## COMMENTS OF

### MAINEATTORNEY GENERAL JANET

# TMILLS

## ONEPAS REVIEW OFMAINE

## WATER QUALITYSTANDARD REVISIONS AS

### THEY APPLY IN 

### INDIANTERRITORIES 

### SEPTEMBER 13 2013
The State ofMaine byand through its OfficeofAttorney General hereby submits the
following comments in response to

### EPAsPublic Notice of

### EPAs Review ofMaine Water
QualityStandard Revisions asThey Apply in Indian Territories 

### EPAseekscomments on the

States authorityunderthe Maine ImplementingAct 30

# MRSA §§ 6401 etseq

# MIA and

Maine Indian Land ClaimsSettlementAct25

# USC §§ 1721 etseq

# MICSA to setwater
qualitystandards

# WQS in Indian territories and on whether these particular

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

hasthe authorityand responsibility to establish

## WQS for all ofthe watersofthe State including

anywaters within or near Indian territories and the statutes do not permit

### EPA oranyofthe
Maine Tribes to set

## WQS inthe States stead as is morefully explained below 

### EPAs CurrentReview is Unlawful and Unnecessary
Atthe outset we object to

### EPAs review process which is unlawful 

### EPAs authority

over state water qualitystandards is set forth at33

# USC §

## 1313c3 which authorizes 

### EPA to
specify any changes to the proposed standards the agency believes are necessary underthe Clean

WaterAct

# CWA within 90 days oftheirsubmission The standards inquestion here were

submitted to

### EPA inJanuary of2013and 90 days has long since passed Therefore

### EPAhasno
authority to require anychanges to these standards inconnection with theirfederal approval
Additionally there isno legitimatereason for

### EPAto establish aseparate federal notice
andcomment process concerning these proposed standards In its notice 

### EPAsays it is soliciting comment 

### incase somemembers ofthe public were not aware thatthe State intended to applythese standards to Indian waters As the state rulemakingrecord makesclear and as

### EPAknows

well given its own participation in that process one ofthe central issuescommenters addressed

waswhether the standardswere sufficiently protective ofIndian subsistence fishers These

commenters included the Penobscot Nation and

### EPA both ofwhich submitted extensive
comments aswell asthe Houlton Band ofMaliseet Indians The record shows thatMaines

Native Americancommunitywaswell aware ofthe rulemakingand actively participated in it

This being the case it is amysterywhich 

### membersofthe public 

### EPAbelieves mayhave

missed theirchance tocomment at the state level because theywereunaware these standards
would apply to Indian territories Once again 

### EPA is acting as aroving commission
presumably inorder tojustify anoutcome where

### EPAhassomenewfound 

## WQSjurisdiction
SeeMichiganv

### EPA268 

### F3d 1075 108486

# DC Cir

### 2001 Courts have been highly critical
of

### EPAforsimilarmaneuvering on statetribal issues Id criticizing and rejecting 

### EPAeffort to
create jurisdictional controversy in ordertojustify imposition ofa federal CleanAirAct

program indisputed territory 

### We alsonote that

### EPA hasmadeno finding thatMaine has inadequate authority to adopt
and enforce its

## WQS within oradjacent to Indian territories 

### EPAcannot assert federal authority when it merelyprofesses uncertainty regarding astatesjurisdiction over tribal territory it must

first make a formalfinding that a state lacks jurisdiction Michigan 268 

### F3d 1075 108486 As

theagency issurelyaware such afinding is precluded notonlybythe expressterms ofthe

### MIA

and

### MICSA butalsobythe FirstCircuit CourtofAppeals ruling inMaine 

### vJohnson 498 

### F3d

37 1stCir

### 2007

Pursuant to the

## MIAMaines environmental regulatory authorityapplies uniformly
throughout the State including to Indian landsand waters 30

