COMMENTS OF MAINE ATTORNEY GENERAL JANET T MILLS ON EPAS

REVIEW OF MAINE WATER QUALITY STANDARD REVISIONS AS THEY APPLY

IN INDIAN TERRITORIES

SEPTEMBER 13 2013

The State of Maine by and through its Office of Attorney General hereby submits the

following comments in response to EPAs Public Notice ofEPAs Review of Maine Water

Quality Standard Revisions as They Apply in Indian Territories EPA seeks comments on the

States authority under the Maine Implementing Act 30 MRSA §§ 6401 et seq MIA and

Maine Indian Land Claims Settlement Act 25 USC §§ 1721 et seq MICSA to set water

quality standards WQS in Indian territories and on whether these particular WQS revisions

adequately protect water quality in Indian territories Pursuant to the operative statutes Maine

has the authority and responsibility to establish WQS for all of the waters of the State including

any waters within or near Indian territories and the statutes do not permit EPA or any of the

Maine Tribes to set WQS in the States stead as is more fully explained below

EPAs Current Review is Unlawful and Unnecessary

At the outset we object to EPAs review process which is unlawful EPAs authority

over state water quality standards is set forth at 33 USC § 1313c3 which authorizes EPA to

specify any changes to the proposed standards the agency believes are necessary under the Clean

Water Act CWA within 90 days of their submission The standards in question here were

submitted to EPA in January of 2013 and 90 days has long since passed Therefore EPA has no

authority to require any changes to these standards in connection with their federal approval

Additionally there is no legitimate reason for EPA to establish a separate federal notice

and comment process concerning these proposed standards In its notice EPA says it is soliciting

comment in case some members of the public were not aware that the State intended to apply

EPA004746
these standards to Indian waters As the state rulemaking record makes clear and as EPA knows

well given its own participation in that process one of the central issues commenters addressed

was whether the standards were sufficiently protective of Indian subsistence fishers These

commenters included the Penobscot Nation and EPA both of which submitted extensive

comments as well as the Houlton Band of Maliseet Indians The record shows that Maines

Native American community was well aware of the rulemaking and actively participated in it

This being the case it is a mystery which members of the public EPA believes may have

missed their chance to comment at the state level because they were unaware these standards

would apply to Indian territories Once again EPA is acting as a roving commission

presumably in order to justify an outcome where EPA has some newfound WQS jurisdiction

See Michigan v EPA 268 F3d 1075 108486 DC Cir 2001 Courts have been highly critical

of EPA for similarmaneuvering on state tribal issues Id criticizing and rejecting EPA effort to

create jurisdictional controversy in order to justify imposition of a federal Clean Air Act

program in disputed territory

We also note that EPA has made no finding that Maine has inadequate authority to adopt

and enforce its WQS within or adjacent to Indian territories EPA cannot assert federal authority

when it merely professes uncertainty regarding a states jurisdiction over tribal territory it must

first make a formal finding that a state lacks jurisdiction Michigan 268 F3d 1075 108486 As

the agency is surely aware such a finding is precluded not only by the express terms of the MIA

and MICSA but also by the First Circuit Court of Appeals ruling in Maine v Johnson 498 F3d

37 1st Cir 2007

Pursuant to the MIA Maines environmental regulatory authority applies uniformly

throughout the State including to Indian lands and waters 30 MRSA § 6204 When EPA

2

EPA004747
denied Maine delegation of the National Pollution Discharge Elimination System NPDES

program as to three tribal facilities on the grounds that the State lacked jurisdiction the First

Circuit vacated the decision finding that the MIA is about as clear as is possible in conferring

jurisdiction on the State over Indian lands and waters Johnson 498 F3d at 43 EPAs

reluctance to acknowledge the States authority to adopt and enforce its WQS in Indian Territory

today is reminiscent of the agencys now discredited decision making on the States NPDES

application but is inexplicable in light of the Johnson decision which provides clarity on the

jurisdictional issue

EPAs Historical Treatment of Maines Proposed WQS

For years both before and after the 1980 passage of MIA and MICSA Maine adopted

and revised its WQS submitted them to EPA for federal approval and EPA acted on them all

without any mention of an issue regarding jurisdiction over Indian territoriesi For example in

1986 Maine substantially revised and strengthened its WQS to protect its water resources and

Four years after the passage of the Settlement Acts EPA issued its 1984 Policy for the

Administration of Environmental Programs on Indian Reservations 1984 Policy available at

hupwwwepagovitribalipdfindianpolicy84pdf That document specifically acknowledged

that a state could have an express grant ofjurisdiction from Congress sufficient to support

delegation to State Government 1984 Policy at 2 This language is a clear reference to settlement

acts such as MICSA Not surprisingly Maine commented on a draft of that document to make that

connection explaining that a settlement act conferred state authority over the Penobscot Nation

and the Passamaquoddy Tribe and thus ruled out the possibility of delegating any programs to

the tribes The Origins ofEPAs Indian Program 15 Kansas Journal of Law Public Policy

191 at 294 fn 497 Winter 2006 EPA apparently accepted that at the time just as it should

have But while Mlle 1984 Policy remains the cornerstone for EPAs Indian program EPA is

now acting at variance with it in Maine since the agency continues to resist that Congress has

expressly granted jurisdiction over Indian territories to the State EPA Policy on Consultation

and Coordination with Indian Tribes May 4 2011 at 4 available at

httpwwwepagovtribalpdficonsandcoordwithindiantribespolicypdf

3

EPA004748
designated uses Me Pub L 1985 c 698 § 15 now as amended 38 MRSA §§ 464 et seq

These standards provided various classifications for different levels of protection and

specifically applied to every surface water in Maine including waters in or near Indian

territories such as the Penobscot River Id at § 4647 None of the standards or designated

uses mentioned or provided any special protection to tribal interests or sustenance fishing Id

EPA raised various unrelated concerns regarding these standards and their application to various

waters including those in or near Indian territories without any mention that applying these

standards to Indian territories required special EPA approval or triggered some different level of

scrutiny2 In a letter dated April 24 1987 EPA specifically discussed standards for the

Penobscot River and its West Branch with no mention of tribal issues3 Repeatedly and

consistently EPA approved Maines proposed standards even though the standards expressly

applied to areas the Tribes claim to be within their territories4

2

Letters dated July 16 and August 20 1986 from EPA Regional Administrator to DEP

Commissioner Exhibit Ex 3

3

Letter dated April 24 1987 from EPA Regional Counsel to Counsel to the Governor of Maine

Ex 4

4

Letters dated June 28 1999 from EPA Director Office of Ecosystem Protection to Acting

DEP Director Land and Water Quality Ex 11 March 25 1993 from Acting EPA Regional

Administrator to DEP Commissioner Ex 9 April 12 1993 from EPA Chief Water Quality

Branch to DEP Commissioner Ex 10 December 20 1990 from EPA Regional Administrator

to DEP Commissioner Ex 8 May 11 1989 from EPA Assistant General Counsel to Maine

Deputy Attorney General Ex 7 November 3 1988 from EPA Director Waste Management

Division to DEP Director Bureau of Water Quality Control Ex 6 May 21 and August 31

1987 from EPA Regional Administrator to DEP CommissionerEx 5 Moreover EPAs earlier

communications regarding Maines WQS also did not mention any issue regarding tribal lands

waters or fishing rights Letters dated November 12 1985 from EPA Deputy Regional

Administrator to DEP Commissioner Ex 2 February 20 1985 EPA Regional Administrator

to DEP CommissionerEx 1

4

EPA004749
At about the time Maine filed its application for NPDES delegation EPA for the first

time included language in its WQS approval letters indicating that the new and revised standards

were approved except as to Indian territory5 Maine has now repeatedly and in writing asked

EPA to explain the legal basis for its refusal to approve its WQS as to Indian territory asked

which water bodies the agency considers to be within Indian territory and asked what standards

apply there if in fact Maines do not EPA has refused to answer these questions directly The

agencys handling of this issue has done nothing to help Maine citizens including tribal

members but has created confusion where none should exist in the wake of the Johnson

decision

It should be noted here that EPAs official position today that Maines WQS do not

apply within Indian territory because EPA never expressly approved them as applicable there

apparently has only theoretical meaning to the agency EPA has reviewed dozens of draft

permits for discharges on the Main Stem of the Penobscot River including for a facility on the

Penobscot Reservation at Indian Island but has never once taken the position that Maines

generally applicable WQS did not in fact govern these applications Of course EPA could never

take that position because if it did it would have to point to some alternative set of standards that

apply instead of Maines and would have to explain the legal basis for all of this which is not

possible So while EPA on the one hand maintains that it has never approved Maines WQS as

to Indian territory on the other hand it continues to apply Maines standards to each and every

CWA proceeding in the State

5

Letters dated February 9 2004 from Linda M Murphy Director Office of Ecosystem

Protection to DEP Commissioner April 14 2004 from Linda M Murphy Director Office of

Ecosystem Protection to DEP Commissioner and January 25 2006 from Linda M Murphy

Director Office of Ecosystem Protection to DEP CommissionerEx 12

5

EPA004750
Similarly whenever EPA itself issues a NPDES pelmit the CWA requires a certification

from the state pursuant to section 401 33 USC § 1341 that the discharge complies with the state

water quality standards and state law requirements PUD No I ofJefferson Co v Washington

Dept ofEcology 511 US 700 704 1994 Maine has been issuing section 401 certification

throughout the state including in areas in or near claimed tribal waters without any hint from EPA

that jurisdiction to do so is lacking

Maines Authority under the MIA and MICSA to Establish WQS in Indian Territories

The Federal Water Pollution Control Act Amendments of 1972 instituted a

comprehensive program for controlling and abating water pollution Train v City ofNew York

420 US 35 37 1975 In establishing this regulatory framework Congress was careful to

recognize preserve and protect the primary responsibilities and rights of States to prevent

reduce and eliminate pollution CWA § 101b 33 USC § 1251b

It is now well established that Maine has primary jurisdiction over the waters in the State

including any waters in or near Indian territory The 1980 Settlement provided that with very

limited exceptions the Tribe would be subject to Maine law Johnson 498 F3d at 42

One of the cornerstones of the MIA establishes

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

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

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

entity shall be subject to the laws of the State and to the civil and criminal

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

lands or other natural resources therein

30 MRS § 6204 The then Interior Secretarys stated to Congress that the Settlement Acts

were intended to effectuate the broad assumption ofjurisdiction over Indian land by the State of

Maine HR Rep 961353 at 28 reprinted in 1980 USCCAN 3786 38033804 report of

6

EPA004751
the Department of the Interior Johnson 498 F3d at 45 n10 This jurisdictional principle was

confirmed and approved in MICSA 25 USC § 1725

At the time the Settlement Acts were adopted the Interior Department largely

responsible for relations with Indian tribes told Congress that the southern tribes

lands would generally be subject to Maine law HR Rep 961353 at 28 report of the

Department of the Interior The Senate Report adopted by the House Report

declared that State law including but not limited to laws regulating land use or

management conservation and environmental protection are fully applicable as

provided in the proposed bill and Section 6204 of the Maine Implementing Act S

Rep 96957 at 27 HR Rep 961353 at 20

Johnson 1498 F3d at 4344 emphasis added Congress understood that under the new law

Maine would retain its environmental regulatory authority over the Tribes and their territories

The Senate Report stated that for example although the federal Clean Air Act 42

USC § 7474 accords special rights to Indian tribes and Indian lands such rights

will not apply in Maine because otherwise they would interfere with State air quality

laws which will be applicable to the lands held by or for the benefit of the Maine

Tribes This would also be true of police power laws on such matters as safety public

health environmental regulation or land use S Rep 96957 at 31

Id at 44 n7

In the face of this EPA has previously asserted in dicta that it has a trust responsibility

to take over promulgation of WQS insofar as they affect tribal waters 68 Fed Reg 65052

6506768 November 18 2003 Maine strongly disagrees First reservation lands in Maine

are not held in trust by the federal government SRepNo 96157 96th Cong 2d Sess Senate

Report 151980 HRRep No 961353 96th Cong 2d Sess 1516 reprinted in 1980

USCCAN House Report at 3791 Bangor Hydroelectric Co Milford 83 FERC P61037

6108586 19986

6

The federal Department of Interior DOT has previously stated that fee title to the islands in

the Penobscot River was held by Maine in trust for the benefit of the Penobscot Indian Nation

Bangor Hydroelectric Co Milford 83 FERC at 61086 See also Mattaceunk Hydroelectric

Project P2520072 Scoping Document 2 at § 221 2013 available at

7

EPA004752
Second to the extent that EPA could ever lawfully invoke a federal trust responsibility

towards Indian territory in a manner that affects state jurisdiction under the CWA such trust

responsibility would not apply in Maine Title 25 USC § 1725h of the federal Settlement Act

makes clear that federal Indian law that would otherwise affect or preempt the jurisdiction of

Maine relating to environmental matters has no effect in Maine Id § 1735b

Likewise in 1987 Congress amended the CWA by inter alia adding section 518 which

sets forth tribal rights and responsibilities Section 518 allows Indian tribes to apply for

treatment as state status 33 USC § 1377e Generally outside of Maine a tribe may be

granted jurisdiction to regulate water resources within its borders in the same manner as states

This includes the authority to establish tribal water quality standards subject to EPA approval

and the authority to issue NPDES permits for discharges into such waters City ofAlbuquerque

V Browner 97 F3d 415 91h Cir 1996 Because it would affect Maines regulatoryjurisdiction

and it was not made explicitly applicable to Maine Section 518 does not apply in Maine 25

USC § 1735b Indeed Congress considered this very issue

This section does not override the provisions of the Maine Indian

Claims Settlement Act 25 USC § 1725 Consistent with

subsection h of the Settlement Act the tribes addressed by the

Settlement Act are not eligible to be treated as States for

regulatory purposes

Water Quality Act of 1987 Section bySection Analysis reprinted at 2 1987 USCCAN 1987

CWA Analysis at 5 43 emphasis added EPA itself addressed the issue in a 1993 guidance

document

httpelibraryferegov Beginning with the 1984 relicensing of the West Enfield Project the

Commission has consistently concluded that the United States does not have a proprietary

interest in the aboriginal lands ie the river islands of the Penobscot Nation and so these

lands are not a reservation within the meaning ofthe Federal Power Act

8

EPA004753
The provisions of the 1980 Federal Settlement Act seem to

invalidate federal laws that might give the Penobscots special status

if it would affect or preempt the States authority including the

States jurisdiction over environmental and land use matters

Amu post1980 special federal legislative provisions that might

give Indians special jurisdictional authority could not provide the

Penobscots with such jurisdictional authority unless the federal

legislation specifically addressed Maine and made the legislation

applicable within Maine

US EPA Memorandum Penobscots Treatment as a State Under CWA § 518e at 8 July 20

1993 1993 EPA Memorandum emphasis added Ex 13

Additionally EPA has no trust responsibility toward Indian tribes except to the extent

that Congress has created it by statute The First Circuit has explained that the federal trust

responsibility toward the Maine Tribes is fully and exclusively expressed through the substance of

the statutes and regulations that an agency is charged with administering Nulankeyunnonen

Nkihtiaqinikon V Impsan 503 F3d 13 31 1st Cir2007 To the extent that EPA attempts to

breathe into this trust responsibility concept substantive or procedural requirements that are not

embodied in statute the agency is acting unlawfully This conclusion is particularly compelling in

the context of the CWA because there is no written set of standards narrative numerical or

otherwise that anyone may review to assess whether a particular action complies with this trust

responsibility For the agency to give this concept independent substantive or procedural

meaning therefore is for the agency to grant itself license to handle any tribal issue in whatever

way it sees fit and declare the result to be compelled by a trust responsibility That is the height

of arbitrary and capricious decision making Michigan 268 F3d at 1085 rejecting EPA argument

that its interpretation ofthe Clean AirAct is correct simply because it favors Indian interests

The notion that EPA has some freefloating undefined all encompassing trust responsibility that is

9

EPA004754
understood only by the agency simply cannot stand because it would effectively overwrite and

render meaningless express provisions of the MIA and MICSA

In sum it is plainly obvious to all who wish to see that any waters arguably within Indian

territories are to be treated like all other waters within Maine the State has clear authority to issue

WQS for these waters and EPA has no trust responsibility that authorizes the agency to apply

heightened scrutiny to Maines WQS before approving them as to Indian Territory

The Substantive Adequacy of Maines WQS revisions

The CWA has deep roots in Maine as Senator Edmund Muskie was the laws chief

architect Conistent with this legacy Maine takes seriously its responsibility and

commitment to protect water quality on behalf of all citizens throughout Maine including

sensitive subpopulations that engage in sustenance fishing For reasons expressed in DEPs

submission to EPA in support of the revised standards which we incorporate by reference

the proposed standards establish human health criteria based on technically sound and

objective data and analysis regarding cancer risk fish consumption rates and

bioconcentration EPA itself has relied on some of the same studies and the same analytical

approach in other contexts and the human health criteria are grounded in the empirical local

population specific data that EPA prefers The rulemaking record shows that the DEP took

into account all the evidence and argument that was presented including by the Maine Tribes

and EIA itself and provided a reasoned decision supported by that record On the merits

there is no basis for EPA to disapprove require revisions to or otherwise secondguess the

