (1-B.E), and Approv e Biological Criteria in DEP Rule Chapter 579 for Waters in Indian lands

EPA’s review of the aquatic life criteria, other th an ammonia, in DEP Regulation Chapter 584 Tables I and II, submitted to EPA on January 11, 20 06, 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 i n 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 prot ective of designated uses for the reasons explained in the EPA criteria documents 62 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 cr iteria 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 a quatic 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 Criteri a for Toxic Pollutants and Implementation Policies Regarding the Development o f Statewide Criteria and SiteSpecific Criteria, except for Specified Fish Consum ption Rates, in DEP Rule Chapter 584,

for Waters in Indian Lands

EPA’s review of Maine’s narrative water quality cri teria, as expressed in Chapter 584, §§ 1, 2, and 3.A(1), and submitted to EPA on January 11, 200 6, 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 pollutan ts in concentrations that cause waters to be

60 See http://water.epa.gov/scitech/swguidance/standards/c riteria/current/index.cfm#altable for National Recommended Water Quality Criteria and access to cr iteria 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 ap proval

– see section 4.9 below.

62 See http://water.epa.gov/scitech/swguidance/standards/c riteria/current/index.cfm#altable for National Recommended Water Quality Criteria and access to cr iteria documents for each pollutant.46

unsuitable for the designated uses of the water bod y, EPA finds that they are consistent with the requirements. EPA approved these provisions for wat ers outside Indian lands on July 7, 2006, and is now approving them for waters in Indian land s.

EPA’s review of Maine’s implementation policies reg arding 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 disapprov ing as discussed above) is based on whether the criteria developed from those policies would pr otect the applicable designated uses including a consideration of EPA's ambient water quality criter ia 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 healt h (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 i n 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 numer ic assumptions are consistent with currently published EPA guidance.

EPA is not taking action on the procedures describe d in Chapter 584 § 3 which describe how alternative statewide and site-specific criteria ar e 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 forstatewide, alternative statewide, or sitespecific criteria must be submitted to EPA for revi ew 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 Riv erine Impoundments, Requirements for Instream Design Flows, the Requirement to Hold a WQS Review Hearing Every Three

Years and Provisions that Allow for Pesticide Disch arges 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 w hether 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, E PA finds that the criteria are protective of aquati c life uses and approves them in Indian lands as well

.

EPA’s review of the revision to DO measurement requ irements for riverine impoundments in 38 M.R.S. §464(13), submitted to EPA on August 26, 200 3, is based on whether the criteria protect existing and designated uses for waters in Indian l ands. As explained in our February 9, 2004

63 Specifically, these provisions are: the requiremen t in Chapter 584 § 3(A.(2)) that “statewide criteri a must be initiated in accordance with the petition for rulem aking provisions of the State Administrative Proced ures 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 dis charge license proceeding pursuant to 38 M.R.S.A. S ections 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 i n Indian lands, EPA finds that the narrative standard that accompanies the measurement requireme nts (“ dissolved oxygen concentration in existing riverine impoundments must be sufficient t o support existing and designated uses of these waters") ensures that, notwithstanding the measurement rest rictions in this provision, the revision is consistent with the requirements of the Clean Wa ter Act.

EPA’s review of the revisions to DEP Rule Chapter 5 30 § 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 pr ovision protect existing and designated uses for waters in Indian lands. The instream design fl ows (1Q10 low flow for acute aquatic life criteria, 7Q10 for chronic aquatic life criteria, a nd 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 Handbook 64

. EPA approved this provision for waters outside Indian lands on April 17, 2006, and is now approvin g 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 b ased on whether the provision is consistent with federal WQS review requirements. This revision rev ersed a previous change to 38 M.R.S. § 464(3.B) 65 that specified hearings only every four years. Si nce 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 feder al 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 a ddition 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 water s in Indian lands and is consistent with the requirements of the Clean Water Act. Given the req uirements that the methods and materials used be protective of non-target species, EPA antic ipates that no degradation of water quality would occur due to the discharge of aquatic pestici des 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 Reclass ification of Long Creek; and on Certain Bacteria and Pesticide Provisions for Waters throug hout Maine, Including Waters in Indian

Lands

EPA understands that Maine will be conducting a com prehensive triennial review in the coming months and will be reviewing the ammonia criteria f or 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/h andbook/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 p ropose changing the requirement back to hearings ev ery 3 years.48

criteria for the protection of primary contact recr eation, in light of EPA’s recommendations 66 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 de signated 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, Appe ndix A, and the numeric bacteria criteria for the protection of primary contact recreation for Cl ass B and C waters in 38 M.R.S. §465(3.B) and (4.B), and the extension of the applicability o f 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 through out the State, including waters in Indian lands, on the revisions to 38 M.R.S. §465(3.B) and (4.B) a nd 38 M.R.S. § 465-A(1.B), which extended the applicability of the bacteria criteria for Clas s B, C, and GPA waters to include bacteria of domestic animal origin. EPA would be happy to prov ide assistance to DEP as it develops the

new criteria.