# MRSA §6204 

### When EPA

2deniedMaine delegation ofthe National Pollution Discharge Elimination System

# NPDES

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

Circuitvacated the decision finding thatthe

### MIA isaboutas clearas is possible in conferring

jurisdiction on the State over Indian landsand waters Johnson498 

### F3d at

### 43 EPAs

reluctance toacknowledge the Statesauthority to adopt and enforce its

## WQS in Indian Territory
today is reminiscent oftheagencys now discredited decisionmakingon the States

### NPDES

application but is inexplicable in light oftheJohnson decision which provides clarityon the

jurisdictional issue

### EPAs HistoricalTreatment ofMaines Proposed 

## WQS

Foryears both beforeand after the 1980 passage of

### MIAand

### MICSA Maine adopted
and revised its

## WQS submitted them to

### EPA for federal approval and

### EPAacted onthem all

without anymention ofan issue regarding jurisdiction over Indian territoriesi Forexample in
1986 Maine substantially revised and strengthened its

## WQS toprotect its water resourcesand

Fouryears afterthe passage ofthe SettlementActs

### EPA issued its 1984 Policy forthe AdministrationofEnvironmental Programson Indian Reservations 

### 1984 Policy available at hupwwwepagovitribalipdfindianpolicy84pdf That document specifically acknowledged that a state couldhave

### an express grantofjurisdiction fromCongresssufficient to support delegation to StateGovernment 1984 Policy at

### 2 This language isa clear reference to settlement
acts such as

### MICSA Not surprisingly Maine commented on a draft ofthatdocument to make that connection explainingthat asettlement act conferred state authorityoverthe Penobscot Nation and the Passamaquoddy Tribe and thus ruledoutthe possibility ofdelegating any programs to thetribes The Originsof

### EPAs IndianProgram 15Kansas Journal of

### Law Public Policy 191 at294 fn 497 Winter

### 2006 EPA apparently accepted that atthe timejustas it should have Butwhile

### Mlle 1984 Policy remains the cornerstone for

### EPAs Indian program

### EPA is now acting atvariance with it inMaine since theagency continues to resist that Congresshas expressly grantedjurisdiction over Indian territories tothe State 

### EPAPolicyon Consultation and Coordination with Indian Tribes

### May

### 42011 at

### 4 available at httpwwwepagovtribalpdficonsandcoordwithindiantribespolicypdf

3designated uses 

## MePub

## L 1985 

### c698 § 15now asamended38

# MRSA §§464 etseq
These standardsprovided various classifications for different levels ofprotection and

specifically applied to every surface water inMaine including waters inornear Indian

territories such as the Penobscot River Id at §

### 4647 None ofthe standards ordesignated

uses mentioned orprovided anyspecial protection to tribal interests orsustenance fishing Id


### EPA raisedvarious unrelated concerns regarding these standardsand theirapplication to various

waters including those in ornear Indian territories withoutanymention that applying these

standards to Indian territories required special

### EPAapproval ortriggered some different level of

scrutiny2 Ina letter dated April

### 24 1987 

### EPA specifically discussed standards forthe

Penobscot River and itsWestBranch with no mention oftribal issues3 Repeatedly and

consistently

### EPAapproved Maines proposed standards even though the standards expressly
applied toareas the Tribes claim to bewithin theirterritories4

2 Letters dated July 16 and August

### 20 1986 from

### EPARegional Administratorto

### DEP CommissionerExhibit

# Ex3

3Letter dated April

### 24 1987 from

### EPARegional Counsel toCounsel tothe Governor ofMaine 

## Ex

# 4

4 Letters dated June 

### 28 1999 from 

### EPA Director Office ofEcosystem Protection to Acting 

### DEP Director Land and Water Quality

## Ex11 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

# 8May 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 ofWater Quality Control

## Ex

# 6 May 21 and August 

### 31 1987 from

### EPA Regional Administrator to

### DEP Commissioner

## Ex

# 5Moreover 

### 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 Commissioner

## Ex

# 1

4Atabout thetimeMaine filed its application for

### NPDES delegation

### EPA forthe first

timeincluded language in its

## WQS approval letters indicating thatthenew and revised standards
were approved except as to Indian territory5 Maine has

### now repeatedly and inwriting asked 

### EPA to explain the legal basis for its refusal to approve its

## WQS as to Indian territory asked
which water bodies theagency considers tobewithin Indian territory and asked what standards
apply there if in factMaines donot 