outcome of DEPs rulemaking here

10

EPA004755
Dated September 13 2013

JANET T MILLS

ATTORNEY GENERAL

aul Stern

Deputy Attorney General

Chief Litigation Division

Gerald D Reid

Assistant Attorney General

Chief Natural Resources Division

6 State House Station

Augusta ME 043330006

2076268800

EPA004756
Exhibit 1

sz44

An

Za

+4t mos

February 20 1985

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS D2203

Henry E Warren Commissioner

Department of Environmental Protection

State House Station 17

Augusta ME 04333

Deer ComMissioner Warren

have reviewed the water quality standards materials submitted

by the Maine Department of Environmental Protection in accordance

with Section 303c of the Clean Water Act This package outlines

the water quality sampling and public participation procedures and

results that were the basis for the classification review After

extensive review the Board of Environmental Protection decided

that no classification changes be proposed to the Maine Legislature

at this time

Pursuant to Section 303c of the Clean Water Act Amendments of

1981 PLp7117 I approve the Maine lqater Quality Standards

The Environmental Protection Agency in its review of your standards

package both in the Regional Office and at Headquarters has noted

areas that should be addressed in the major revisions planned for

1985

Modification in these areas will strengthen your water quality man

agement programs and bring your Water Quality Standards into full

conformance with federal regulations I have attached detailed

staff comments for your consideration

I and my staff stand ready to assist you in the development of your

water quality standards revision to be submitted to the Maine

Legislature this year I look forward to continued cooperation

with you and your staff to achieve the water quality objectives

expressed in the Maine Water Quality Standards

Sincerely yours

Michael R Deland

Regional Administrator

cc Jennie Bridge NEIPCC

Patrick Tobin Dir Criteria Standards Div WH585

Frank Ciavattieri WMF2111

Attachment

EPA004757
Comments on Maine Water Quality Standards

Attached to February 20 1985 letter from

Michael R Deland to Henry E Warren

1 The antidegradation section 3b should be modified to be

consistent with EPA regulation 40 CFR 13112 November 8

1983 The following areas need attention

a Your policy protects designated uses In addition any

existing uses must also be protected

b It is unclear as to whys water that has water quality

greater than specified for its class will have that water

quality protected only if the designated uses of thenext

highest classification can be attained High water quality

must be maintained in any event There are degrees of

water quality within a classification Those higher levels

water quality should be protected even if they are by some

measures insufficient to meet the next highest classification

c The intergovernmental and public participation processes

should be spelled out This is critical in order to deter

nine when the economic or social purposes which provide

significant public benefits for the People of the State of

Maine are justified by allowing lowered water quality

d Maine must explain how cost effective and reasonable best

management practices for nonpoint source control will be

assured where lower water quality is allowed

2 In section 3d Discharge prohibited after the word new

or increased should be added

3 B1 B2 and other classifications that have been eliminated

should have their references deleted in the associated regu

lations

4 We suggest that instead of allowing a blanket waiver to the

bacterial criteria between October 1 and May 14 each year that

permittees be required to apply for a waiver The permittees

should explain why suspension of disinfection will not adversely

affect water quality and uses

5 As discussed with you the words of human origin in the bac

terial section should be deleted It can be replaced with a

phrase at the end of the sentence unless determined to be of

non human origin by sanitary survey

EPA004758
2

6 The toxicity statement in paragraph 3 on page 4 should be

expanded preferably in accompanying regulations to explain

how determinations of aquatic protection will be documented

or predicted Further the connectionbetween the toxicity

policy in the Standards and the issuance of discharge per

mits should be clearly outlined This will include infor

mation on biomonitoring effluent toxicity testing choice

of river flow duration and recurrence intervals for acute and

chronic protection etc

7 Consideration should be given to having a Class C cold water

fishery designation with a dissolved oxygen of 60 instead

of 50 mgL This is supported in a paper The Dissolved

Oxygen Requirements of Fish prepared by the Maine DEP in

April 1984

8 There is an apparent inconsistency in the SB criteria and

uses designated for this class namely shellfishing A desig

nation of SB implies that shellfishing and its stringent micro

biological requirements are protected However during the

period between October 1 and May 14 each year conform criteria

are waived meaning that water qualitywhich protectsAshellfish

harvesting may not be maintained Shellfishing nevertheless

continues during this period This discrepancy should be

eliminated

9 The chromium criterion in the regulations should be recon

sidered It is different from the EPA White Book value

which both EPA and DEP have been using most recently in the

Saco River and Goosefare Brook

10 The variance language in Chapter 590 should be expanded to

include social and economic factors intergovernmental

cooperation and public participation

11 A mixing zone policy considering the factors inthe EPA Water

Quality Standards Handbook Chapter 2 should be developed

EPA004759
ell

2747 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

November 12 1985

Henry E Warren Commissioner

Department of Enviromnental Protection

State House Station 17

Augusta ME 0433

Dear Commis bner Warren

Exhibit 2

Members 6f our staffs met in your offices on October 9 1985 to

discuss the legislative document amending the water classification

system prepared for the 1986 session of the Maine Legislature This

meeting was set up to discuss points originally raised by the Envi

ronmental Protection Agency EPA in response to earlier drafts of

Legislative Document No 1503

Three major issues were deliberated 1 antidegradation policy 2 bacterial criteria for SB water for shellfish harvesting and 3

the absolute prohibition of discharges new and existing to streams

with less than ten square miles of drainage area EPAs position and

my understanding of future actions are detailed below

1 Antidegradation Maines current proposal is contrary to EPA

policy in that

a existing uses are not specifically protected EPAs anti

degradation policy mandates that existing uses be preserved in

all cases Maine protects characteristics and designated uses

without specifically providing maintenance of actual existing

uses In order to be consistent with federal regulations your

proposal must provide for the protection of existing uses and

b water quality currently exceeding that necessary for the

propagation of fish shellfish and wildlife need not be main

tained Maines proposal protects only the minimum require

ments of a class unless the quality exceeds that specified for

the next highest class EPAs policy protects all incremental

improvements in water quality Subject to the standard waiver

provisions For example a class C waterway with a dissolved

oxygen criterion of 5 mgL and an existing DO of 65 mgL is

not protected at this higher level by Maines policy This is

because the 65 mgL is less than the criterion of 7 mgL in

the next highest class B Similarly a class B water with a

higher than minimum DO may never be guaranteed preservation

since the next highest class A has an identical DO criterion

of 7 mgL

EPA004760
2

Based on the discussions held by our staffs including EPA head

quarters we understand that the Department of Environmental Pro

tection DEP and the Office of Legislative Assistants will revise

the Maine antidegradation policy to bring it into conformance with

approved water quality standards in other states One important

aspect in implementing the antidegradation policy is the procedure

by whichthe benefits and costs of maintaining high quality water are

evaluated and tradeoffs made regarding important economic or social

development This procedure must involve intergovernmental coordi

nation at the State level as well as public participation These

procedures currently not elucidated by Maine need not be incorpo

rated into the statute but can be developed and spelled out in the

Continuing Planning Process

2 Bacterial criteria Maine dropped bacterial criteria from the

SB classification waters protected for the propagation and harvesting

of shellfish EPA defines a water quality standard as listing of des

ignated uses and criteria to protect those uses EPA has bacterial

criteria in the Red Book that are protective of shellfish waters

These criteria or other state supported criteria should be specified

for those water bodies that contain a designated or existing use for

shellfish harvesting

I understand that DEP is considering bacterial criteria for SB waters

and will continue discussing the matter with EPA and the Maine Divi

sion of Marine Fisheries

3 Discharge prohibition Lines 1 through 5 page 3 of LD 1503

state that there shall be no discharge to waters with less than 10

square miles drainage area This language would require the removal

of all current discharges to such waters ranging from large industrial

dischargers to single homes As discussed during the meeting this may not be realistic Your staff is reconsidering this point and will

make a recommendation soon

In closing I commend you your staff and the Office of Legislative

Assistants for the tremendous effort put into clarifying and strength

ening Maines water quality standards particularly with regard to

great ponds I share your desire for early legislative action on the

proposal Please let me know if we can assist in any way with the

revising and updating of your standards and classifications

Sincerely yours

ccLukPto

Paul Keough

Deputy Regional Administrator

cc David Elliott Office of Legislative Assistants

David K Sabock Criteria and Standards WH585

Jennie Bridge NEIWPCC

EPA004761
tra

July 16 1986

UNITED STATES ENVIRONMENTAL PROTE71

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSAGt

Kenneth C Young Commissioner

Department of Environmental Protection

State House station 17

Augusta Maine 04333

Exhibit 3

Dear Commissioner Young

We havereviewed the revisions to the Maine water quality standards stat

Alte contained in An Act to Amend the Classification System for Maine

Waters and Change the Classification System of Certain Waters Maine

Public Laws 112th Legislature Chapter 698 the Reclassification Act

We would like to applaud your efforts as well as those of your staff and

the legislature on this important bill which in many ways strengthens the

protection afforded to Maines waterways

We formally approve major portions of the statute but there are several

sections of the bill listed below which do not appear to be in conformance

with federal requirements The state must specify within 30 days how it

intends to meet the concerns listed below or the Environmental Protection

Agency EPA will disapprove those sections

1 Section 4644F Antidegradation

Maines Antidegradation PoliCy as set forth in Section 4644F of the

Reclassification 4 Act must be consistent with 40 CFR S13112 a1

Forty CFR S13112a1 provides that existing instream uses

and the level of water quality necessary to protect the existing uses

shall be maintained and protected Forty CFR S13112 a2 goes a

step further and provides that if the level of the water quality exceeds

that which is necessary to protect the section 101a2 fishableswim

mable goals of the Clean Water Act then the water quality cannot be

lowered below the level necessary to support the existing use ie

fishableswimmable or higher and in addition can only be lowered to

that level if the state finds after intergovernmental coordination and

public participation that such action is necessary for important economic

or social development

Section 4644F5 appears to be more stringent than 40 CFR S13112 a2 Inone respect since it provides that the existing quality of any

water body not just fishableswimmiable waters can be lowered only

after the board makes a finding following opportunity for public

participation that the action is necessary to achieve important economic

or social benefits Section 4644F5 however does not provide

EPA004762
2

that in allowing lower water quality in such circumstances the state must

assure water quality to fully protect existing uses Section 4644F1

does affirmatively state that the existing uses must beprotected How

ever this is a general provision and Section 4644F5 can be inter

preted as an exception to the general rule in section 4644F1

Section 4644F5 therefore needs to be clarified We recommend that

this be accomplished either in the rules promulgated pursuant to Section

4645 or by statutory amendment

Section 4644F5 is missing a requirement for intergovernmental

coordination In addition the provision does not provide that Maine

will assure that there shall be achieved the highest statutory and

regulatory requirements for all new and existing point sources and all

cost effective and reasonable best management practices for non point

source control See 40 CFR S13112a2 The state should adopt

this language into a statutory revision or during the rulemaking pursuant

to section 4645

2 Section 4644F1 Definition of Existing Use

In accordance with 40 CFR S13112a1 Section 4644F1 of the

Reclassification Act provides that existing uses must be maintained and

protected This section however defines existing instream uses as

significant well established uses that have actually occurred on a

waterbody on or after November 28 1975 emphasis added This language

Is narrower and therefore less stringent than the federal definition in

40 CFR S1313e which defines existing uses as uses actually

attained in the waterbody on or after November 28 1975 Whether or not

they are included in the water quality standards The EPA policy on

antidegradation provides that existing uses can be established not

only by demonstrating that the uses have occurred but also by showing that

the water quality is suitable to allow such uses to occur unless

there are physical problems which prevent the use regardless of water

luality emphasis added Under Maines definition however the use

is existing if it is well established and if it has actually occurred

The addition of this language appears to preclude the state from finding

A use exists because the water quality of the reach in uitable to alInv

such a use to occur

Therefore EPA requests that the Maine Department of Environmental Pro

tection DEP clarify how it specifically intends to implement the anti

legradation policy outlined in the legislation In particular EPA

requests DEPs interpretation of the definition of existing uses contained

in the legislation and the methods by which DEp will establish existing

uses

1 See Questions and Answers on AntidTr15617AliFTsrfT1985

Office of Water Regulations and Standards

EPA004763
3

Sections 46524 Protection of Salmonid Spawning

The standards provide for narrative salmonid spawning protection for

Class B and Class C waters Criteria protection for salmonid spawning

with regard to dissolved oxygen is afforded only to Class B waters

Maine should afford at least as high a degree of salmonid spawning pro

tection to Class A waters as Class B waters In addition rulemaking

specified in Section 4654B should identify salmonid spawning areas

In Class C waters and the level of water quality sufficient to support

spawning egg incubation and the survival of early life stages

4 Sections 4671A2 and 4677A3 Androscoggin and Penobscot

River Impoundments

These sections do not provide for the full protection of Class C standards

and criteria within the stated impoundments only the reasonable attain

ment of class c uses while allowing the violation of Class C criteria at

certain times By allowing the reasonable attainment of the uses these

two provisions are inconsistent with federal regulations The language

In 40 CFR S1316c as well as the federal regulation as a whole

make it clear that these uses must be fully protected not reasonably

protected

Furthermore in Section 464 of the Reclassification Act the legislature

stated that its intention was that This classification system shall be

based on water quality standards which designate the uses and related

characteristics of those uses for each class of water and which also

establish water quality criteria necessary to protect those uses and

related characteristics Thus the classificatiOn system for the impound

ments in question does not follow the intent of the legislature or the

structure which has been established to protect all other waterbodies in

the state since it does not require criteria which fully protect the

instream uses

rhe statement by the legislature in these sections that criteria viola

tions may occasionally occur and that Class C uses may be reasonably

attained does not constitute a revision of the classification for these

segments If the intent of the legislature was to remove designated uses

which are not existing uses or to adopt subcategories of uses pursuant

to 40 CFR S131100 the State must first conduct a use attainability

analysis UAA in accordance with 40 CFR S13110j2 A UAA is

Jefined in 40 CFR S1313g as a structured scientific assessment of

the factors affecting the physical chemical biological and economic

actors described in 40 CFR S13110g The study should focus on

the current condition of the impoundments in question and the factors

relating to their attainment or nonattainment of Class C standards The

study should also outline what the attainable uses of the impoundments

are specify how those attainable uses will be achieved and select

sriteria protective of the those uses

EPA004764
If the UAA concludes that the impoundments will not fully attain Class C