In addition, EPA is not taking action on the reclas sification of a section of Long Creek (which is a water outside of Indian lands) from Class B to Cl ass C. This downgrade in classification was adopted to achieve consistency in the Creek where t he upstream and downstream reaches were already Class C waters. EPA agrees with DEP that i t 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 ar e not water quality criteria requiring review and approval by EPA (as discussed in the section th at follows) and two are WQS that we have approved herein (as discussed in the preceding sect ion). However, EPA finds that some of these revisions are WQS which EPA has not yet acted on fo r waters anywhere in Maine. The revisions related to pesticides that are WQS that we are cont inuing 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, sub mitted 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) an d (b)), would allow, in GPA waters and tributaries to GPA waters, the impairment of charac teristics and designated uses and increase in trophic state due to discharges of aquatic pestici des or chemical discharges for the purpose of restoring biological communities affected by an inv asive species or that are the unintended or incidental result of the spraying of pesticides. T he revision made at 38 M.R.S. § 465((3.C.(1)) would allow, in Class B waters, impairment of the r esident indigenous biological community due to discharges of aquatic pesticides or chemical dis charges for the purpose of restoring biological

66 See December 2, 2013 letter from EPA Region 1 Offi ce of Ecosystem Protection Director, Ken Moraff to DEP Bureau of Land and Water Quality Director, Michael Kuhns.49

communities affected by an invasive species. Simil arly, 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 f or 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 d uring the upcoming months to ensure that they are protective of designated uses. For this r eason EPA is not taking action on these

revisions at this time.

4.9 EPA’s Determination That Various Provisions Submitt ed to EPA from 2004 through 2014 Are Not Water Quality Standards and Therefore EPA i s Taking No Action on These

Provisions

EPA has reviewed the following provisions and deter mined 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-specifi c bioaccumulation factors, submitted to EPA on May 14, 2004;

• Procedures in DEP Rule Chapter 584 that describe ho w 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 th eir 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)); § 46 5(1.C.(4)) and (2.C.(4)); § 465- A(1.C.(4)); and § 465-B(1.C.(2)), enacted as Chapte r 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 Diseas es 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 tha t were included in LD 515, submitted to EPA on January 14, 2013; and

67 Specifically, these provisions are: the requiremen t in Chapter 584 § 3(A.(2)) that “statewide criteri a must be initiated in accordance with the petition for rulem aking provisions of the State Administrative Proced ures 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 dis charge license proceeding pursuant to 38 M.R.S.A. S ections 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)); § 46 5(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 a nd 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 di sapproval pursuant to Section 303(c)(2) of the Clean Water Act and 40 C.F.R. part 131. EPA ha s in the past considered certain discharge prohibition exceptions, discharge licensing require ments, and alternative criteria adoption procedures in Maine to be WQS revisions and acted o n them accordingly. 68 However, since the Region last considered such a revision in Maine, EP A 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 li ght 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, crite ria or antidegradation requirements. Rather, most of the provisions allow the DEP to issue disch arge 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 m ore accurately characterized as permit implementation provisions rather than water quality standards. The remaining provisions are purely procedural in nature, updating federal statu tory and regulatory references, and establishing processes for adopting alternative cri teria 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 som e 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). Howe ver, under CWA §303(c), EPA only has authority to approve or disapprove new or revised s tate 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 proh ibition exemptions in Maine as WQS was EPA’s August 19, 2008 approval of discharge prohibition exemptions r elated to the discharge of aquatic pesticides for t he control of mosquito-borne diseases in the interest of public h ealth and safety using methods and materials that p rovide for the protection of non-target species.

69 EPA, What is a New or Revised Water Quality Standard Und er 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, 201 4 (both listed above), it is important to note that federal antidegradation regulations and M aine’s WQS require that water quality in Outstanding National Resource Waters (ONRWs) be “ma intained 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 w hich 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 reques t to apply pesticides to Class AA or other ONRWs, DEP must ensure that such application will r esult in no more than temporary and short term changes in water quality, as well as comply wi th all other CWA applicable WQS requirements.

4.10 List of Submissions from 2003 through 2014

DEP submissions from 2003-2014 to which EPA is resp onding in today’s decision are:

• August 26, 2003 submission which included enacted l egislative chapters from the 2002- 2003 legislative session;

• May 14, 2004 submission which included statutory am endments and rulemakings from 2000 to 2004 that had not been previously submitted to EPA ;

• January 11, 2006 submission which included statutor y amendments and rulemakings from 2004 and 2005;

• April 8, 2008 submission which included statutory a mendments from the 2007 legislative session;

• December 7, 2009 submission which included statutor y amendments from the 2009 legislative session;

• May 16, 2013 submission which included statutory am endments from the 2011-2012 legislative session and 2012 rulemaking; and

• February 27, 2014 submission which included statuto ry amendments from the 2013 legislative session.

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