### EPA has refused toanswerthese questions directly The

agencys handling ofthisissuehasdone nothing tohelp Maine citizens including tribal
members but has created confusion where none should exist inthewake oftheJohnson

decision

It should be noted here that

### EPAsofficial positiontoday thatMaines

### WQS do not
apply within Indian territory because 

### EPAnever expressly approved them as applicable there
apparently has only theoretical meaning to theagency 

### EPAhasreviewed dozens ofdraft
permitsfordischargeson the MainStem ofthe Penobscot River including fora facility on the
Penobscot Reservation at Indian Island but hasneveronce taken the position thatMaines

generally applicable

## WQS did not in factgovern these applications Ofcourse 

### EPA could never

take that positionbecause if it did it would have to point to some alternative setofstandards that
apply instead of

### Maines and would have to explain the legal basis for all ofthiswhich is not
possible Sowhile

### EPA on the one hand maintains that it has neverapproved Maines

## WQS as

to Indian territory on the otherhand it continues toapplyMaines standards to each and every 

## CWA proceeding inthe State

5 Letters dated February

### 92004 fromLinda

# M Murphy Director OfficeofEcosystem Protection to

### DEP Commissioner April 142004 fromLinda

# M Murphy Director Office of Ecosystem Protection to

### DEP Commissionerand January

### 252006from Linda

# M Murphy Director Office ofEcosystem Protection to

### DEP Commissioner

## Ex 12

5Similarlywhenever 

### EPA itself issues a

### NPDES pelmitthe

## CWA requires a certification
from the state pursuant to section 401 33

## USC § 1341 that the discharge complies with the state

water qualitystandards and state law requirements 

### PUD No I of Jefferson 

### Cov Washington DeptofEcology 511

# US 700 704 

### 1994 Maine hasbeen issuing section401 certification
throughout the state including inareas inornear claimed tribal waters without anyhintfrom

### EPA

thatjurisdiction todoso islacking Maines Authority under the

### MIAand

### MICSA to Establish

## WQS in Indian Territories
The Federal Water Pollution Control Act Amendments of 1972 instituted 

# a
comprehensive program forcontrolling and abating waterpollution Train 

### v Cityof

### New 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 eliminatepollution 

## CWA § 

### 101b 33

# USC §

### 1251b

It isnow well established thatMaine has primary jurisdiction overthe waters inthe State
including anywaters in ornear Indian territory The 1980 Settlement provided thatwith very
limited exceptions the Tribe would be subject toMaine

# law Johnson 498 F3d at

### 42
Oneofthe cornerstones ofthe

### MIA establishes
Except asotherwise provided in thisAct all Indians Indian nationsand tribes and bands ofIndians inthe State and anylands orother natural resourcesowned bythem held intrust forthem bythe United States orby any other person or entity shall besubject to the lawsofthe State and to the civil and criminal jurisdiction ofthe courts ofthe State to the same extent asanyother person or lands orother natural resourcestherein
30

# MRS §6204

# The then Interior Secretarys stated to Congress that the Settlement Acts

wereintended to effectuate the broad assumption ofjurisdiction over Indian land bythe State of 

### Maine

# HR Rep 961353 at

### 28 reprinted in 1980

# USCCAN 3786 38033804 reportof

6the Department ofthe Interior Johnson 498 

### F3d at45

### n10 This jurisdictional principlewas
confirmedand approved in

### MICSA 25

# USC § 1725

Atthe timethe Settlement Actswere adopted the InteriorDepartment largely responsible for relations with Indian tribes told Congress thatthe southern tribes landswould generally besubject to Maine law

# HRRep 961353 at28 reportofthe Department ofthe Interior The Senate Report adopted bythe House Report declared thatState law including but not limited to laws regulating land use or management conservation and environmental protection are fully applicable as provided intheproposed bill and Section 6204 ofthe Maine Implementing

### ActS Rep96957 at

### 27

# HRRep 961353 at20
Johnson 1498

### F3d at4344 emphasisadded Congressunderstood thatunder thenewlaw
Maine would retain its environmental regulatory authorityoverthe Tribes and their territories
The Senate Report stated thatforexample although the federal Clean AirAct 42 

# USC §7474 accords special rightsto Indian tribesand Indian landssuch rights will notapply inMaine because otherwise theywould interfere with State air quality lawswhich will be applicable tothe lands held by orforthe benefit ofthe Maine Tribes This would also be true ofpolice power lawson such matters as safety public health environmental regulation orland