uses and criteria due to one or more of the factors listed in 40 CFR

S13110g the state may then reclassify in accordance with the provi

sions of 40 CFR S13110 the designated Class C uses or create sub

categories of Class C uses for these reaches and specify criteria pro

tective of these uses

4

EPA requests clarification of how Maine intends to bring this section of

the standards into full compliance with the federal requirements listed

above

Forty CFR 51312 states that water quality standards serve as the

regulatory basis for the establishment of water quality based treatment

controls and strategies beyond the technology based levels of treatment

required by sections 301b and 306 of the Act° since a standard of

reasonable attainment is vague and there is no way to determine what

level of water quality the state would equate with reasonable attain

nent it would be difficult if not impossible to establish waterquality

aased treatment controls

ince the impoundments have not been formally downgraded by the legis

ature Region I will continue to interpret the classification of the

eaches in question as Class C NPDES permits issued by EPA for these

egments will contain water quality based limitations sufficient to

upport Class C uses and criteria ie 5 mg1 minimum dissolved oxygen

oncentration fully until such time the standards for these streams are

owngraded in accordance with federal requirements1

iscellaneous comments on the Maine water quality standards are listed

elow

action 465C Groundwater Classification

lis section sets standards of classification for groundwater Ground

iter is not addressed in section 303 of the CWA Therefore EPA does

possess the authority to approve or disapprove this section

ironic Criteria For Dissolved Oxen

A has recently published June 24 1986 federal register dissolved

ygen criteria which include suggested average and minimum criteria

ther than just the minimum values used in Maines current standards

me should examine this document when updating its standards again

EPA004765
5

ydroelectric Projects Act

EPA has recently received a second piece of legislation An Act to

Clarify the Application of Water Quality Standards to Hydroelectric

Projects Maine Public Laws 112th Legislature Chapter 772 Since this

legislation dictates how water quality standards are to be applied EPA

approval of this Act under 40 CFR Part 131 is also required Initial

review of the Act has revealed that it is inconsistent with federal

requirements EPA needs additional time to review this legislation and

will contact the state as soon as it completes its evaluation

I look forward to working with you in the resolution of the aforemen

tioned issues If you have any questions please feel free to contact

Don Porteous 6172235043 or Larry Brill 6172235600 of the Water

Management Division for assistance

Sincerely

Michael R DEland

Regional Administrator

cc Jennie Bridge NEIPCC

David K Sabock Criteria and Standards Division WH585

EPA004766
IECI

4

itraW

4tNod

UNITEDATATE$ ENVIRONMENTAL PROTECTION AGEN4Y

REGION I

F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022113

August 20 1986

Kenneth C Young Commissioner

Maine Department of Environmental

Protection

State House Station 17

Augusta Maine 04333

Dear Commissioner Young

As I mentioned in my letter of July 16 1986 the Environmental

Protection Agency EPA recently received a copy of An Act to

Clarify the Application of Water Quality Standards to Hydroelectric

Projects Hydroelectric Projects Act Maine Public Laws 112th

Legislature Chapter 772 LD 2107 EPA approval of this Act is

required under 40 CFRi Part 131 because this legislation concerns

the reclassification of water quality standards

Our review of the Act reveals that Sections 363C and 6341 are

not in conformance with federal requirements The State must

specify how it intends to meet the concerns listed below within 30

days of receipt of this letter or EPA will disapprove the non

conforming portions of the Act

I Section 363C Classificationfor Certain Hydroelectric

Impoundments

Section 363C of the Hydroelectric Projects Act provides that

For the purposes of water quality classification

the waters of a new or proposed hydroelectric

impoundment shall be deemed to be Class GP A if the

commissioner finds that it is reasonably likely that

the impoundment would 1Whermally stratify

2fexceed

jniot have any

30

upstream

acres in

direct

surface

discharges

area and

except

3

for cooling water

To deem a waterbody a different classification than its present

classification is in effect a reclassification of that waterbody

Although a state may redefine its classification system under the

federal water quality regulations it is subject to the constraints

listed in 40 CFR Part 131 Our review indicates that Section

363C does not meet the requirements at 40 CFR Part 131 for the

following reasons

EPA004767
Letter to Commissioner Young

August 20 1986

Page 2

A Section 13110e specifically states that uprior to adding

or removing any usethe State shall provide notice and an

opportunity for a public hearingunder 40 CFR § 13120b

Section 363C does not meet the requirements of Section 13110e

because it does not provide for such public participation even

though a change from Class AA to Class G137A under this section

would involve both the removal and addition of uses

B Since a change in classification from Class AA to Class GP A

under Section 363C would remove the free flowing characteris

tic uses of the stream without adding criteria or uses which

are more protective of the stream this section is also in

conflict with Section 13110h Section 13I10h specifically

provides that a state may not remove an existing use unlesS a

use requiring more stringent criteria is added

ksEJContrary to 40 CFR 13120c the Commissioner can revise

its water quality standards by reclassifying certain water

bodies under Section 363C without the approval of EPA Section

13120c specifically requires the EPA Regional Administrators

approval of revisions to water quality standards it should be

noted that until the revisions are formally approved by EPA

SectAPILAW oertillcatLoAscannotbe grantPd by fhP stab

HYaroelectric projects

D The three findings that the Commissioner must make in order to

deem the waters of new or proposed hydroelectric impoundment

Class GP A seem to be inconsistent with the designated uses

and criteria protective of Class GP A waters in Section 465A

of An Act to Amend the Classification System for Maines Waters

and Change the Classification System of Certain Waters Re

classification Act Section 363C provides that any waterbody

may be deemed Class GP A if there are no upstream discharges

except cooling water while that classification is characterized

in the Reclassification Act as having no new discharges upstream

EPA requests that the State clarify the apparent discrepancy

between the prohibition of certain discharges to Class GP A

waters in the two provisions

II Section 634 Subsection 1 Coordinated Permit Review

Section 6341 of the Hydroelectric Projects Act requires the

Department of Environmental Protection DEP to issue or deny

Section 401 water quality certification within five days of the

applicants request Failure to act on the certification re

quest results in the waiver of the States certification deter

mination This time period is unreasonably short and therefore

in conflict with Section 401a1 of the Clean Water Act which

provides that the certification authority of the State will only

EPA004768
Letter to Commissioner Young

August 20 1986

Page 3

be waived if the State fails or refuses to act within a reason

able period of time not to exceed one year Further such

waivers are to be made in writing as specified at 40 CFR

12116 and cannot be made by default

Please feel free to call the members of my staff to discuss these

issues Questions regarding this matter should be referred to

David Lederer at 6175653539

Sincerely

0164gArf 0015

Michael R Deland

Regional Administrator

cc Jennie Bridge NEIPCC

David K Sabock Criteria and Standards Branch EPA

EPA004769
trala44

miorteft

164

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

April 24 1987

Robert A Moore

Legal Counsel to the

Governor of Maine

State of Maine

Office of the Governor

Augusta Maine 04333

Re Maine Water Quality Standards

pear Mr Moore

7

7

Exhibit4

01770

I 7

Thank you for your March 24 1987 letter regarding EPAs con

cerns relating to LD 391 and other recently passed water

quality legislation in Maine In your letter you requested a

list of 1 the changes in Maine law which reflect the recent

trend in the State toward the relaxationof water quality stan

dards to allow specific projects to be dertified outside

normal State procedures and 2 the identity of such specific

projects The changes to Maines standards which reflect this

trend are set forth in detail in our earlier letters of July 16

and August 20 1986 copiesof which are attached and our recent

letter of March 6 1987 Set forth below is a summary of several

points in these letters which relate to your questions

1 38 MRSA SS 4671A2 and 4677A3 provide

for the reasonable attainment of Class C standards in Certain

impoundments on the Androscoggin and Penobscot Rivers which are

downstream of the Boise Cascade International Paper and Great

Northern paper mills Inasmuch as the legislature intended

to provide for the establishment of water quality based permit

limits which would be less stringent than those required for

full attainment of Class C uses and criteria these sections are

inconsistent With the water quality standards see July 16

1986 letter

2 38 MRSA 5 363C automatically reclassifies without

the public participation or EPA approval required by federal

law any proposed hydroelectric impoundment that has certain

characteristics to a Class GP A which has no dissolved oxygen

criterion This legislation was enacted after the Board of

Environmental Protections decision to deny certification for

the construction of a dam by Great fq6rthern on the West Branch

of the Penobscot River The decision was based partially on the

fact that the resulting impoundment would be unable to meet the

dissolved oxygen criterion for the existing classification see

August 20 1986 letter

EPA004770
Letter to Moore

Aprii 24 1967

Page 2

3 Section 6 of LD 391 attempted to alter the temixraturr

criterion forthe Class C waters behind the Hackottia Mill dam

in order to relax the disoharge requirements to be applied to

the Palls Tissue plant in Mechanics Pals see March 6 1987

letter It is our understanding that section 6 hasheen deleted

from the bill

EPA recognizes that no specific project has yet been certified

under any of the above referenced statutes however we are

concerned over the trend in Maine toward the passageof such

legislation and are pleased to see that the Governors office

is interested in taking an active role in investigating this

matter If we can be of any further assistance in your efforts

please feel free to contact either David O Lederer of the Water

Management Division or Tonia D Bandrowicz of the Office of

Regional Counsel at 617 5653539 or 617 5653450 respec

tively

nc

Patrick A Parenteau

Regional Counsel Region I

Pncloguren

HAttiott

EPA004771
Exhibit 5

May 21 1987

orpciVE

nrrVnui oETCTIOH

UNITED STATES ENVIRONMENTAL PROTECTICraiNg A 8 28

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON 10SSACHUSETrt me

VICES

Dean Marriott Commissioner

Maine Department of Environmental

Protection

State House Station No 17

Augusta ME 04333

Re LD 2283 and 2107

Dear Commissioner Marriott

As you know by letters dated July 16 and August 201986 I

informed the State of Maine Department of Environmental Protec

tion DEP of the results of the Environmental Protection

Agencys EPA initial review of An Act to Amend the Class

ification System for Maine Waters and Change the Classification

System of Certain Waters the Reclassification Act LD

2283 and An Act to Clarify the Application of Water Quality

Standards to Hydroelectric Projects the Hydroelectric Project Act LD 2107 respectively

While approving major portions of both statutes we commented on

several provisions which did not appear to be in conformance with

the federal water quality regulations 40 CFR Part 131 promul

gated pursuant to Section 303 of the Clean Water Act The provi

siOns in question were 38 MRSA §c 4644F1 and 5 465 4671A2 and 7A3 in Section 15 of the Reclassification

Act and 38 MRSA §S 363C and 634 in Sections 1 and 2 respec

tively of the Hydroelectric Projects Act In our letter we

requested further clarification of these provisions and an explan

ation of how the State intended to meet our concerns

By letters dated September 5 and November 4 1986 former Cbmmis

sioner Kenneth Young responded to EPAs comments Subsequently on

January 21 1987 representatives of EPA met With members of

the DEP to further discuss the issues raised by the provisions

in question In light of our discussions with the State several

issues regarding Sections 4644F5 465 and 634 have been

resolved provided that EPA receives written assurance that the

State will be taking the necessary action regarding Sections

4644F5 nonpoint source control requirement and 465 during

the next standards revision see Attachment A

To date however the State has not adequately reconciled the

remaining provisions with federal requirements or committed to

take the action necessary to change the provisions to conform to

the federal water quality regulations Therefore pursuant to

EPA004772
Letter to Marriott

May 21 1987

Page 2

Section 303c3 of the Clean Water Act EPA is disapproving

the following sections for federal water quality standard pur

poses

38 MRSA §§ 4644F1 definition of existing use and

381RSA § 363C reclassification of proposed hydroelectric

impoundments to Class GPA

The basis for the disapproval and the changes needed to assure

compliance with the requirements of the Act and the regulations

promulgated thereunder are set forth in detail in Attachment A

Yo LL have the opportunity to revise the disapproved sections to

conform to the requirements set forth in the Attachment within

90 days of your receipt of this letter If such revisions are

not made it is EPAs obligation to publish proposed standards

in the Federal Register as a preliminary step toward federal

promulgation

As noted in Attachment A before taking formal approval or

disapproval action on the following provisions we are requiring

further clarification on these provisions from the Maine Attorney

Generals Office within 30 days of receipt of this letter

38 MRSA § 4671A2 on Androscoggin River

38 MRSA § 4677A3

on Penobscot River

classification of impoundments

classification of impoundments

If you have any questions please have your staff contact David

O Lederer of the Water Management Division at 617 5653539

or Tonia DBandrowicz of the Office of Regional Counsel at

617 5653450

Sincerely

A

Michael R Deland

RegionalAdministrator Region I

cc Steven W Groves

Maine Department of Environmental Protection

Tim Glidden

Office of Policy and Analysis

James E Tierney

Maine Attorney General

Robert A Moore Esq

Maine Office of the Governor

EPA004773
ATTACHMENT A

1 Hydroelectric Projects Act

a Section 1 38 MRSA N 363C

Section 363C of the Hydroelectric Projects Act provides that

For the purposes of water quality Classification

the waters of a new or proposed hydroelectric in

poundment shall be deemed to be Class GP A if the

commissioner finds that it is reasonably likely that

the impoundment would l Stratification Thermally

stratify 2 Area Exceed 30 acres in surface area

and 3 Discharge Not have any upstream direct dis

charges except for cooling water

As we pointed out in our Letter of August 20 1986 to deem a

water body a different classification than its current classi

fication for water quality purposes is in effect a reclassi

fication of that waterbody and as such is subject to the

procedures on standards revisions contained in 40 CFR N 13120

Our review of Section 363C reveals that it is inconsistent with

the procedural requirements of Section 13120 because it allows

the State to change the classification of a waterhody without a

public hearing 40 CFR 13120b and the approval of the

Regibnal Administrator 40 CFR N 13120c

The DEP indicated in its November 4 1986 letter that the auto

matic reclassification mechanism of Section 363C is necessary in

order to simplify hydroelectric certification proceedings How

ever to be in full conformance with federal requirements it is

necessary that all standards revisions be conducted on a case by case basis following the Section 13120 procedures This is to

ensure that there is adequate opportunity for public participation

as well as EPA review in the standards revision process

Accordingly EPA is disapproving 38 MRSA N 363C This

provision must therefore be repealed or modified so as to be

in accordance with federal requirements within 90 days or EPA

shall initiate federal promulgation action pursuant to Section

303c4 of the Clean Water Act the Act 33 USC

1313c4

It is noted that in its discussions with EPA the DEP expressed

a concern that unless the classification of an existing river

segment for which an impoundment is proposed can he changed to a

classification which contains no dissa1ved oxygen criteria ie

GP A hydroelectric projects will be in effect precluded in

Maine because the stratified impoundment which results from the

construction of a dam will be unable to meet the dissolved

oxygen criteria under the existing riverine classifications

Reclassification is not necessary however Rather the State

may conduct a site specific study pursuant to 40 CFR

EPA004774
Attachment A

May 21 1987

Page 2

§ 13111b1ii to determine if the existing instream uses

would be protected in the proposed impoundment with a dissolved

oxygen level lower than that in the existing classification If

based on the study the State determines that the existing uses

will be protected even though the current dissolved oxygen criter

ion would be violated the State may then propose to modify the

criterion for the segment in which the proposed impoundment will

be located Such a change mustbe justified by acceptable scien

tific procedures and be in accordance with proper procedures for

standards modifications in 40 CFR § 13120 including public

participation and EPA approval

Regardless Of the classification of any Segment any proposed

hydroelectric project must be consistent with the federal anti

degradation provisions at 40 CFR 23112 and the State

counterpart at 38 MRSA § 4644F1 which are designed to

ensure that existing uses and the level of water quality necessary

to protect those uses are maintained andiprotected1 Thus it

must be demonstrated that the proposed impoundment will not lower

water quality below the level necessary to protect the uses cur

rently existing in the river segment 40 CFR 13112a1

Furthermore if the water quality of the river segment currently

exceeds levels necessary to support the propagation of fish shell

fish and wildlife and recreation in and on the water fishabW

swimmable waters the antidegradation provisions also require a

demonstration of important social and economic benefits to the con

struction of the dam in order to justify lowering the water quality

40 CFR § 13112a2 and 38MRSA g 4644F5

b Section 2 38 MRSA § 6341

Section 6341 which concerns the issuance of hydroelectric pro

ject permits provides that

the commissioner of Environmental Protection or

director of Maine Land Use Regulation Commission

shall issue or deny a water quality certificate

pursuant to Section 401 of the Act based on the

Board of Environmental Protections or the Maine

Land Use Regulation Commissions finding pursuant

to 38 MRSA Section 6361 subsection 7 para

graph G as to whether there is reasonable

1 In other words even if site specific criteria are developed

or the water segment was reclassified to a Class GP A the

proposed project must be shown to be consistent with antidegrada

tion provisions

EPA004775
Attachment A

Nay 211987

Page 3

assurance that the project will not violate ap

plicable water quality standards within 5 work

ing days of the permit applicants request or

the issuance of a permit If the commissioner

or director fails to act on the certificate the

federal certificate requirement ofSection 401

shall be waived

In our A6ljust 20th letter we infbrmed the DEP that 5 working days

was an unreasonably short period of time within which to issue or

deny certification and therefore inconsistent with Section 401a1

of the Act which states that the certification authority of the

State will only be waived if the State fails to act within a

reasonable period of time not to exceed one year2 EPA further

commented that any waiver of certification authority must be in

writing as required by40 5 12116 and cannot he made by

default

In its November 4th letter the DEP stated that under the DEPs

interpretation of Section 6341 the Board of Environmental

Protection Board or the Maine Land Use Regulation Commission

Commission in the organized and unorganized territories of

the State respectively have 105 days after receiving a hydro

electric project permit application in which to make a determina

tion of whether to issue such permit3

This determination is based on a number of factors including

whether there is reasonable assUrance that the discharge from

the proposed project will not result in a violation of applicable

water quality standards After the Board or Commission makes its

determination on permit i6suance the Commissioner or Director

has five working days within which to issue or deny Section 401

certification According to the DEP the issuance or denial of

such certification by the Commissioner or Director is purely a

ministerial function and is based on the finding of whether

or not water quality standards will be violated already made

by the Board or Commission pursuant to Section 6367G Since

the actual determination of whether water quality standards will

be met is made by the Board or Commission and those agencies

have 60 days and 105 days respectively in which to make their

finding the DEP argues that the time period in effect meets

the federal requirement of reasonableness

2 40 CFR 5 12116 promulgated under Section 401 of the Act

provides that the reasonahle period of time shall generally he

considered to be 6 months but in any event shall not exceed I

year

2 While it is true that under 38 MRSA 5 635A the Commission

has 105 days within which to make its decision it is EPAs under

standing that sectiOn 635A only provides the Board with 60 days

EPA004776
Attachment A

May 21 1987

Page 4

In accordance with the DBPs interpretation Section 6341 pro

vides that the certification decision will be based on the Board

or Commissions water quality determination It also states how

ever that the Commissioner or Director shall issue or deny certi

fication within 5 working days of the applicants request

emphasis added This could be taken to mean that the certifica

tion decision is to be made prior to the Boards or Commissions

determination on permit issuance and consequently their finding

on whether the discharge will meet water quality standards To

correct any misinterpretation that might result from this language

the DEP has clarified the meaning of Section 634C in the Adminis

trative Regulations For Hydroelectric Projects adopted December

10 1986 by providing that

The Commissioner or Director as appropriate shall

actto issue or deny water quality certification

within 5 working days following the decision by the

Board or Commission toapprove or disapprove a

proposed project pursuant to 38MRSA Section 636

emphasis added

In light of the DEps clarification of the meaning of Section

6351 in the regulations EPA finds that this provision is

consistent with federal requirements

With respect to the issue of the written notification of the

States intention to waive its certification authority the

DEP in its November 4th response argued that notwithstanding

40CPR §12116 federal law does not require written

notification of the States waiver but that the State would be

requiring such notification through its rulemaking process

The regulations subsequently issued pursuant to 38 MRSA

§ 630 however did not contain a written notification require

ment and the DEP at the January 21st meeting stated that it

would not be requiring such notification in writing

Section 12116 requires written notice to EPA of the States

waiver of certification in order that EPA may initiate its review

under Section 401a2 of the Act and Sections 12113 12114

and 12115 of the federal regulations EPA is not disapproving

the absenceof the written notification provision in the States

regulations butwishes to make clear that the States failure to

provide such notification may potentially delay permit or license

issuance

2 Reclassification Act

a Section 15 38 MRSA g 4644F1

The term existing instream water uses is defined in Section

4644F1 as significant well established uses that have

actually occurred on a water body on or after November 28 1975

EPA004777
Attachment A

May 21 1987

Page 5

emphasis added As noted in our August 20th letter this

definition is narrower than and therefore inconsistent with the

federal definition at 40 CFR S 1313e ie uses actually

attained in the water body on or after November 28 1975 whether

or not they are included An the water quality standards

By including the terms significant and well established in

its definition Maine may be precluded from finding that a use

exists iri situations where the water quality is suitable to

allow such a use to occur even though the use may not currently

be occurring or haS only been occurring for a short period of

time This would be inconsistent with the federal definition

Accordingly EPA is disapproving the definition of existing

use in Section 4644F1

In order to be consistent with the federal definition the State

must delete the phrase significant well established from its

definition In addition to clarify that a use can be an existing

use even though it is not a designated use the State must also

expressly provide that the use is existing whether or not it is

included in the water quality standards Unless such action is

taken within 90 days EPA shall in accordance with federal

requirements initiate promulgation action

b Section15 38 MSRA S 4644F5

The States antidegradation provision is contained in 38 WRSA S 4644F Subsection 5 of Section 4644Fprovides that

The board may only issue a discharge license pur

suant to Section 414A or approve water quality

certification pursuant to the United States

Clean Water ActSection 401 Public Law 92500 as

amended which would result in lowering the existing

quality Of any water body after making a finding

following opportunity for public participation

that the action is necessary to achieve important

economic or social benefits to the State and when the

action is in conformance with subparagraph 3 That

finding mustbe made following procedures established

by rule of the board

In accordance with 40 CFR § 13112a2 this provision re

quires a finding of important economic and social development prior

to the approval of a discharge which would result in a lowering

of the water quality within a waterbodys classification

however as we noted in our July 16th letter this section

does not expressly provide that the water quality cannot be low

ered below the level necessary to fully protect existing uses

40 CFR S 13112a2

In its September 5 1986 letter the DEP explained that this

Section does not stand on its own and must beread in conjunction

with Section 4644F1 which does expressly require the full

protection of existing uses EPA finds the States interpretation

EPA004778
Attachment A

May 21 1987

Page 6

of SeCtion 4644F satisfactory especially since it is support

ed by the Mater Reclassification Report of the Joint Standing

Committee on Energy and Natural Resources March 19864

We also noted in our July letter that Section 4644F5 does

not contain a requirement that the State satisfy the intergov

ernmental coordination and public participation provisions of

the Stats continuing planning process CPP 40 CFR

§ 131122 However the DEP has informed EPA that public

Participation and aUthority for intergovernmental coordination

are required by the draft Rules Relating to Antidegradation

Policy and 38 MRSA § 366 respectively EPA finds the

federal requirements are therefore satisfied provided that the

draft antidegradation rules are adopted

Finally Section 4644F5 does not contain a specific require

ment that the State assure that there will be achieved the highest

statutory and regulatory requirements for all newand existing

point sources and all cost effective and reasonable best management

practices fornonpoint source control AO CFR 13112a2

In its September 5th letter the DEP explained that these require

ments are covered by Secton 414A of Title 38 of theMRSA

That section provides that the Board of Environmental Protection

shall issue a license for the discharge of any pollutant only if

it finds among other things that

The discharge will be subject to effluent limita

tions which require application of best practicable

treatment Effluent limitations means any

restriction or prohibition including but not limited

to effluent limitations standards of performance

for new sourdes toxic effluent Standards and

other discharge criteria regulating rates quantities

and concentrations of physical chemical biological

and other constituents which are discharged directly

or indirectly into waters of the State Best practi

able treatment means the methods of reduction treat

ment control and handling of pollutants includ

ing process methods and the application of best

conventional pollutant control technology or hest

available technology economically achievable for a

category or class of discharge sources which the

hoard determines are best calculated to protect and

improve the quality of the receiving water and which

are consistent with the requirements of the Federal

Water Pollution Control Act as amended In deter

mining best practicable treatment for each such

4 See page 8 In no instance may the Board of Environmental

Protection approve a discharge which would cause water quality

to be below the standard of the appropriate classification

EPA004779
Attachment A

May 21 1987

Page 7

category or class the board shall consider the then

existing state of technology the effectiveness of

the available alternatives for control of the type

of discharge and the economic feasibility of such

alternatives emphasis added

Because the State has inEerpreted this language to cover both point

and nonp5int source control EPA is not disapproving Section 4644F5 at this time however EPA believes that the States

interpretation is vulnerable to a legal challenge and therefore

expects the State to incorporate a specific requirement on non

point source control in either the statute or the rules and

regulations promulgated under the statute during the next stan

dards revision The DEP should submit written assurance to EPA

within 30 days of recommending receipt of this letter that it will be

such a requirement to the legislature during the next standards

revision

c Section 15 38 MSRA § 465 24 Protection of Salmonid

Spawning

In our July 16 1986 letter we noted that the dissolved oxygen

criterion in Section 465 protective of salmonid spawning areas

was provided for in Class A and Class B waters but not in

Class C waters The States September 5 1986 response indicated

that the dissolved oxygen criterion for salmonid spawning was

not included in the standards since the EPA national water quality

criteria document 51 FR 22978 June 24 1986 for dissolved

oxygen was not final during legislative action on the bill The

DEP stated however that it would use EPAs dissolved oxygen

criterion for the Maine standard in designated spawning areas in

Class B and C waters In light of these facts EPA is not disap

proving this section at this timehowever the DEP should submit

written assurance to EPA within 30 days of receipt of this letter

that it will be recommending adoption of theEPA national

criterion to the legislature during the next standards revision

d Section 15 38 MRSA § 465 Chronic Criterion for Dissolved

Oxygen

EPAs July 16 1986 letter pointed out that the Maine instantaneous

dissolved oxygen criterion in Section 465 might not provide full

protection in light of the final national criterion document 51

FR 22978 June 24 1986 which recommends that a chronic criterion

be utilized in addition to an instantaneous minimum

The States September 5 1986 response indicated that the standards

only contain an instantaneous minimum criterion since the national

criteria document for dissolved oxygen was not final at the time

of legislative action The DEP further stated that the instantan

eous minimum criterion listed in the standards would yield averages

similar to those in the national criteria document and that the

instantaneous minimum would be easier to monitor enforce and

model Nevertheless EPA believes that chronic criteria for

EPA004780
Attachment A

May 21 1987

Page 8

dissolved oxygen are needed in water quality standards This is

particularly true for the many flow regulated streams in Maine

where nearly steadystate low flows during long periods of summer

time conditions may cause chronic impacts on fisheries

Since the national document was not finalized until after legisla

tive action on the bill EPA is not disapproving this section at

this time however the DtP should submit written assurance to

EPA wittiln 30 days of its receipt of this letter that it will be

recommending adoption of EPAs chronic criterion for dissolved

oxygen to the legislature during the next standards revision

p Section 15 38 MRSA Sê 4671A2 and 7A3

In Sections 4671A2 and 7A3 the Maine legislature

recognizes that at certain times the impoundments on the Andro

scoggin and Penobscot Rivers respectively have not and maynot

continue to meet the Class C requirements for aquatic life and

dissolved oxygen due to conditions existing in the impoundments

The legislature further recognizes that these impoundments con

stitute a valuable indigenous and renewable energy resource for

hydroelectric energy The legislature concludes by stating that

the value and importance to the people of the state

of hydroelectric energy and the unavoidable conse

quences to water quality resulting from the exist

ence of these impoundments shall be considered when

the board determines the impact of a discharge on

designated uses of impoundments These impound

ments shall be considered to meet their classifica

tion if the department finds that conditions in those

impoundments are not preventing their designated uses

from being reasonably attained

As pointed out in our August 20th letter the federal regulations

require the full protection not reasonable attainment of a

classifications designated uses Accordingly if it was the

legislatures intent to provide for something less than the full

protection of uses and to permit the violation of the Class C

criteria in these impoundments this language is inconsistent

with federal requirements and must be disapproved

The DEP has indicated however that the provisions in question

merely state the intent of the legislature to create subcategories

of the existing classifications uses and assign criteria specific

to these impoundments pursuant to 40CFR 13110 after the

State conducts the necessary studies and follows the proper

procedures for such a subcategorization see September 5

1986 letter5 Thus the State notes inits letter that a UAA

5 As we pointed out in our July 16th letter under 40 CFR S 13110g the State may adopt subcategories of an existing

classifications uses after showing through a use attainability

Footnote continued on next page

EPA004781
Attachment A

May 21 1987

Page 9

is currently being conducted for the impoundments on the Andro

scoggin River and that once the study is completed hearings

will be held and criteria selected and legislated

Completion of the study however has been delayed several times

In addition no study is beingperformed or planned for the

impoundments on the Penobscot River Since the UAAs are not

completed the States attempt at subcategorizing these impound

ments ie hot yet effectuated Therefore until a change in

criteria is developed and justified by a UAA and the Section

13120 standards revision procedures followed the language in

Sections 4671A2 and 7A3 has no effect on the classifi

cation of the impoundments which under Sections 4671A1

and 7A2 are Class C6

Inasmuch as the legislative intent of Sections 4671A2 and 7A3 is consistent with EPAs interpretation as outlined

above the provisions are approved If however the intent of the

provisions is to permit the violation of existing criteria prior to

a proper subcategorization under Section 13110g or the develop

ment of site specific criteria under Sectibn13111b1ii

these sections must be disapproved The State should therefore

submit a written statement to EPA within 30 days of its receipt

of this letter from the Maine Attorney Generals Office on their

interpretation of these sections

5 cont

analysis UAA that the attainment of the designated uses is

not feasible because of one or more of the reasons set forth in

subsections 1 through 6 of Section 13110g and following

the procedures for a standards revision under 40 CFR 6 13120

The DEP was also informed at the January 21st meeting that it

could in the alternative develop site specific criteria for

these impoundments if after conducting a study based on accept

able scientific procedures the State determined that the

existing uses will be protected even though specific criteria

may be violated see 40 CFR S 13111b1ii

6 The States water quality standards in addition to establishing

the water quality goals for specific waterbodies also serve as

the regulatory basis for the establishment of water quality based

treatment controls Since the UAAs have not been completed and

different criteria established for these impoundments EPA will

continue to write permits for the upstream dischargers based on

Class C criteria

EPA004782
0 ED 514

Ars

UZZI UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

pçec REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

August 32 1987

Dean C Marriott

Commissioner

Maine Department of Environmental Protection

State House Station 17

Augusta Maine 04333

r

Dear Commissioner Marriott

Thank you for your July 16 1987 letter outlining the plans

the Maine Department of Environmental Protection DEP has to

correct the deficiencies in state law which necessitated EPAs

May 21 1987 disapproval of certain sections of Maines water

quality standards

I felt our recent disdussion on this matter was helpful and I am

delighted that the DEP plans to work with EPA the Legislature

and the Governors Office to develop the changes necessary to

comply fully with the federal statutes and regulations

We encourage your efforts to substitute measurement criteria for

the adjectives significant and well established in LD 2283 to

clarify the procedure by which existing uses will be established

in the standards implementation process

In response to your letter we request the following information

andor clarification of DEPs planned future course of action

1 Your letter stated your intention to comply fully with

the public notice and EPA review criteria while preserving the

coordination intent of the Maine Waterway Development and

Conservation Act It is unclear how the procedural scheme

outlined for dam certification under LD 2107 can be altered to

comply with the public notice and EPA review requirements short

of the repeal of these secbions Therefore we request

clarification of what specific proposals the DEP intends to make

to the Legislature on this issue In addition we request that

DEP inform us of the number and locations of potential projects

which could be affected by LD 2107

EPA004783
2 With regard to the Androscoggin and Penobscot River

classifications we request that the DEP submit a detailed

schedule for the preliminary decision making steps regarding the

future classification of the segments ie public hearings

In addition there are a number of issues contained in our May

21 1987 disapproval letter on which we still require specific

confirmation

1 Written assurance from DEP that it will recommend the

required changes to the non point source control language contained

in the LD 2283 during the next standards revision

2 Written confirmation that DEP will recommend adoption

of the national dissolved oxygen criteria for salmonid spawning

in accordance with the national criteria document 51 FR 22978

June 24 1986 to the Legislature when the standards are next

revised

3 Written confirmation that the DEP will recommend adoption

of a chronic dissolved oxygen criterion in accordance with the

national criteria document 51 FR 22978 June 24 1986 to the

Legislature during the next standards revision

We must begin the process of preparing a promulgation package for

publication in the federal register due to the framework set

forth in our regulations at 40 CFR §13122 Publication of

the proposed rules should coincide with the next state Legislative

sessions efforts to address correction of the disapproved standards

provisions

I thank you for your continued cooperation and trust that by working

together we can reach a mutually acceptable solution to the

issues outlined above

Sincerely yours

2

Michael R Deland

Regional Admistrator Jj

CC David

Qiuars

Sabock

nrrodg

EA Headquarters

nFP L4

Tim Glidden Office of Policy and Analysis

Janes E Tierney Maine AttorneY General

Ron Kriesman Esq Natural Resources Council of Maine

Lee C Shroer Esq EPA Headquarters

Robert Moore Esq Office of the Governor

I

45e G

t

IL I

EPA004784
Exhibit6

se ED Stitea

P AlEgt

2ra z

4t PiOt

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

JF KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211

November 3 1988

Stephen W Groves Director

Bureau of Water Quality Control

State of Maine

Department of Environmental Protection

State House Station 17

Augusta Maine 04333

Re Proposed Changes to 38 MRSA §§

Related Matters

r

1

C771

363C and 4644F1 and

Dear Mr Groves

By letter dated May 21 1987 the Environmental Protection Agency EPA disapproved pursuant to Section 303 of the Clean Water

Act 33 USC § 1313 and the regulations promulgated thereunder

at 40 CFR Part 131 the following sections of the Maines

Water Quality Standards

38 MRSA § 464F1 Definition of existing use and

38 MRSA § 363C Reclassification of proposed

hydroelectric impoundments to Class GPA

In our May 21st letter we also requested that the DEP provide

written assurance that it would make other specified changes to

38 MRSA §§ 4644F5 and 46524 during its next water

quality review and provide an interpretation of 38 MRSA §

4671A2 and 4677A3 from the Maine Attorney Generals

Office

On November 25 1987 the Maine Department of Environmental

Protection DEP sent EPA proposed changes to 38 MRSA §§

363C and 4644F1 Consistent with the informal comments

provided to the DEP on April 10 1988 EPAs position with

respect to these proposed changes is set forth below Maine has

also recently proposed regulations which implement certain

provisions of the Maine Water Quality Standards Chapter 587 of

these regulations directly relates to the definition of existing

use proposed by the State in Section 4644F1 We have

therefore included comments on this regulation as well

1 Section 464F1 Definition of Existing Use

The definition of existing use in the proposed revision to

Section 464F1 is missing certain key language which is in the

federal definition of that term at 40 CFR § 1313e

EPA004785
2

Specifically the federal index date of November 28 1975

which is in Maines current version of Section 464F1 is

omitted in the proposed revision This date or if preferred

an earlier date must be included in the States definition of

existing use In addition theproposed definition does not

provide that uses are existing whetherii7ii6EaiTre included

in the water quality standards Such language must be added to the States definition so it is clear that a use may be existing

even though it is not a designated use under Maines Water

Quality Standards

The proposed revis also includes language which is

inconsis en with the federal antidegradation policy

Specifically the revision states that factual determinations of

what constitutes an existing instream water use on a particular

water body and the extent of allowable impact on the existing use

shall be made on a case bycase basis Emphasis added The

phrase and the extent of allowable impact on the existing use

must be deleted since it indicates that existing uses Will not

be fully maintained and protected as required by federal law

Unless thechan9esonoted above are made the statutory provision

will not be approvable

In the proposed d TDnition of existing use Maine has also

listed specific criperia for the State to examine in making case

by case determinatiOns of what constitutes an existing instream

water use on a particular water body The recently proposed

regulations in Chapter 5871 of the Bureau of Water Quality

Control Regulations eXpands on the criteria the Board will

examine In general this approach of including the criteria the

State will examine in determining whether a use is existing in

the States definition of existing use is acceptable to EPA

It is not clear however if based on the specific criteria the

State has chosen all the uses that would be considered

existing under the federal definition would also be considered

existing under the States definition

In particular since the criteria listed in both the proposed

statutory provision and the regulation emphasize the length and

1

number of times a use has occurred EPA is concerned that the

State could determine that a particular use was not existing

because such a use was not currently occurring or documented as

occurring even though the water quality was suitable to allow

such a use to occur For example the State might improperly

determine that shellfishing is not an existing use in an area

where shellfish are propagating and surviving and are suitable

for harvesting simply because the shellfish are not currently

being harvested See EPAs Quptions and Answers on

Antidegradation dated August 14485o Therefore although EPA

would not disapprove Section 464F1 as proposed we do

recommend that Maine add language to either the statute or the

EPA004786
3

regulations that would make it clear that the State will take

into account whether the existing water quality is suitable to

allow certain uses to occur even though they may not be currently

occurring

Furthermore the criteria the State has chosen to include in

Chapter 5871 relate primarily to human uses such as boating

swimming fishing etc Since Maines Water Quality Standards

specifically designate habitat for fish and other aquatic life

as a use EPA also recommends that additional criteria be

developed which relate to the aquatic life use This could

include reports or testimony which document the species of fish

in a particular waterbody or habitat suitability information

confirming that certain aquatic uses could occur in a waterbody

in the absence of testimony

The proposediegulations in Chapter 587 also raise a question

regarding the States antidegradation policy Under the federal

anti degradation policy any proposed discharge which would

cause a lowering of water quality requires a demonstration of

important economic and social benefits 40 CFR

§ 13112a2 EPAs currect view is that if a discharge will

not significantly lower water quality the antidegradation

requirements will be met and a detailed economic and social

benefit analysis need not be performed Since there is no EPA

national guidance identifying a single acceptable method for

determining whether a discharge is significant the Region has

proposed that the definition of significant be left up to the

states subject to EPA approval

Under the proposed Chapter 5875B Maine has chosen to operate

under the rebuttable presumption that lowering of the existing

quality of any water body will occur when a proposed discharge

or activity consumes greater than 20 of the remaining

assimilative capacity allowed in the appropriate class Thus

all discharges below the 20 cutoff would automatically be

determined to be insignificant Such an approach could have

results which are contrary to the federal antidegradation policy

since repeated or small discharges below the 20 cutoff could

result in significant water quality degradation without a

demonstration of economic and social benefit For this reason

the Region finds that the proposed regulation as drafted may

not be approvable without changes

Until national policy on this issue is established the Region

would find this provision acceptable if it is redrafted in the

following manner First the regulation should be changed so

that all discharges greater than 20 of the remaining

assimilative capacity would be automatically deemed

significant

EPA004787
4

Second the regulation should provide that all discharges less

than the 20 cutoff will be subject to a case bycase review by

the State to determine whether or not the discharge is

significant In examining each discharge on a case by case

basis the State will consider certain listed criteria such as

the degree of degradation that has been permitted previously the

sensitivity of the particular water body etc

Finally the regulation should state that notice of the State

finding of significance or insignificance and an opportunity to

comment on such finding will be included in the public notice of

the permit proposedto be issued to the discharger

2 38 MRSA § 363C Reclassification of Proposed

Hydroelectric Impoundments

The proposed provisions on state certification and dam licensing

are acceptable but the State must clarify Section 635Bl C so

that it is understood that it is the change in the

characteristics of the waterbody both upstream and downstream

resulting from the proposed dam that must not violate Section

4644F

3 Other Issues

To date EPA has not received written assurances that the State

will incorporate specific requirements on nonpoint source control

in 38 MRSA § 4644F5 or include dissolved oxygen

criteria protective of salmonid spawning in 38 MRSA 5

46524 as required by EPAs May 21 1988 letter referred to

above These written assurances should be submitted to the

agency as soon as possible

In addition EPA has not received an interpretation of 38 MRSA § 4671A2 and 4671A3 from the Maine Attorney

Generals Office The Region recognizes that the State has been

following the interpretation put forth by EPA in its May 6th

letter regarding these two provisions However until this

interpretation is confirmed by the AttorneyGeneral the

provision is subject to alternative interpretations in the future

which may not be consistent with federal requirements For this

reason the State must either remove the language in question

from the statute or submit a formal Attorney Generals Statement

which indicates that it is being read consistently with federal

requirements

EPA004788
5

Please feel free to call Eric Hall of my staff or Tonia D

Bandrowicz or Jonathan Kaledin of the Office of Regional Counsel

if youhave any questions regarding this matter Mr Hall can be

reached at 617 5653533 Mr Kaledin can be reached at 617

5653334 Ms Bandrowicz will be on detail to EPAs Washington DC Office until February 1989 but can be reached at 202

4758180

Sincerely

David A Fierra Director

Water Management Division

cc Ron Kriesman Natural Resources Council Maine

David K Sabock WH585

Jonathan Kaledin RRC2203

EPA004789
Exhibit 7

0E0 S

cgp UNITED STATES ENVIRONMENTAL PROTECTION AGENCN

P IA Ti

REGION

JF KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211

i<

May 11 1989

Philip F Aherns

Deputy Attorney General

Department of AttOrney General

State House Station 6

Augusta ME 04333

Re 38 MRSA 4671A2 and 4677A3

Dear Chip

It is our understanding that the Maine Departmenttof

Environmental Protection DEP at the request of the US EPA

has asked your office for an interpretation of 38 MRSA

4671A2 and 4677A3 I am writing to find out the

outcome of your review of this legislation specifically as to

whether you agree with EPAs interpretation as set forth in our

May 21 1987 letter to the Maine DEP attached

would appreciate if you could provide us with a response in the

near future because ifEPAs interpretation in not valid and a

statutory change is necessary it is our understanding that the

state legislature will only be in session until the end of June

Thank you for your assistance in this matter

Sincerely

onia D Bandrowicz

Assistant General Counsel

cc John Edwards ME AG

Steve Groves ME DEP

Tim Glidden Policy Office

Bill DiamondDave Sabock OWRS

Ron ManfredoniaEric Hall Region I

EPA004790
4

A

December 20 1990

Dean Marriott Commissioner

Department of Environmental Protection

State House Station 17

Augusta ME 04333

Dear CoMmissioner Marriott

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION

JF KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211

i

t

The Environmental Protection Agency has completed its review of

several pieces of legislation and regulation revising and addihg

to the Maine water quality standards program Also considered in

this review is a letter from the Maine Attorney General containing

a critical interpretation of reasonable attainment of wateruses

The specific documents reviewed are

Regulations

Chapter 580 Procedures for sampling and analysis

Chapter 581 Assimilative capacity of streams and ponds

stream minimum flows zone of passage and trophic state

of great ponds

Chapter 582 Temperature

Chapter 584 Numeric criteria Option 1

Chapter 585 Identification and designation of spawning

areas in Class 8 and C waters

Chapter 586 Discharge restrictions in Class A waters

1989 Legislation

Repeal of 38 MRSA §363C Automatic reclassification

Enactment of 38 MRSA §464 sub §411 F Antidegradation

Repeal and amendment of 38 MRSA §634 sub§1 38 MRSA

§635 B 38 MRSA §636 sub §7 3j AE and F Repeal of

38 MRSA 5636 sub§7 1 G Enactment of 38 MRSA §363

sub §8 All dealing with water quality certification of

hydroelectric projects

1990 Legislation

Amendment of 38 MRSA §464 sub §4 y F Antidegradation

PMNTED ON RECYCLED PAPER

Exhibit 8

EPA004791
Amendment of 38 MRSA §467 Reclassification of several

basins Androscoggin River Dennys River East Machias

River Machias River Mousam River Narraguagus River

Penobscot River Pleasant River Presumpscot River Royal

River Saco River St Croix River St George River St

John River Salmon Falls River Union River Kennebec

River and Maine Coastal Basins

Enactment of 38 MRSA §414C and §466 sub§§2A and 9C

Color pollution control

Amendment of 38 MRSA§467 sub §15 5 C An act preven

ting the Board of Environmental Protection from consider

ing the impact on water quality of the Squa Pan hydro

electric project

Amendment of 38 MRSA §414A sub §2 Permit schedules of

compliance

Enactment of 38 MRSA §420 sub§2 55 A to G Adoptidn

of numeric criteria Option 1 through legislation

Interpretation

A letter from the Maine Department of the Attorney Gen

eral interpreting 38 MRSA §4671A2 and 7A3

indicating that reasonable attainment means full

compliance with Maine law and regulation

Pursuant to sections 303 c1 and 303 c2B I am approving

your submittals with one exception the 1990 amendment of 38 MRSA

§467 sub §15 ¶ C An Act Regarding Squa Pan Stream Under sep

arate cover I am sending foLwal notification of EPA disapproval

of the Squa Pan legislation

With this approval of your classifications numeric criteria adop

tion antidegradation policy and proper interpretation of attain

ment of designated uses the State of Maine is in compliance with

the federal regulations 40 CFR 131 governing water quality stan

dards

My staff andI look forward to continued cooperation with DEP and

to better coordination with the Maine Legislature in the areas of

standards development and implementation We are prepared to offer

assistance in the drafting and review of companion policy and

guidance documents at your convenience If you have any questions

please call me or have your staff call Eric Hall at 617 5653533

SiRcerely

I

ejã

egidnaIKdMInisirator

I cc

ijaliidIt Sabock EPA WH585

Lee Schroer EPA LE 132W

etelilanche ME DEP

Tim Glidden Office of Policy Analysis ME Legislature

EPA004792
I lira

it moll

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

JF KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203r2211

March 25 1993

Dean Marriott Commissioner

Maine Department of

Environmental Protection

State House

Station 17

Augusta ME 04333

Exhibit 9

Re EPA CWA Section 303 Approval of Change to

Ripoaenus Impoundment Water Oualitv Standard

Dear Commissioner Marriott

lam responding to the States February 8 1993 and October 26

1992 letters proposing a downgrade in Maines water quality

standard for the Ripogenus Impoundment on the West Branch of the

Penobscot River Based on the information supplied by the Maine

Department of Environmental Protection DEP including the use

attainability analysis UAA prepared with assistance from

BowaterGreat Northern Company and the public comment on that

UAA and for the reasons set forth below we approve the States

proposed change in the criteria for thehabitat and aquatic

life use for this water body to that contained in Part A of

PL 1992 Chap 813

According to the October 26 letter the proposed change is based

on 40 CFR §13110g4 This subsection provides for the

removal of or establishment of a subcategory of a designated

use if the State demonstrates that

dams diversions or other types of hydrologic modifications

preclude the attainment of the use and it is not feasible

to restore the water body to its original condition or to

operate such modification in a way that will result in the

attainment of the use

The October 26 letter further states that environmental studies

conducted by BowaterGreat Northern Company support the

conclusion that it is not feasible to operate the companys

hydropower project in such a way that the Ripogenus impoundment

would meet the current natural criteria for the aquatic life

use for this water body For clarification the ability of the

impoundment to meet the Class AGPA natural criteria is not at

issue in this reclassification Rather the question is whether

the UAA demonstrates that the Ripogenus Project precludes the

attainment of the criteria in the Class C habitat and aquatic

life use and it is not feasible to operate the dam in a way that s10

SAVE 171

NATnrile

PRINTED ON RECCLE PAPER

EPA004793
2

will result in the attainment of that use1

We recognize that currently there is no national EPA guidance on

the interpretation of 40 CFR §13110g4 in particular

guidance on when it is feasible to modify the operation of a

dam so that standards will be met We understand that EPA will

be developing such guidance to deal with the difficult and unique issues faced in reconciling water quality issues where

hydrological modifications predate state water quality standards

In the absence of such guidance the Region in consultation with

EPA Headquarters has taken a reasoned approach in interpreting

subsection 13110g4 Thus the Region has considered the

practical and environmental implications of modifying the

operation of the dam as well as the technical and economic

feasibility of doing so

In the situation involving the Ripogenus Impoundment we are

willing to accept the States finding based on the UAA

documentation and public comment that it is not feasible to

operate the dam in a way that would maintain the Class C habitat

and aquatic life criteria in part because the aquatic community

that has evolved in the impoundment and downstream waters

constitute an important fishery resource that would be at risk

should the projects operation be significantly altered In

making our decision we acknowledge that the company has as part

of the FERC mandated environmental review made some concessions

by agreeing to adjust its operation of the dam to further protect

the downstream fishery and to remediate the dry reach in the

upper gorge While not used as a basis by the State

1

As we stated in our February 4 1992 letterEPA

recognizes that the requirement to meet the natural Class AGPA

or unimpaired Class B habitat and aquatic life use may not

necessarily be appropriate for all situations involving existing

impoundments We therefore accepted the language in Part B of

PL 1992 Chap 813 which provides that the habitat and aquatic

life uses would be met for certain Class A and GPA existing

hydropower impoundments if those waters could support the

criteria in the lowest classification that is Class C As a

result under the current classification the Ripogenus

impoundment does not have to meet the natural criteria for the

habitat and aquatic use rather it must achieve the Class c

criteria which requires that the impoundment support all species

of fish indigenous to those waters and maintain the structure and

function of the resident biological community provided that some

changes to aquatic life may occur due to the hydrologic

modifications of the impoundihents It has consistently been the

Regions position that in order to go below the Class c criteria

for the habitat and aquatic life use as is proposed for the

Ripogenus impoundment the federal procedures requiring a UAA and

public participation must be satisfied

EPA004794
3

there is also evidence in the record suggesting widespread

adverse economic and social impact in the project area should

major operational changes be required

We wish to point out that the UAA prepared in this case although

acceptable under the unique circumstances presented by the

Ripogenus impoundment ie the valuable fishery that results

from the current operation of the dam it may not be

satisfactory under other circumstances In those more common

cases where there is no clear environmental benefit resulting

from continuing the current operation of the dam the burden to

support the status quo would be higher

Although not a factor affecting our approval of the States

proposed downgrade in this specific case we find that there were

several comments made by the environmental groups during the

public participation portion of the UAA process that raise issues

which should be addressed in either the CWA section 401

proceeding or FERC relicensing For example recent information

regarding tissue mercury concentrations in fish and bald eagles

should be considered in the ongoing environmental review of the

Ripogenus and other Maine hydropower relicensing activities We

suggest the CWA section 401 review and FERC environmental

assessment evaluate the role of the impoundments operation on

the mobilization of mercury through the food chain Should

linkage between impoundment management and tissue toxicant levels

be established appropriate license conditions should be included

or added

We believe that todays approval of the Ripogenus Impoundment

water quality standard downgrade demonstrates that the UAA and

public participation process can work and provides support for

the State to take action to address EPA objections to Part A of

PL 1992 Chap 813 We are concerned that this legislation may

be used to avoid the UAA and public participation downgrading

requirements in other FERC relicensing cases in Maine in the

future

As you know EPA issued a CWA section 303c3 letter to the

State disapproving thestandards change made by Part A of this

legislation It is our understanding that the State intends to

draft and submit new legislation amending the water quality

standards this session seas to correct the problems identified

in our disapproval letter Such standards amendments must be

presented this session or in accordance with the CWA EPA will

be required to begin the process of promulgating a federal

standard As we have stated previously we believe that as part

of the amendments Maine should incorporate UAA and public

participation requirements comparable to those in the federal

regulations directly in the state law as other states have done

The amendments to the water quality standards should also include

necessary reclassification of the Ripogenus Empoundment

EPA004795
4

specifying the new lower criteria for that water body We urge

the State to involve EPA at the earliest possible date and

forward a copy of the draft legislation when it is ready to EPA

for review and comment

As always my staff and I are willing to meet with the State and

other interested parties to try to resolve the inconsistencies

between State standards and federal requirements Please call

me or have your staff contact Eric Hall of the Water Management

Division or Tonia Bandrowicz of the Office of Regional Counsel at

617 5653533 and 617 5653316 respectively

Sincerely

ct4Zedie

Paul G Keough

Acting Regional Administrator

cc Steven W Groves ME DEP

Tim Glidden ME OPA

Jon Edwards ME AG

William DiamondDave Sabock EPA OST

Lee C SchroerCarol Ann Sicilano EPA 0GC

Brian Stetson Bowater

Dan Boxer Esq

Dean Beaupain Esq

Dan Sosland CLF

Eric Hall EPA I

Tonia Bandrowicz EPA I

Michael Ochs EPA I

EPA004796
Exhibit 10

eTe4

P in 4

GC°

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION

JF KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211

APR 123

Dean C Marriott Commissioner

Bureau of Water Quality Control

Department of Environmental Protection

State House Station 17

Augusta ME 04333

Re LD 1019 An Act to Establish a Monthly Average Dissolved

Oxygen Standard for Class C Waters

Dear Mr Marriott

We have reviewed L D 1019 dealing with amendments to the

dissolved oxygen criterion forClass Cwaters The language in

38 MRSA 465 sub§4 513 is proposed to be modified to include

requirement for the protection of adult salmonids of a dissolved

oxygen content of no more sic than 55 parts per million

Currently the Class C criterion in Maine is 50 parts per

million ppm or 60 of saturation whichever is higher The 50

pm is to be achieved at all river flows equal to or greater than

the seven day mean low flow with a recurrence of one inten years

38 MRSA 464 4D This value is alSo known as the 7Q10 flow

The current Maine minimum is consistent with the EPA minimum

criterion for dissolved oxygen found in Ambient Water Quality

Criteria for Dissolved Oxygen April 1986 EPA 440586003

The EPA criteria document states that a minimum seven day mean

dissolved oxygen value of 50 is to be met at the 7Q10 flow in

order to protect the other life stages of the salmonids The

EPA criteria document goes on to say that a value of 65 ppm

dissolved oxygen as a 30 day average is necessary to protect the

other life stages This indicates that while low dissolved

oxygen values 50 ppm can be withstood for short periods of

time seven days to insure the long term survival of the adult

salmonids a higher longterm dissolved oxygen concentration is

required The EPA 30 day average dissolved oxygen criterion of

65ppm is to be met at flows at And above a 30 day low flow with

a recurrence of one inten years 30Q10 In some unregulated

streams a single short term minimum criterion will grant both

the necessary short and long term aquatic life protection due to

natural stream flow fluctuations above the 7Q10 However in many

unregulated streams and virtually all regulated streams both

shortterm and longterm average criteria are necessary in order

to afford adequate protection of the adult salmonids

The longterm average dissolved criterion of 55 ppm suggested in

LD 1019 is insufficient to protect the designated uses assigned

by the Legislature to Class C waters The value of 55 ppm is in

fact equal to EPAs longterm protection for the less sensitive

warmwater fish Class C waters have been designated as having XT°4

w4t

SAVE IT

PRINTED ON RECYCLED PAPiR

EPA004797
the quality necessary to protect all indigenous fish Maine law

at 38 MRSA 466 8 defines indigenous as supported in a reach of

water or known to have been supported according to historical

records compiled by the State and Federal agencies or published

scientific literature Salmonids are native to most all waters

of Maine The Maine Department of Inland Fisheries and Wildlife

DIFW is responsible for the determination of where salmonids

are not indigenous Where DIFW has determined after a scientific

evaluation that a waterbody can only support a warmwater fishery Maine may use lower dissolved oxygen criteria To date EPA

Region I has received no such showing by either DIFW or DEP that

any waterbody or segmentof a water body should be placed into

this lower protection category In fact the Maine DP insists

on the use of salmonids exclusively as the vertebrate toxicity

test organism for all fresh water discharges

In summary the 55 ppm dissolved oxygen 30 day average criterion

proposed in LD 1019 is not adequate to protect the designated

uses of Maine Class C waters and cannot be approved by EPA In

order to provide for the protection and propagation of salmonids

Maine must use a 30dayaverage of 65 ppm or higher If you

have any questions regarding this matter please contact me at

617 5653531 or Eric Hall of my staff at 617 5653531

ely

anfrecionia

rater Quality Branch

cc Tim Glidden OPLA

Gordon Becket USFWS

David Sabock EPA HQ

Tonia Bandrowicz ORC

EPA004798
011

14 hvc0

June 28 1999

UNITED sTATES ENVIRONMENTAL PROTECTION AG liNCY

REGION 1

JOHN F KENNEDY FEDERAL BUILDING

BOSTON MASSACHUSETTS 02203000i

Dennis A Purington Acting Director

Bureau of Land Water Quality

ME Dept ofEnvironmental Protection

State House Station 17

Augusta ME 043330017

Dear Mr Purington

Exhibit 11

OPRONAL FORM 99 10o

FAX TRANSMITTAL

qh21P 2

II pigat

Ta

Y4fr t4

cjAP D4

a0727 79 Fa I

47 7raY5

NS N 7540ot 3t7 Tan 509010 GeNERAL S EfIVIC ES ADIAINISTPAIIM

This letter is to acknowledge your June 21 1999 submittal of a complete and current effective

water quality standards WQS package for inclusion in the Clean Water Act WQS docket for

Maine As you are aware the Water Quality Standards WQS docket is necessary to support the

WQS program after EPA revises Its WQS rule in response to the Alaska court ruling Alaska

Clean Water Alliance v Clark No C961762 Tuly 8 1997 In conjunction With the rule

making process EPA will offer the public an opportunity to review the WQS docket We will

contact you if the public review or further review bY EPA identifies any ondssions or erroneous

inclusions that may need to be corrected

thank you for your assistande in creating the WQS docket Pleaie contaci me 6179181501 or

Bill Beckwith of my stRfF6179181 544 if you have anyquestions

Sincreiy

Linda Murphy Director r

Office of Ecosystem Protection

cc Fred Lcutner EPA SASD

Ronald Poltak NEIWPCC

Iniernat Addrods UFlp httpdAyynyppecpy

FifycloctrRacycii1314 4 firtnt4 With Vevstebio01 M14E4 Inks onFlocYc3ed P ape r Mclknum 271 Pt$taonsunwrl

EPA004799
Water Quality Criteria Bibliography Maine

Bureau of Land and Water Quality

Maine Department of Environinental Protection

June 16 1999 CORRECTED COPY 63099

NarnefTitle Citation e Date of last

amendment

Number

of Pages

Statutory Sections

Definitions 33 MRSA 361A July9 1998 2

Waiver or modification of protection and improvement

laws

33 MRSA 363D July 141994 1

Definitions 38 MRSA 410H Oct 9 1991 1

Program implementation 38 lvIRSA 410J June 30 1992 1

Waste discharge licenses 38 IvIRSA 413 July 9 1998 3

Conditions of licenses 38 MRSA 414A July 9 1998 5

Publicly owned treatmentworks 38 MRSA 414B July 9 1998 1

Color pollution control 33 NERSA 414C Sept 19 1997 2

Certain deposits and discharges prohibited 38 1V1RSA 417 July 14 1990 1

Log driving and storage 38 MRSA 418 July 9 1998 1

Protection of the lower Penobscot River 38 MRSA 418A July 13 1982 1

Prohibition on the use of tributyltin as an antifouling

agent

38 MRSA 419A March 29 1993 2

Certain deposits and discharges prohibited 38 MRSA 420 June 1 1 1999 5

Discharge of waste from watercraft 38 MRSA 423 June 30 1989 1

Discharge of waste from motor vehicles 38 MRSA 423A Sept 29 1987 1

Enforcement 38 MRSA 451 July 9 1998 1

Time schedule variances 38 MRSA 451A Oct 1 3 1993 3

Classification of Maine waters 38 MRSA 464 July 91998 11

Standards for classification of fresh surface waters 38 MRSA 465 July 14 1990 2

Standards for classification of lakes and ponds 33 MRSA 465A July 14 1990 1

Standards for classification estuarine and marine waters 38 MRSA 465B July 14 1990 2

Definitions 33 MRSA 466 July 14 1990 2

Classification of major river basins 33 MRSA 4G7 July 14 1994 15

Classification of minor drainages 33 MRSA 468 June 30 1992 4

Classification of marine waters 38 MRSA 469 June 24 1991 7

Approval criteria 38 MRSA 636 Sept 29 1995 2

As amended by An Act to Amend the Water Quality

Laws to Establish a New Standard for Mercury

Discharges

P11999 ch 500 June 11 1999 5

Amended by An Act to Amend Certain Laws

Administered by the Department of Environmental

Protection Bureau of Land and Water Quality

PL 1999 ch 243 September 18

1999

9

Amended by An Act to Reclassify Certain Waters of

the State

PL 1999 ch 277 September 18

1999

15

Rule Chapters

Administrative Regulations for Hydropowei Projects 06096 CMR 450

and 04061 CM 11

May 41996 13

Regulations Concerning the Use of Aquatic Pesticides

I

06096 CivER 514 May 4 1996 1

Environmental Regulation Surface Waters Taxies

Control Program

06096 5305 Aumce 13 1997 13

Discontinuance of Wastewater Treatment Lagoons 06096 CMR 550 1V1 4 1996 2

EPA004800
Stortnwater and Combined Sewer Overflows 06096 CMR 570 May 4 1996 1

Snow Dumps Exemption from Waste Discharge License 06096 CMR 573 May 4 1996 2

Regulations Relating to Water Quality Evaluations 06096 CMR 581 May 4 1996 2

Regulations Relating to Temperature 06096 CMR 582 May 4 1996 1

Identification of Fish Spawning Areas and Designation of

Salmonid Spawning Areas

06096 CMR 585

e

May 4 1996 2

et

Rules Pertaining to Class A Waters 06096 CMR 586 May 4 1996 2

Other

Letter from Yon H Edwards Assistant Attorney General

12990 supporting a statutory interpretation

Outside of statute or

regulation

NA 5

Not yet determined Enacted or amended by the First Regular Session of the 119th Legislature non

emergency provisions

EPA004801
Exhibit 12

st004

tt

Ard

N114 FRO

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 1

I CONGRESS STREET SUITE 1100

BOSTON MASSACHUSETTS 021142023

February 92004

Dawn Gallagher Commissioner

Maine Department of Environmental Protection

17 State House Station

Augusta Maine 043330017

SUBJECT EPA Review of Chapter 257 Water Quality Standard Revision

Dear Commissioner Gallagher

The Environmental Protection Ageney EPA has completed its review of Chapter 257

LD 1137 An Act Regarding Riverine Impoundments as required by 33 USC

1313c This legislative chapter revised the surface water quality standards administered

by the DEPs Bureau ofLand Water Quality and was certified by Maines Assistant

Attorney General in the Natural Resources Division on December 17 2003 as having

been duly adopted pursuant to state law passed by the Maine Legislature on May 20

2003 and signed into law by the Governor on May 23 2003 EPA is continuing its

review of Chapter 418 and the other Chapters from the Departments August 262003

submittal of legislation enacted by the First Regular Seision of the 121 Legislature

I hereby approve the revised water quality standards in Chapter 257 This approval is

madepursuant to Section 30302 of the Clean Water Act and 40 CFR Part 131 and is

based on my determination that the approved revisions are consistent with the

requirements ofSection 303 of the Act In making this approval we have a few

comments concerning Chapter 257 see attachment A

EPAs approval of Maines surface water standards revisions does not extend to waters

that are within Indian territories and lands EPA is taking no action to approve or

disapprove the States standards revisions with respect to those waters at this time EPA

will retain responsibility under Section 303d for those waters

My staff and I look forward to continued cooperation with the ME DEP in exercising our

shared responsibilityof implementing the water quality standard requirements under the

CWA If you have any questions on these issues please contact Steve Silva Director of

EPA New England Maine Program at 6179181561

VFree 18883127341

Internet Address URL httpwwwepagoviroglon1

RecleledReayelable Printed with Vegetable Oil Based inks on iltoyeled Paper Minimum 30 Posteonsumer

EPA004802
Sincerely

JM

Linda M Murphy Director

Office ofEcosystem Protection

Enclosures

cc Andrew Fisk ME DEP

David Courtemanch ME DEP

Brian Kavanah ME DEP

Dana Murch ME DEP

Vernon Lang USFWS

Mary Colligan NMFS

Peter Colossi NMFS

Edward Hanlon EPA HQ

2

EPA004803
Attachment A to February 9 2004 letter from EPA to MB DEP

Comments on Chapter 257

Chapter 257 An Act Regarding Rtverine Impoundments

EPA has reviewed Chapter 257 and would like to point out that the narrative standard in

the final paragraph is an important confirmation that the 2003 revisions are consistent

with the CWA dissolved oxygen concentration in existing riverine impoundments must

he sufficient to support existing and designated uses of these waters It is our

understanding that ME DEP intends to Monitor dissolved oxygen to within 05 in of the

bottom for the entire water column of any impoundment and that compliance with the

narrative criterion as set forth in the final paragraph of subsection 13 and quoted above

will still bedetermined throughout the waterbody including where compliance with the

numeric criteria is not measured as set forth in Subsections 13 B and Cto ensure that

the waterbody as a whole will attain existing and designated uses Application of the

narrative criterion for riverine impoundments below the point of thermal stratification

and M areas of inhibited mixing duo to natural topographical features is important to

aSsure that water quality impacts are assessed and addressed in determining whether

water quality standards are met in the iinpoundment as a whole

MdaAPY041EPA RilIVQ2003WQ8 rolowNEWQSApprovalLolder2 9 04wpd

3

EPA004804
PRO

April 142004

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 1

1 CONGRESS STREET SUITE 1100

BOSTON MASSACHUSETTS 021142023

Dawn Gallagher Commissioner

Maine Department of Environmental Protection

17 State House Station

Augusta Maine 043330017

SUBJECT EPA Review of Chapters 227 245 and 317 Water Quality Stundard

Revisions

Dear Commissioner Gallagher

The Environmental Protection Agency EPA has completed its review of Chapters 227

245 and 317 as required by 33 USC 1313e

Chapter Title

227 An Act to List Agriculture as a Designated Use inWater Quality Standards

245 An Aei to Amend Certain Laws Administered by the Department of Envirenriiental

Protection

317 An Act to Reclassify Certain Waters orthe Slate

These legislative chapters revised the surface water quality standards administered by the

Department of Environmental Protections DEPs Bureau of Land 64 Water Quality

and were certified by Maines Assistant Attorney General in the Natural Resources

Division on December 17 2003 as having been duly adopted pursuant to state law EPA

is continuing its review of Chapter 418 and the other chapters from the Departments

August 26 2003 submittal of legislation enacted by the First Regular Session of the 121

Legislature

First I thank you and your staff for an impressive effort with regard to the upgrading of

use classifications for numerous water body segments In many cases waters were

reclassified to Class AA or SA Maines most protective classifications for freshwater

and saltwater respectively These reclassifications will significantly strengthen Maines

ability to protect its waters and further progress towards achieving the objeetiyes of the

Clean Water Act CWA

Toll Free I103727341

Internet Address UHL httrdAvwwepagovire6ont

RecycledRecyclable Printed with Vegetable OH Rased Inks on Recycled Pam M Intmum CO Poslconeumer

EPA004805
I hereby approve the revised water quality standards in Chapters 227 and 317 Chapter

227 adds a designated use to Maines classifications and Chapter 317 upgrades the

classifications of numerous water segments This approval is made pursuant to Section

303e2 of the Clean Water At CWA and 40 CFR Part 131 and is based on my

determination that the approved revisions are consistent with the requirements of Section

303 of the Act In making this approval we have a few comments concerning Chapters

227 and 317 see attachment A

EPA is not taking action at this time on the water quality standards revision in Chapter

245 An Act to Amend Certain Laws Administered by the Department ofEnvironmental

Pratection Sec 738MRSA Sec 464 sub Sec 3 Paragraph B This revision changes

the frequency with which the Board will hold public hearings for the purpose of

reviewing Maines water quality standards and revising where appropriate from at least

once every three years to at least once every four years Federal regulations at 40 CFR

§13120 require the frequency of state water quality standards reviews and revisions as

necessary to be at least once every three years In his letter of December 17 2003

Maines Assistant Attorney General indicated that this change to a fouryear review

frequency in Section 7 of Chapter 245 appears to be in conflict with EPAs regulations

We understand based on verbal confirmation by DEP staff and the State of Maine

Legislature website that with the passage of LB 1655 the threeyear period of review in

381VIRSA Sec 464 sub §3 Paragraph B has recently been restored to ensure consistency

with the federal regulations As of March 16 2004 Chapter 551 LD 1655 was signed

by the Governor and will be effective 90 days after the end of the current legislative

session

EPAs approval of Maines surface water standards revisions does not extend to waters

that are within Indian territories and lands EPA is taking no action to approve or

disapprove the States standards revisions with respect to those waters at this time EPA

will retain responsibilityunder Section 303d for those waters

My staff and I look forward to continued cooperation with the ME DEP in exercising our

shared responsibilityof implementing the water quality standard requirements under the

CWA If you have any questions on these issues please contact Steve Silva Director of

EPA New England Maine Program at 6179181561

Sincerely

Linda

giA6 M Murphy Direc or

Office of Ecosystem Proteetion

Enclosure

EPA004806
co Androw Fisk ME DEP

David Courtemarich MB DEP

Brian Kavanalt ME DEP

Vernon Lang USFWS

Mary Col ligan NMYS

Peter Colossi NMFS

Edward Hanlon EPA HQ

EPA004807
Attachment A to April 14 2004 letter from EPA to MB DEP

Comments on Chapters for which Water Quality Standards Revisions are

Approved

1 Chapter 227 An Act to ListAgriculture as a Designated Use in Water Quality

Standards

Chapter 227 adds agriculture as a designated use to Maines freshwater use

classifications AA A B C OPA This revision is consistent with Section

303e2A of the Clean Water Act and 40 CFR §13110a which explicitly list

agriculture as a use that states are to consider when designating uses EPA would like to

point out that listing agriculture as a designated use in water quality standards sets the

goal that the water is to be of sufficient quality to support agricultural uses of that water

Any determination to allow the withdrawal of water for agriculture should only be made

after fUll consideration of the existing uses and other designated uses of the waterbody

the applicable physical chemical and biological criteria and Maines antidegradation

provisions For example ClassAA waters are defined as free flowing and natural and

are recognized by Maine as Outstanding National Resource Waters ONRW

2 Chapter 317 An Act to Reclassify Certain Waters ofthe State

Chapter 317 upgrades the use classification for numerous water body segments Those

revisions are consistent with the CWA because in all cases the waters designated use

goals continue to be consistent with the goal uses of the CWA at section 101a2 and

are upgraded to subcategories of those usesthat require more stringent criteria

Provisions in Chapter 317 Sec 638 MRSA §467 sub§4 A13 concerning license

limits for residual chlorine and bacteria are not water quality standards and therefore

are not subject to BPA action under Section 303c of the Act

JAdalaIFY041EPA RIWTQA2003WQS rotwANIBWQSApprovalLttier03414 04wpd

EPA004808
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 1

1 CONGRESS STREET SUITE 1100

BOSTON MASSACHUSETTS 021142023

January 25 2905

Dawn Gallagher Commissioner

Maine Department of Environmental Protection

It17 State House Station

Augusta Maine 043330017

SUBJECT EPA Review of 2004 submitted Water Quality Standard Revisions

Dear Commissioner Gallagher

This is in response to your May 142004 request forEnviromnental Proteetion Agency

EPA approval of statutory and regulatory amendments of the surface water quality

standards administered by the Maine Department of Environmental Protection DEP Bureau ofLand Water Quality These amendments wore certified by Maines

Assistant Attorney General in the Natural Resources Division as having been duly

adopted pursuant to State law EPA has completed its review of these amendments as

required by §503e of the Clean Water Act 33 USC §1313c J am pleased to

approve most of the changes as described flu titer below

I congratulate you and your staff for a very impressive effort particularly with regard to

the adoption of Chapter 579 of DEPs Rules Classification Attainment Evaluation Using

Biological Criteria forRivers and Streams Adoption of this rule is a noteworthy event in

DEPPs long history as a national leader in the development and implementation of

biological criteria This quantitative methodology for interpreting Maines narrative

biological criteria and aquatic life uses for rivers and streams will strengthen Maines

ability to protect its waters and killer progress towards achieving the goals and

objective of the Clean Water Act

Pursuant to §303c2 of the Clean Water Act and 40 CFR Part 131 and based on my

determination that the approved revisions are consistent vvith the requirements of §303 of

the Act I hereby approve the following revised standards

Legislative Chapter 418 specifically §420 14A C D amiE which

establishes mercury ambient water quality criteria to protect aquatic life and criteria

for human health protection based on a concentration in fish tissue that are consistent

with EPAs current Clean Water Act §304a criteria guidance

P Legislative Chapter 551 §6 which reverses an earlier change to statute and ensures

that a hearing win be held at least once every three years for the purpose of reviewing

Maines water quality standards and revising them as appropriate consistent with 40

CFR §13120

Toll Free 18083724341

Internet Address UAL htiplAyvwhopagovhetioni

RooyclocirRseyeTablo Prtritsd with Vegetabte OH Bassi Inks xi Inlaid Pon Minimum SOY Poslconsurnsi

EPA004809
Legislative Chapter 551 §7 which corrects an error with togard to the boundary

between freshwater and saltwater in the classification of the Dennys River

Legislative Chapter 574 which revises Class AA and Class A to allow discharges

intended to assist in the restoration of endangered Atlantic Salmon

legislative Chapter 663 which upgrades the use classification for numerous water

body segments In all oases both the previous and now use classifications provide for

the MI goal uses specified at §101a2 of the Clean Water Act

P PEP Rule Chapter 579 which provides a quantitative methodology for interpreting

Maines narrative biological criteria and aquatic life uses for rivers and streams

EPAs approval of Maines surface water quality standards revisions does not extend to

waters that are within Indian territories and lands EPA is taking no action to approve or

disapprove the States standards revisions with respect to those waters at this time EPA

will retain responsibility under §303o and 303d of the Clean Water Act for those

waters The revisions summarized above are further described in Summary Changes to

Maines Water Quality Criteria MB DEP May 13 2004 In making this approval we

have a few comments concerning Chapters 418 and 574 sere attachment A

Also please note the following

Legislative Chapter 418 §420 1BB We are still evaluating this provision to

determine whether it constitutes a revision ofMaines water quality standards

therefore we are not yet taking aotion with respect to this provision

b Finally we have determined that the remaining provisions of Chapter 551 and the

additional Chapters submitted by DEP are not new or revised water quality standards

and therefore are not subject to EPA review and action under §303e of the Clean

Water Act see Attachment B

My staff and I look forward to continued cooperation with the ME DEP in exorcising our

shared responsibility of implementing the water quality standards requirements under the

Clean Water Act If you have any questions on these issues please do not hesitate to call

me at 6179181501 or contact Steve Silva Director ofEPA New Englands Water

Quality and Maine Programs at 6179181561

Sincerely

Linda M Murphy Director

Office of Ecosystem Protection

Mu4471fri

a

2

EPA004810
Enclosure

co Andrew Fisk ME DEP

David Courtematioh MB DBP

Brian Kavanali ME DBP

Vernon Lang USFWS

Mary Colligan NMFS

Peter Colosi NMFS

Dana Thomas BPA WQSB

3

EPA004811
Attachment A to January 25 2005 Maine Water Quality Standards Approval Letter

14 Chapter418 An Act to Implement the Recommendations of the Department of

Environmental Protection on Ambient Water Quality Criteria for Mercury

EPA is approving Chapter 418 Section 3s enactment of 38 MRSA §420l 13A C D and By We are continuing to evaluate §4201BB to determine whether it

constitutes a revision of Maines water quality standards therefore we are not yet taking

action with respect to this provision

Subsection143A establishes the following ambient water quality criteria for mercury

Freshwater Freshwater Saltwater Saltwater Human

Acute Chronic Acute Chronic Health

Total 17 ughl 091 ugh l 21 net 1110 oa rnekg

Mercury edible

tissue

The aquatic life criteria expressed as total mercury are equivalent to EPAs current CWA

§304a recommendations for dissolved mercury as contained in National Recommended

Water Quality Criteria 2002 EPA822R02047 November 2002 Maines aquatic life

criteria are as protective as EPAs recorsunendations however EPAs 1995 Updates

Water Quality Criteria Documents for the Protection of Aquatic Life in Ambient Water

EPA820B96001 September 1996 contain a note that the freshwater mercury chronic

criterion might not adequately protect rainbow trout coho salmon and bluegill While

EPA expects that water quality based control of mercury in Maine will typically be

driven by the human health criterion this caution concerning aquatic life protection

should be considered if the chronic freshwater criterion is applied absent more stringent

actions to meet the human health criterion

EPA also believes that Maines tissue based human health criterion is as protective as

EPAs tissue based criterion recommendation of 03 rriWkg for methyltnercury published

on January 82001 66 FR 13441359 Maines value is one third lower than EPAs

and is expressed in terms of total mercury while inethylmeroury and total mercury in

tissue are essentially equivalent in upper trophio level fish Maines expression of its

criterion as total mercury provides equal or greater protection

Subsection1B Cprovides for the establishment ofsitespecific bloaccumulation

factors for imam+ which is consistent with EPAs allowance for modification of its

§304a guidance to reflect sitespecific conditions at 40 CFR § 13111b1ii

Subsection1B 03 directs ME DEP to establish a statewide bioaecumulaion factor

BAF which is protective of95 of the waters of the stale In approving this

provision EPA understands this statement was meant to allow use of either 1 the 95th

4

EPA004812
upper confidence level on a single mean point estimate of a BAF if a singleBAP is

appropriate for the state or 2 the 95 percentile of BAFs to protect 95 of the waters if

BAFs vary with waters with the section regarding sitespecific BAFs providing for a

higher BAP if appropriate to protect specific waters May 21 2004 response from DEP

to EPA questions seeking clarification BPA believes this approach is consistent with

established methodologies used to develop criteria and allows Maine to be appropriately

protective of all of its waters

Subsection113E directs DEP to establish statewide ambient water quality oriteria for

mercury to protect wildlife which EPA supports consistent with the goals of the CWA

Section 1 of Chapter 418 which enacts 38 MRSA § 413 sub§11 relates to NPDES

permitting and is not considered to be a water quality standard subject to EPA review and

action under § 303e of the CWA DEP in its May21 2004 response to EPAs

questions seeking ciarifiention of Chapter 418 clarified that references to antidegradation

requirements highlight important antidegradation considerations and do not override or

conflict with the antidegradation provisions at 38 MRSA § 4644F

2 Chapter 574 An Act to Amend Water Quality Laws to Aid in Wild Salmon

Restoration

Chapter 574 revises Maines Class AA and Class A provisions to allow discharges

intended to assist in the restoration of endangered Atlantic Salmon Waters classified as

AA in Maine are considered outstanding national resources and water quality is to be

maintained and protected 38 MRSA § 4644F2 We interpret maintained and

protected to mean no new or increased discharges to Outstanding National Resource

Waters ONRWs and their tributaries that would lower water quality with some

exception for limited activities that result in temporary and shortterm changes in water

quality Water Quality Standards Handbook Second Edition EPA8231394005a

August 1994 However the discharges that could be authorized by DEP based on

Chapter 574 must be for the express purpose of assisting in the restoration of endangered

Atlantic salmon by restoring water quality that has been degraded by arithropogenic

activity The Chapter 574 discharge provision is not an authorization to lower water

quality in ONRWs Further EPA believes that the Intent to restore natural ambient water

chemistry to ahl in the restoration of endangered salmon is consistent with the overall

objective of the CWA at 101a Therefore EPA is approving this limited discharge

provision

5

EPA004813
Attachment B to January 252005 Maine Water Quality Standards Approval Letter

Except as noted in the attached letter chapters listed below in the first column in bold are

acted upon within this letter Chapters listed in regular text and sections not included in

the chapters listed in bold are not now or revised water quality standards and therefore

are not subject to EPA review and action under § 303e of the Clean Water Act

91 1iiiA° iox iilogiltiiiirecliiwc20etgfircP10 $ goikm = itten

f17 N ntiS771A1241AiftIgt4112 1ef 4 ffiftleailttiwl

Ch 410 LA 1308 An Act to Irriplement the Recommendations of the 61501 Statute

1 3 DePaftment ofBrwlionmentalProteotion on Ambient Water Quality

Criteria for Mercury

Ch 551 LD 105 An Act to Amend Laws Relating to gnvironmental 73004 Statute

§ 6 I Protection

Ch 574 LA 1833 An Act to Amend Water Quality Laws to Aid in Wild 73004 Statute

Atlantic Salmon Restoration

Ch 650 LI 1158 An Act to Protect Maines Coastal Water 73004 Stanite

Ch 663 LA 1891 An Act to Reclassify Certain Downcast Waters 713004 Statute

Cit 232 LA 1477 An Act to Amend Certain Laws Regarding Land and Water 92101 Statute

Quality Pretedon enacts provision concerning cooling water intake

structure clarification of definiti n for publicly ovmal treatment work1

iiMil51cli WACCOAXNPiZtilknliett4eViktiYCYVkIRZlilgiVe M1Q0iAt014`

Ch 519 Interim Effluent Limitations and Contiols for the Discharge Of Mercury 10612001 Rule

anintdcd

CitV9 Classification Attainment ilvaluation Using Biological Criteria for 5272003 Rule

Rivers and Streams

JMa I aVY03tEPA RItWOWQS approvatAMBWQ5Approvletier012$03wpd

6

EPA004814
Exhibit 13

mmt

UNITED STATES EWIRONMENTAI PROTECTION AGENCY

sEvotil

1 F KENREDY F1=JEFLAI BoST04 IJASS10LI5E1TS 022032211

DATE July 20 1993

SUBJ Penobscots Treatment as a State under cWA 5 5180

for Purposes of Receiving CWA 5 106 Grant

FROM Julie Taylor Chief General Law OfficeLA

TO Harley F Laing Regional Counsel

I SUMMARY

The Penobscot Nation the Penobscots or the Tribe has applied to

EPA for Treatment as a State TAS status under § 518e of the

clean Water Act CWA also known as the Federal Water Pollution

Control Act 33 USC 5 1377e The Tribe seeks to receive

grant funds under 5 106 of the CWA to develop a water quality

management plan for the Tribes water resources in Maine

I have concluded that the Penobscots should receive approval of a

limited TAS status that would allow them to receive the 5 106

grant This conclusion is based on my review of the standards

for granting TAS status as well as the following the Maine

Indian Claims Settlement Act both federal and state Acts

legislative history EPA statutes regulations and guidance US and Maine Supreme Court cases interpreting Indian

jurisdictional issues legal opinions by the Penobscots legal

counsel and submissions by the Penobscots on its legal governing

provisions resources program correspondence previous grants

and other materials

The TAS status for the Penobscots should be limited to the water

quality CWA 5 106 grant purposes and to the water resources over

which the Tribe exercises management and protection functions for

purposes of the grant activities It is necessary to note these

limitations because of jurisdictional issues presented on the

scope of the Penobscots authority to regulate land and natural

resources on and near the Penobscot Indian Reservation these

issues are discussed below in the jurisdiction section These

limitations do not result in a lesser TAS determination for 5 106

purposes they are intended instead to clarify that determination

of this TAS status does not extend beyond this grant and that any

future applications by the Penobscots for EPA grants or approval

authority may be subject to additional jurisdictional analysis

because of the special jurisdictional issues noted below

I nevertheless recommend that the Penobscot Nation be granted

Treatment as a State status under CWA 5 518e for the purposes

of receiving and administering a CWA 5 106 grant I believe tha

Penobscots have satisfied the statutory requirements of CWA

5 518 33 USC Section 1377 and the regulatory requirements of

40 Code of Federal Regulations CFR Part 120

28

EPA004815
2

II TAS REOUIREMENTs

There are four criteria for approval of treatment as a state

TAS status The first three are that the Tribe possesses the

requisite three elements under CWA § 518e of governmental

authority jurisdiction over the resources affected by the

statute or program and capability The fourth criteria is that

the Tribe meets the requirement of being a federally recognized

tribe pursuant to CWA § 518h2

EPA regulations reiterate these requirements 40 CFR 5 1306d

The preamble to the regulations explains how these requirements

nay be met by a Tribe providing the following in its application

1 Governmental Authority A narrative statement 1

describing the form of Tribal government 2 describing the

types of essential governmental functions currently performed

and 3 identifying the sources of authorities to perform those

functions eg Tribal constitutions codes etc Indian

Tribes Water Quality Planning and Management 40 CFR parts 35

and 130 Interim Final Rule 54 Fed Reg 14354 24355 April

11 1969 EPA believes that most Tribes will be able to meet

this criterion without much difficulty Id

2 Jurisdiction A statement signed by the Tribal Attorney

General or an equivalent official explaining the legal basis for

the Tribes regulatory authority over its water resources Id

After this statement is received the Region notifies all

appropriate governmental entities as to the substance of the

statement 40 CFR§ 13015b

3 Capability Neither the regulation nor the preamble

identifies any specific showings a Tribe must make in order to

meet the capability requirement but the preamble notes five

factors that EPA may consider although EPA is not limited to

these five 1 The Tribes previous managerial experience 2 existing environmental or public health programs 3

existing or proposed staff resources and continuity of staff 4

the Tribes accounting and procurement systems and 5 the

mechanisms in place or available for carrying out the executive

legislative and judicial functions of the Tribal government

Preamble to Indian Tribes Water Quality Planning and Management

Interim Final Rule 54 Fed Regis at 14356 41189

4 Recognized Tribe Some documentation that the Tribe is

recognized by the Secretary of the Interior Id This

requirement can ordinarily be met by showing the Tribal

applicants inclusion on a list of Federally recognized Tribes

published by the Secretary of the Interior Id

29

EPA004816
3

III ANALYSIS

An analysis of the statutory elements follows

A Governmental Authority The Tribe has a coverninc body

carrvinc out substantial covenmental duties and mowers

The Penobscot Nation hes the powers and authorities that permit

the Tribe to act as its own governing body

The Penobscots governing body includes an elected Trbal

Gcniernor Lieutenant Governor and Tribal Council The Governor

and Council are responsible to all Tribal members= and represent

their interests in all areas Of concern The Tribal Governor and

Council are responsible for protecting the rights of the

Penobscot Nation for conducting all Tribal affairs and managing

all Tribal resources and programs and for carrying out the

Tribal laws and mandates of the Tribal General Meeting There

are Rules of Council which function like bylaws for the Tribal

Council Both the Federal and State Maine Indian Claims

Settlement Acts provide that the Governor and Council are the

governing agents for the Penobscot Nation See 25 USC

55 1721a3 1722k and 1726 30 Maine Revised Statutes

Annotated SA 55 620310 6206

The Penobscots also elect a Representative to the Maine State

Legislature who has seating and speaking privileges but no vote

The elections for Tribal Governor Lieutenant Governor and

Representative are lield every two years The Council has twelve

members elected for fouryear terms

The Penobscot Judicial System has been in existence since 1979

This system consists of the Penobscot Tribal Court which is in

regular session every other Wednesday of each month the Special

Tribal Court which schedules sessions as they are needed and the

Appellate Panel which convenes whenever an appeal from decision

of the Tribal Court is filed The Penobscot Judicial System

exercises exclusive jurisdiction separate and distinct from the

State of Maine over several areas This jurisdiction is both

provided for and limited by the Maine Indian Claims Settlement

Act and is discussed in more detail below in the jurisdiction

section

I conclude that the Penobscots have made the requisite showing of

governmental authority

ICWA § 518e1 33 USC § 1377e1 40 CFR 51306d1

2

The 1987 Tribal census noted 1852 members

30

EPA004817
11

4

B gurisdiction over Tribal Water Psouces The functions to

be exercised by the Indian tribe nertain to the nanaCenent

and protection of water resources which are held by an

Indian tribe or otherwise within the borders of an

Indian reservation

This section discusses the special jurisdictional analysis

required for the Penobscots in light of the Maine Indian Claim

Settlement Acts issues about the physical boundaries of the

Reservation and the provisions of the Cooperative Agreement

between Maine and the Penobscots after noting a few general

principles of law regarding jurisdiction over lands and natural

resources within Indian territories

1 cwA 5 106 Purposes

The determination of whether the Penobscots are eligible for

treatment asstate status under a Clean Water Act 5 106 grant

should focus on jurisdiction over resources relevant to the

purposes of the 106 grant Section 5 518e authorizes EPA to

treat an Indian tribe as a State for purposes of Subchapter II

grants for construction of treatnent works and sections

1256 5 106 arants of this title to the degree necessary to

carry out the objectives of this section 518 but only if the

Tribe meets the TAS criteria Section 106 authorizes grants to

States to develop and implement programs to control surface water

pollution and protect groundwater

EPA has a statutory obligation to determine that a Tribe

exercises management and protection functions over a water

resource before treating the Tribe as a State for purposes of

that water resource Preamble to Indian Tribes Water Quality

Planning and Management 54 Fed Reg 14354 14355 Section

518e2 of the Clean Water Act states that a Tribe may be

treated as a State only if the functions to be exercised by the

Tribe pertain to the management and protection of water resources

within the borders of an Indian reservation

2 general law on Indian iurisdiction

Indian Tribes are not subject to State law except in very limited

circumstances California v Cabazon sand of Mission Indians

3CWA 5 518e2 33 USC 5 1377e2 40 CFR 51306d2

For grants to States and to interstate agencies to assist

then in administering programs for the prevention reduction and

eliniration of pollution including enforcement directly or through

appropriate State law enforcement officers or agencies 33 USC

5 1256

31

EPA004818
5

480 US 202 216 and n18 1987 In general Indian tribes are

sovereign governments whose authority is subject only to

Congressional approval See Worcester V Georcia 31 US 10

Pet 515 1832 Federal statutes which might arguably abridge

Tribal powers of selfgovernment must be construed narrowly in

favor of retaining Tribal rights See Felix Cohen Handbook of

Federal Indian Law 244 1982 Under the Montana test tribes

may regulate activities on Indian territory including activities

of non Indians where activities directly threaten the health and

safety of the Tribe Montana v US 450 US 544 565 1981

A 1993 US Supreme Court decision on Indian jurisdiction noted

two principles about Tribal authority to regulate activities on a

reservation 1 Tribes generally lack authority over non

Indians who own lands in fee that are within the boundaries of a

reservations but 2 Tribes may nevertheless retain authority to

regulate conduct within reservation boundaries that threatens

or has some direct effect on the political integrity the

economic security or the health or welfare of the tribe

South Dakota v Bourland Slip bp at 15 US Supreme court No

912051 June 14 1993 quoting Montana 450 US at 56566

3 Jurisdiction under the Maine Indian claims Settlement Acts

There is both Federal and State legislation that has profound

irpacts on the relative jurisdictional authorities of the State

of Maine and the Penobscot Nation over the Penobscot Indian

Reservation and the Penobscot Indian Territory

The Maine Indian Clkims Settlement Act also known as the Maine

Implementing Act was passed in 1979 30 Maine Revised statutes

Annotated SA 55 62016214 the State Act The State Act was

ratified by the federal Maine Indian Claims Settlement Act of

1980 25 USC SS 17211735 the Federal Act The Acts settled

the litigations filed by the Penobscots and other Maine Tribes

These Acts present unique issues for EPA Region 1 in evaluating

jurisdiction6 Most other Tribes around the country do not face

sUnder 25 USC 5 1724 the Penobscot Nation and the

Passamaquoddy Tribe received $135 million each to be held and

invested for the Tribes by the Department of Interior and $266

million each for a land acquisition fund the Houlton Band of

Maliseet Indians received $900000 for land acquisition

There are however other New England states and tribes

affected by settlement act legislation besides Maine and the

Penobscots Rhode Island Narragansett Massachusetts

Wampanoag Connecticut Pequot and Maine Passamaquoddy

Micmac and Moulton Band of Maliseet See 25 USC SS 17011771

et sea

32

EPA004819
6

similar limitations from state Indian claims settlement acts7

3a The Federal Maine Indian Claims settlement Act of 1980

The 1580 Federal Act referring to the State Act declares as its

purposes

1 To remove the cloud on the titles to land in the State

of Maine resulting from Indian claims

2 To clarify the status of other land and natpral resources in the State of Maine

3 To ratify the Maine Implementing Act the State Act

which defines the relationship between the State of Maine

and the Passamaquoddy Tribe and the Penobscot Nation and

4 To confirm that all other Indians Indian nations and

tribes and bands of Indians now or hereafter existing or

recognized in the State of Maine are and shall be subject to

all laws of the State of Maine as provided herein1

25 USC § 1721b

The Federal Act defines the laws of the State for purposes of the

Act to include enactments of political subdivisions such as

towns and future amendments and judicial opinions

laws of the State means the constitution and all

statutes reglUations and common laws of the State of Maine

and its political subdivisions and all subsequent amendments

thereto or judicial interpretations thereof

25 USC § 1722d

7There are a few non New England states with Indian land claims

legislation but the claims and settlements in New York and South

Carolina for example differ significantly from those in Maine for

various reasons See Vollmann A Survey of Eastern Indian Land

Claims 19701979 31 Maine Law Review 5 12 1580

The Acts mainly address the Penobscots and the Passamaquoddy

The Federal Act under 25 USC § 1725 provides that all Indians

other than the Penobscot Nation and Passamaquoddy Tribe shall be

subject to civil criminal jurisdiction of the state to same

extent as any other person except for the provisions under

§ 1727eand § 1724d 4 concerning the Moulton Band of Maliseet

Indians that are not relevant to the issues in this memo Under

the State Act the Moulton Band of Maliseet Indians in Maine is

wholly subject to the laws of the State 30 MRSA § 6202

33

EPA004820
7

The critical jurisdictional section of the Federal Act is 5 1725

which ratifies the State Act limits the application of federal

Indian law in Maine if it would affect State law and bars the

application of future federal Indian law in Maine unless the

federal legislation specifically notes its applicability in

Maine

The subsection of 5 1725 of the Federal Act that ratifies the

State Act provides that the Penobscots are subject to state

jurisdiction to the extent and in the manner provided in the

State Act

The Passamaquoddy Tribe the Penobscot Nation and their

members and the land and natural resources owned by or

held in trust for the benefit of the tribe nation or their

members shall be subject to the jurisdiction of the State

of Maine to the extent and in the manner provided in the

Maine Implementing Act the State Act and that Act is

hereby approved ratified and confirmed

25 USC 5 1725b1 This subsection notes the States

jurisdiction over the Tribe A second subsection takes the other

angle on jurisdiction and ratifies the State Acts provisions for

separate Tribal jurisdiction The Passamacuoddy Tribe and the

Penobscot Nation are hereby authorized to exercise jurisdiction

separate and distinct from the civil and criminal jurisdiction of

the State of Maine to the extent authorized by the Maine

Implementing Act the State Act and any subsequent amendments

thereto 25 USC 5 1725f

Subsection 1725h is a critical provision of the Federal Act

that explicitly and completely prohibits the application to the

Pencbscots of any federal law that 1 aives special status to

the Tribe and 2 affects or preempts Maines civil criminal

or reculatorv lurisdiction 25 USC 5 1725h This provision

sbecificallv includes state environmental law and land use law

Except as otherwise provided in this subchapter the laws

and regulations of the United States which are generally

applicable to Indians Indian nations or tribes or bands of

Indians or to lands owned by or held in trust for Indians

Indian nations or tribes or bands of Indians shall be

applicable in the State of Maine except that no law or

regulation of the United States 1 which accords or relates

to a special status or right of or to any Indian Indian

nation tribe or band of Indians Indian lands Indian

reservations Indian country Indian territory or land held

in trust for Indians and also 2 which affects or preempts

the civil criminal or regulatory jurisdiction of the State

of Maine including without limitation laws of the State

relating to land use or environmental matters shall apply

within the State

34

EPA004821
8

25 USC 5 1725h This subsection would seem to invalidate

federal laws that might give the Penobscots special status

including treatment as a state for certain environmental

programs or purposes if it would affect or preempt the States

authority including the States jurisdiction over environmental

and land use matters

The final critical provision of the 1980 Federal Act for

jurisdictional analysis relates to future legislation Future

federal legislation for the benefit of Indians that would affect

or preempt state laws including the State Act wotld not apply

in Maine unless the federal legislation specifically addressed

its application in Maine

The provisions of any federal law enacted after October 10

1980 for the benefit of Indians Indian nations or tribes

or bands of Indians whiCh would affect or preempt the

application of the laws of the State of Maine including

application of the laws of the State to lands owned by or

held in trust for Indians or Indian nations tribes or

bands of Indians as provided in this subchapter and the

Maine Implementing Act the State Act shall not apply

within the State of Maine unless such provision of such

subsequently enacted Federal law is specifically made

applicable within the State of Maine

25 USC 5 1735b Thus any post 1980 special federal

legislative provisions that might give Indians special

jurisdictional authority if for example any federal laws in

the 1980s provided authority for EPA approval of a Tribal

environmental program equivalent to a state environmental program

delegated by EPA to the state could not provide the Penobscots

with such jurisdictional authority unless the federal legislation

specifically addressed Maine and made the legislation applicable

within Maine

Finally the Federal Act provides that in a conflict of

interpretation between the provisions of the State and Federal

Acts the Federal Act would govern 25 USC 5 1725a The

Federal Act also consents to the amendment of the State Act at 25

USC 5 1725e1 but State legislative history discussed

below attempts to limit the amendment process b The state Indian Claims settlement Act Imolementino Act

The 1979 State Act addresses the scope of jurisdictional

authority of the Penobscot Nation in several sections Under 5

6206 of the State Act the Penobscots have within their

Territory all the authority of and all the limitations of a

municipality under Maine law except as otherwise provided in the

Act but internal tribal matters are not subject to regulation

by the State

35

EPA004822
9

1 General Powers Except as otherwise provided in this

Act the Passamaquoddy Tribe and the Penobscot Nation

within their respective Indian territories shall have

exercise and enjoy all the rights privileges powers and

immunities including but without limitation the power to

enact ordinances and collect taxes and shall be subject to

all the duties obligations liabilities and limitations of

a municipality of and subject to the laws of the State

prOvided however that internal tribal matters including

membership in the respective tribe or nation the right to

reside within the respective Indian territories tribal

organization tribal government tribal elections and the

use or disposition of settlement fund income shall not be

subject to regulation by the State The Passamaquoddy Tribe

and the Penobscot Nation shall designate such officers and

officials as are necessary to implement and administer those

laws of the State applicable to the respective Indian

territories and the residents thereof

30 MRSA S 62061 Note that the Tribes general powers of a

municipality are not limited to those enumerated but also that

this general powers section is limited by the initial clause of

except ES otherwise provided in the Act

A second key jurisdictional subsection of S 6206 of the State Act

provides that the Penobscots have exclusive jurisdiction over

members of the Tribe who violate Tribal ordinances but the State

has exclusive jurisdiction over nonTribal members who violate

Tribal ordinances on the Reservation and the State may assume

exclusive jurisdiction over Tribal members for such violations if

the Tribe chooses not to exercise the Tribes exclusive

jurisdiction

3 Ordinances The PassamaquoddyTribe and the Penobscot

Nation each shall have the right to exercise exclusive

jurisdiction within its respective Indian territory over

violations by members of either tribe or nation of tribal

ordinances adopted pursuant to this section 6206 or

section 6207 The decision to exercise or terminate the

jurisdiction authorized by this section shall be made by

each tribal governing body Should either tribe or nation

choose not to exercise or to terminate its exercise of

jurisdiction as authorized by this section or section 6207

the State shall have exclusive jurisdiction over violations

of tribal ordinances by members of either tribe or nation

within the Indian territory of that tribe or nation The

State shall have exclusive jurisdiction over violations of

tribal ordinances by persons not members of either tribe or

7The rest of the subsection concerns rights to vote and receive

services

36

EPA004823
10

nation

30 MRSA § 62063

These two subsections 62061 and 3 of the State Act allow the

Penobscots the jurisdiction to enact environmental ordinances to

the same extent as a municipality They also limit the

Penobscots jurisdiction relative to the States to the same

extent that a Maine municipality would be limited by the States

powers Municipalities in Maine may not act where state law has

preempted the field See Schwanda v Bonney 418 A2d 163 Me

1280 The Penobscots could however exercise exclusive

jurisdiction under S 62101 to enforce whatever environmental

ordinances it had the authority to enact under S 62061

4 Jurisdiction to Enforce Certain Civil Criminal Juvenile

and Other Laws and Ordinances

Under § 62091 of the State Act the Penobscots haveexclusive

jurisdiction separate and distinct from the State over certain

criminal and civil offenses and family matters as follows

a Lesser criminal offenses committed on the Reservation

by and against Tribal members1°

b Juvenile crimes equivalent to a

c Civil actions between Tribal members arising on the

reservation that are small claims under state law and civil

actions against Tribal members involving conduct of a Tribal

member on a reservation

d Indian child custody proceedings as authorized by

federal law and

e Other domestic relations matters of marriage divorce

and support between Tribal members who live on the

reservation

30 MRSA S 62091 This section could theoretically provide the

Tribe jurisdiction over some minor violations of environmental

laws or ordinances If the Tribe chooses not to exercise this

jurisdiction the State has exclusive jurisdiction over these

matters Id The State has exclusive jurisdiction over all

other state criminal laws within the Reservation Id See also

25 USC 55 13011303 and 25 USC 51725c criminal

jurisdiction on Indian reservations

ntut see 30 MRSA 5 620934 regarding State jurisdiction

over lesser criminal offenses and double jeopardy in State courts

37

EPA004824
11

The State Indian Claims Settlement Act also addresses law

enforcement in Penobscot Territory which could include

environmental enforcement Under § 62101 the Penobscots have

exclusive authority to enforce Tribal ordinances adopted under

5 6206 municipal and internal tribal matters powers and § 6207

fishing and hunting powers within the Penobscot Territory

They also have exclusive authority under 5 62101 to enforce

within the Reservation the criminal civil and domestic powers

they have under § 62091 But the State has enforcement

authority as well under 5 62102 State and county law

epforcenent officers have joint authority with the penobscots to

enforce all State laws other than those over which the Tribe has

exclusive jurisdiction under 5 62101 and to enforce Tribal

State Commission regulations

5 bunting and Fishina 7urisdiction under the Acts

because the State Acts hunting and fishing provisions under

5 6207 give jurisdiction over some matters to the Penobscots and

over others to the State that may relate to jurisdiction over

certain environmental matters for purposes of EPA jurisdictional

analysis I include the hunting and fishing jurisdiction

provisions here

The Tribe has exclusive authority under § 62071 within the

Penobscot Territory to enact ordinances regulating a Hunting

trapping or other taking or wildlife and b Taking of fish on

any pond in which all the shoreline and all submerged lands are

wholly within Indian territory and which is less than 10 acres in

surface area 30 MRSA 5 62071 In addition the Penobscot

Nation subject to the limitations of subsection 6 may exercise

within their respective Indian territories all the rights

incident to ownership of land under the laws of the State 30

MRSA § 62071

Subsection 62072 provides for State jurisdiction over the

Penobscot Territory in the requirement that the Tribe maintain

registration stations for bear moose and other wildlife killed

in the Territory in substantially the sane manner as such

wildlife are required to be registered under the laws of the

State This subsection applies to Tribal members as well as

non Tribal members and the Tribe is to report to the State when

and as the state Commissioner of Inland Fisheries and Wildlife

deems appropriate 30 MRSA § 62072

Subject to the limitations of subsection 6 the Maine Indian

Tribal State Commission established pursuant to § 6212 of the

State Act shall have exclusive authority to promulgate fishing

rules or regulations for ponds where at least half the shoreline

This Commission is discussed below in the hunting section

38

EPA004825
I

12

is in Indian Territory sections of a river both sides of which

are within Indian territory and sections of a river one side c=

which is within Indian territory for a continuous length of a

half mile or more 30 MRSA § 62073

Subsection 62076 provides for jurisdiction within Penobscot

Territory by the State through the State Commissioner of Inland

Fisheries and Wildlife State Commissioner who can conduct fish

and wildlife surveys within the Territory to the same extent he

can in other areas of the State More significantly the State

Commissioner can order enforcement of state laws rescind any

Tribal ordinance if be finds that such Tribal ordinance is

causing a significant depletion of fish or wildlife stocks on

lands or waters outside the boundaries of lands or waters subject

to the jurisdiction of the Tribe

The specific provision of 5 62076 of the State Act that allows

the state to rescind Tribal ordinances and order enforcement of

State laws within Penobscot Territory is lengthy

The Commissioner of Inland Fisheries and Wildlife or his

successor shall be entitled to conduct fish and wildlife

surveys within the Indian territories and on waters subject

to the jurisdiction of the TribalState commission to the

same extent as he is authorized to do so in other areas of

the State Before conducting any such survey the

commissioner shall provide reasonable advance notice to the

respective tribe or nation and afford it a reasonable

opportunity to participate in such survey If the

commissioner at any time has reasonable grounds to believe

that a tribal ordinance or TribalState commission

regulation adopted under this section 6207 or the absence

of such a tribal ordinance or commission regulation is

adversely affecting or is likely to adversely affect the

stock of any fish or wildlife on lands or waters outside the

boundaries of land or waters subject to regulation by the

TribalState commission the Passamaquoddy Tribe or the

Penobscot Nation he shall inform the governing body of the

tribe of nation or the commission as is appropriate of his

opinion and attempt to develop appropriate remedial

standards in consultation with the tribe or nation or the

commission If such efforts fail he may call a public

hearing to investigate the matter further Any such hearing

shall be conducted in a manner consistent with the laws of

the State applicable to adjudicative hearings If after

hearing the commissioner determines that any such

ordinance rule or regulation or the absence of an

ordinance rule or regulation is causing or there is a

reasonable likelihood that it will cause a Significant

depletion of fish or wildlife stocks on lands or waters

outside the boundaries of lands or water subject to

regulation by the Passamaquoddy Tribe the Penobscot Nation

39

EPA004826
13

or the Tribal State commission he may adopt appropriate

remedial measures including rescission of any such

ordinance rule or regulation and in lieu thereof order

the enforcement of the generally applicable laws or

regulations of the State In adopting any remedial measures

the commission shall utilize the least restrictive means

possible to prevent a substantial diminution of the stocks

in question and shall take into consideration the effect

that non Indian practices on non Indian lands or waters are

having on such stocks In no event shall such remedial

measure be more restrictive than those which the

commissioner could impose if the area in question was not

within Indian territory or waters subject to TribalState

commission regulation In any administrative proceeding

under this section the burden of proof shall be on the

commissioner The decision of the commissioner may be

appealed in the manner provided by the laws of the State for

judicial review of administrative action and shall be

sustained only if supported by substantial evidence

30 MRSA 5 62076

The Maine Indian TribalState Commission which has certain

regulatory jurisdiction overhunting and fishing matters as noted

above is established by S 6212 of the State Act The Commission

has four State members four Tribal members and an additional

chair who is elected by the other members One of the Tribal

State Commission responsibilities is to review the effectiveness

of this Act and the social economic and legal relationship

between the Penobscots and the State and make recommendations as

it deems appropriate 30 MSRA 562123

6 necislative History on JurisdiCtion

Legislative history of the State Act indicates that the Act was

intended to limit the jurisdiction of Indians in Maine including

the Penobscbts although it notes some exceptions

The state legislative Committee report states

It is the understanding and intent of the Committee that

this bill the State Act establishes the basic principle of

full state jurisdiction over Indian lands within the State

including Indian Territory or Reservations The bill

provides specific exceptions to this principle in

recognition of traditional Indian practices and the federal

relationship to Indians

The Report of the Maine Joint Select Committee on Indian Land

Claims at 1

40

EPA004827
15

Even on reservations state laws may be applied unless

such application would interfere with reservation self

government or would impair a right granted or reserved by

federal law

Penobscot Nation v Stilsohen 461 A2d 478 483 Me 1983

appeal dismissed 464 US 923 quoting Mescalero Apache Tribe v

Jones 411 US 145 148 1975

The Court looked to the legislative history of the State and

Federal Acts and noted that it was generally agreed that the

atts set UD a relationship between the tribes the state and the

federal oovernment different from the relationship of Indians in

other states to the state and federal oovernments 461 A2d at

469 emphasis added

In the Stiltthen Courts view even the Penobscots attorney

agreed that the State Act allowed for more extensive jurisdiction

over the Penobscots than the typical State Tribal relationship

The Courts opinion stated that

The Penobscot Nations counsel acknowledged that the

expansion of the States jurisdiction over the Maine Indian

tribes from what he conceived it previously to be was part

of the quid pro quo for the States going along with the

settlement which was necessary for the Nation to get the

monetary benefits provided it by the settlement

Id at 488 n7

The Court rejected a broad interpretation of internal tribal

matters over which the Tribe had jurisdiction The Maine

Supreme Court instead interpreted internal tribal matters to

mean those listed in the State Act such as membership in the

Tribe the right to reside within a reservation tribal

government and other matters like them such as matters of

cultural or historical concern Id at 48990

The Stilphen Courts specific holding that the Penobscots

operation of beano games was not an internal tribal matter

under 30 MRSA S 6206 and was therefore subject to the States

jurisdiction 461 A2d at 488 90° is not directly on point for

our jurisdictional analysis here

The Maine Supreme Courts Stilphen opinion provides further

support for concluding that the Maine Indian Claims Settlement

Act does limit the jurisdiction of the Penobscot Tribe more

severely than that of Tribes in many other states

°Note that this decision was prior to enactment of the 1988

Federal Indian Gaming Act that allows gambling on reservations

42

EPA004828
16

8 Jurisdiction and Physical Boundaries

The Penobscot Reservation in Old Town is located north of Bangor

in southcentral Maine The State Act defines the Penobscot

Indian Reservation to mean

The islands in the Penobscot River reserved to the Penobscot

Nation by agreement with the States of Massachusetts and

Maine consisting solely of Indian Island also known as Old

Town Island and all islands in said river northward thereof

that existed on June 29 1918 excepting any island

transferred to a person or entity other than almember of the

Penobscot Nation subsequent to June 29 1918 and prior to

the effective date of this Act If any land within Nicatow

Island is hereafter acquired by the Penobscot Nation or the

secretary of the Interior on its behalf that land shall

be included within the Penobscot Indian Reservation

30 MRSA 5 6203 8

The State Act defines Penobscot Indian Territory as the

Penobscot Reservation plus the first 150000 acres of land

acquired by the US Department of the Interior from certain

specified lands prior to April 1 1988 30 MRSA 5 62039

The Federal Act adopts the definitions of the State Act for the

Penobscot Reservation and Territory 25 USC 5 1722i and j Its definition of land or natural resources includes

water rights land or natural resources are defined to mean any

real property or natufal resources or any interest in or right

involving any real property or natural resources including but

without limitation minerals and mineral rights timber and timber

rights water and water rights and hunting and fishing rights

25 USC 5 1722b Therefore any jurisdiction over water

richts that the Penobscots have would be coverned by the Federal

and State Acts orovisions for State andor Tribal iurisdiction

over land or natural resources

Although the State Act defines the Reservation as noted above

this description does not define the precise boundaries of the

Reservation especially with regard to water boundaries No map

was included in with the Penobscot $ CWA 106 TAS application I

do not believe the Penobscot Reservation boundaries are defined

in any narrative or map with complete precision I am not aware

of any existing map that clearly delineates the water boundaries

A key aspect of this lack of precision concerns what the

Reservations boundaries are with respect to the thread of the

Penobscot River on either side of Indian Island and thus how

43

EPA004829
17

Maine common la would interpret the Reservations boundaries

Maine courts hold that an owner of land adjoining a fresh water

river owns to the thread of the river See Snrino V Russell 7 Me 7 Greenl 273 290 1831 Brown v Chadbourne 31 Me 9 19 1649 Central Maine Power cov Public Utilities

Commission 163 A2d 762 156 Me 295 327 1960 Such riparian

ownership rights could attach to ownership of islands in a river

which would go to the thread of the rivers channel on either

side ofthe island and the waters naturally in that channel

Warren v Westbrook mfo Co 29 A 927 66 Me 32 1893

One part of the State Acts legislative history addresses and

seems to adopt these common law riparian ownership rights but

another part of the legislative history seems to rebut that

assumption the enacted provisions do not address them either

way The Maine Legislatures Joint Select committee noted

riparian rights in defining the boundaries of the Tribes

ownership rights but only if they were express in the original

treaties or operate by State law

The boundaries of the Reservations are limited to those

areas described in the bill but include any riparian or

littoral rights expressly reserved by the original treaties

with Massachusetts or by operation of State law Any lands

acquired by purchase or trade may include riparian or

littoral rights to the extent they are conveyed by the

selling party or included by general principles of law

However the Common Law of the State including the Colonial

Ordinances shall apply to this ownership The

jurisdictional rights granted by this bill the State Act

are coextensive and coterminous with land ownership

Report of Joint Select Committee on Indian Land Claims at 3

The State could use other legislative history of the Act

however to argue for more restrictive boundaries Maine might

point to another section of the Committee Report and assert that

traditional riparian ownership rights do not attach to Indian

Island on the Reservation under the State Act

The jurisdictional provisions relating to fish and wildlife

use the term side of a river or stream which means the

mainland shore and not the shoreline of an island

The Report of the Maine Joint Select Committee on Indian Land

Claims at 2 emphasis added This indicates legislative intent

to treat island riparian rights under the State Act differently

than mainland shore riparian rights under State Common Law

I understand the thread of the river is roughly the middle

of the river where the main channel flows

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A further element of lack of clarity on the jurisdictional limits

of the Penobscots ownership and authority relates to the link

between water quality rights and riparian rights Under Maine

common law water quality interests are a part of the property

interest of riparian owners See Standton v Trustess of St

Josenhs Colleoe 254 A2d 597 Me 1969 It is not obvious how

should this common law provision should be interpreted in light

of the state Act and legislative history and the Stilnhen

decision On the one hand water quality interests might be

considered within the Penobscots property rights if the Tribe

has riparian rights because of their ownership of islands in the

RIver these water quality interests might therefore not be

subject to State jurisdiction On the other hand if the Tribe

does not have riparian rights because of the State Acts

legislative history even if the boundary of the Reservation is

in the middle of the river the Penobscots might not have the

jurisdiction to set water quality standards for the river

especially with the State Adts assertions of State jurisdiction

Finally the United States Supreme court has noted there are

significant complexities involved in determining ownership of and

jurisdiction over river beds banks and submerged lands that are

on or near Indian Reservations See eo Montana v US 450

US 544 55157 1981 The ownership and jurisdiction

determinations can turn on for example whether the rivers are

navigable or nonnavigable whether rights to river waters are

necessary to make the Reservations liveable and how

particular Indian treaties should be interpreted See id at

551 566 n15 and 567581

Despite these elements of confusion about the physical boundaries

of the Reservation and the resulting Tribal jurisdiction

believe there is no dispute that some Penobscot Reservation land

and natural resources are under the jurisdiction of the Penobscot

Nation for purposes of the 5 106 grant activities such as

monitoring water quality This conclusion is further supported

by the Cooperative Agreement provisions noted below and by the

Penobscots S 106 application which describes its intent to

develop a water pollution control program for the surface water

resources located on the Reservation

If the Penobscots apply for other CWA programs or programs under

the Safe Drinking Water Act or other statutes however more

detailed descriptions of Reservation boundaries and of resources

affected by the statutory program such as surface waters and

groundwater including sources of drinking water would be

required at the time the Tribe files its assertion of tribal

jurisdiction over such resources This factual information would

be necessary in order to clarify whether or not the Tribe had

legal jurisdiction over the resources for purposes of the

particular EPA program

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9 Jurisdiction and The Cooverative Aareement

The Penobscots and Maine have entered into a cooperative

agreement that provides further support for the determination

that TAS status should be granted despite the jursidictional

complexities and unresolved issues noted above

The Penobscot Indian Nation State of Maine Agreement of June

1 1992 the Agreement provides for a comprehensive program for

monitoring the water quality of the Penobscot River through

implementation of a Penobscot National Water Quality Monitoring

Program The Agreement notes that the State is required to

maintain a water quality management plan WQMP for all surface

waters within the state including the Penobscot River The

Tribe and the State acknowledge the desirability of the Nation

undertaking monitoring of the Penobscot River that meets or

exceeds the requirements of the States WQMP and agree to work

in cooperation to incorporate the Nations efforts into the

overall State Water Quality program

The Agreement provides particular support for a S 106 TAS

determination in that the Agreement provides that the Penobscots

and the State acknowledge and agree this Agreement is contingent

on the receipt by the Nation of funding from EPA to carry out the

purposes of this Agreement

In addition EPA provided notice to the State of Maine of the

Penobscots application for TAS status including a copy of the

Nations statement of the legal basis for the Penobscots

regulatory jurisdiction over its water resources and the State

has not objected The Cooperative Agreement also is evidence

that the State would not dispute the Tribes jurisdiction over

water resources for purposes of the 106 grant monitoring

activities

10 Jurisdictional somnarv

An Indian jurisdictional analysis by EPA should be fact specific

with reference to a particular Tribe and State and function

specific with reference to a particular grant or program

purpose The analysis should start from the general federal

Indian law principle that Tribes possess those aspects of

sovereignty not withdrawn by treaty or statute or by

implication Felix Cohen Handbook of Federal Indian Law 23132

1982 As noted above however the State and Federal Maine

Indian Settlement Claims Acts present nearly unique issues for

the jurisdictional analysis of the Penobscots authorityls

Jurisdictional analysis here may reflect not only the

Settlement Claims Acts but also the unique and unsettled status

of Indian Tribes under federal law On the one hand Tribes are

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In the case of the Penobscots both the legal boundaries cf the

Tribes jurisdiction and the physical boundaries of the

Reservation present ambiguities at their edges but 1 believe

both also have an undisputed jurisdictional core that clearly

supports a determination of treatment as a state status under CWA

S518e2 for purposes of a CWA S 106 grant for water quality

monitoring

I therefore conclude that the Penobscots have made the requisite

showing of jurisdiction over Tribal water resources sufficient

for purposesof the S 106 grant

C Capability to Administer Grant Procram The Tribe is

reasonably expected to be caoable in rEPAs iudcment of

carryina out the functions to be exercised in a manner

consistent with the terms and ourooses of fthe CWA 1 and of

all eotilicable 1eau1ationsu1°

The Penobscot Nation has successfully sought and operated several

environmental and public health grant programs so that it is

clear that the Tribe is capable of operating environmental

programs on the reservation and meeting the requirement that the

Tribe be reasonably expected to be capable in EPAs judgment

of carrying out the functions to be exercised in a manner

consistent with the terms and purposes of the CWA and of all

applicable regulations CWA 5 518e3 Factors that may be

considered in determining that a Tribe has the requisite skills

include 1 the Tribes previous managerial experience 2

existing environmdntal or public health programs administered by

the Tribe 3 existing or proposed staff resources and staff

stability or continuity 4 the Tribes accounting and

procurement systems and 5 mechanisms in place or available for

carrying out the executive legislative and judicial functions

of tribal government Indian Tribes Water Quality Planning and

Management 40 CFR Parts 35 and 130 54 Fed Reg 14354 14356

April 11 1989

The Penobscots have a well organized Natural Resources Department

with a Land Committee and a Water Resources Committee This

department appears to EPA Region 1 be quite capable of organizing

and implementing a CWA 5 106 pollution abatement grant The

sovereign within certain areas On the other hand Tribes do not

have all attributes of sovereignty and are not independent as

evidenced by the trust relationship in which the Federal

government is to act in the Tribes interest These issues

continue to evolve both in Agency policy and in judicial caselaw

16CWA S 518e3 33 USC 5 1377e3 40 CFR S1306d3

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Penobscots have had a water quality monitoring program in place

since June of 1969 which has conducted numerous studies on water

and wildlife conditions

The Penobscots have also been successful in operating their

multimedia grant from EPA The original grant was made in 1991

in 1992 when the award was scrutinized by Federal officials

additional funds were provided for a total of $152192

The Tribes application contains a detailed description for the

assessment of surface and ground water needs and ageneral

pfotection program that would be operated by a trained staff of

professionals In addition the Penobscots have established the

necessary administrative and judicial systems to ensure the

programs proper administration

Over the last few years the Penobscot Nation has successfully

sought and administered $325 million of grant funds from nine

grants These grants include ones from the US Department of

Interiors Bureau of Indian Affairs for social services wildlife

management and real estate services programs for grant funds

totalling $725190 The Penobscots have also administered a $2

million grant from the US Indian Health Services for a health

services program and a $200000 grant from the US Department of

Vocational Education for a vocational services program The

Penobscots have already successfully administered other EPA

grants a multimedia grant of $104581 and a wetland protection

grant of $46875 Finally the Penobscot Nation has administered

state human service grants from Maine for childrens and

substance abuse isues that total $103723

Furthermore the Penobscot Nation has in place a system of

accounting for federal grant funds which meets the standards

listed in 2767 CFR Part 25 entitled Standards of Grantee

Financial Management Systems The Tribe has administered seven

Federal grants and two State grants for a total of about

$3249441 in grant funds

I conclude that the Penobscots have made the requisite showing of

capability to administer a CA S 106 grant

D The Tribe is recognized by the Secretary of Interior and

exeroisino rsicl governmental authority over a Federal

Indian Reservation

The Penobscot Nation is listed on the current list of federally

recognized Tribes established and maintained by the Secretary of

the Department of Interior A current list is also kept at EPA

headquarters

CWA S 518h 2 33 USC S 1377h2 40 CFR 51302b

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I conclude that the Penobsoots have made the requisite showing of

being a federally recognized Tribe

IV conclusion

For thereasons noted above I believe that the Penobscot Nation

has met the Clean Water Act S 518e standards for Treatment as a

State for the limited purposes of Clean Water Act CWA 5 106

grant activities

I recommend that the EPA Region 1 Regional Administrator

determine that the Penobscot Nation has met the requirements to

be treated as a state under CWA 5518e2 for and limited to

the purpose of receiving and administering a CWA 5 106 water

quality monitoring grant

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