### useSRep96957 at31

Id at44

### n7

In the face ofthis

### EPAhas previously asserted indicta that it has a trustresponsibility

totake overpromulgation

### of

## WQS insofar as they affect tribal waters

### 68Fed

### Reg 65052
6506768 November 18

### 2003 Maine stronglydisagrees Firstreservation lands inMaine

are not held in trustbythe federalgovernment 

### SRepNo 96157 96th

### Cong 2d SessSenate Report

### 151980 

## HRRep No 961353 96th

### Cong2d Sess

### 1516 reprinted in 1980 

# USCCAN House Report at3791 Bangor Hydroelectric 

### Co Milford 83

### FERCP61037
6108586 

### 19986

6The federal Department ofInterior

# DOT has previously stated that fee title to the islands in the Penobscot Riverwas held byMaine in trust for the benefit ofthe 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 7Second to the extent that

### EPA could ever lawfully invoke a federal trustresponsibility

towards Indian territory in amanner that affects statejurisdiction underthe

## CWA such trust

responsibilitywould notapply inMaine Title25

# USC §

### 1725h ofthe federal SettlementAct

makes clear that federal Indian law thatwould otherwise affect orpreemptthejurisdiction of

Maine relatingtoenvironmental mattershasno effect inMaine Id §

### 1735b

Likewise in 1987 Congressamended the

## CWAby interalia adding section 518 which

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

treatment as state status 33

# USC § 

### 1377e Generally outside ofMaine a tribemaybe

grantedjurisdiction to regulate water resourceswithin its borders in the same manner asstates

This includes the authority to establish tribal water qualitystandards subject to

### EPAapproval
and the authority to issue

### NPDES permitsfordischarges intosuch waters CityofAlbuquerque
VBrowner 97

### F3d415 91h Cir

### 1996 Because it would affect Maines regulatoryjurisdiction
and it was notmade explicitly applicable toMaine Section 518 does notapply inMaine 25 

# USC §

### 1735b Indeed Congress considered thisvery issue

This section does not override the provisions ofthe Maine Indian Claims Settlement Act 

### 25 

# USC § 

### 1725 Consistent with subsection 

# h of the SettlementAct the tribes addressed bythe Settlement Act are not eligible to be treated as States for regulatory purposes
Water QualityAct of1987 Section

### bySection Analysis reprintedat2 1987

# USCCAN1987 

## CWAAnalysis at

### 5 43 emphasis added 

### EPA itself addressed the issue in a 1993 guidance
document

httpelibraryferegov Beginning with the 1984 relicensing ofthe 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 ofthe Penobscot Nation and so these lands are nota reservation within the meaning ofthe FederalPower

## Act 8

### The provisions of the 1980 Federal Settlement Act seem to invalidate federal laws that mightgive the Penobscots special status if it would affect orpreempt the States authority including the Statesjurisdiction over environmental and land usematters 

## 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 EPAMemorandum emphasisadded

## Ex13

Additionally

### EPA hasno trustresponsibilitytoward Indian tribesexcept tothe extent

that Congresshas created it bystatute The First Circuithasexplained that the federal trust
responsibilitytoward the Maine Tribes is fullyand exclusively expressed through the substance of

the statutes and regulations thatanagency is charged with administering Nulankeyunnonen
Nkihtiaqinikon VImpsan 503

### F3d 13 31 1stCir

### 2007 To the extent that

### EPA attempts to

breathe into this trustresponsibilityconcept substantive orprocedural requirements that are not
embodied instatute theagency isacting unlawfully This conclusion is particularly compelling in

the contextofthe

## CWA because there is no written setofstandards narrative numerical or

otherwise thatanyone 

### mayreview to assesswhether a particular action complies with thistrust
responsibility Fortheagency togive this concept independent substantive orprocedural meaning therefore is forthe agency togrant itself license to handleany tribal issue inwhatever
way it seesfit and declare the result to be compelled byatrustresponsibility That is the height

ofarbitraryand capricious decisionmaking Michigan 268

### F3d at 1085 rejecting

### EPAargument

that its interpretation ofthe CleanAirAct is correct simplybecause it favors Indian interests
The notion that

### EPA hassomefreefloatingundefined allencompassing trust responsibilitythat is

9understood onlybythe agency simplycannot stand because it would effectively overwrite and

rendermeaningless express provisions ofthe

### MIAand

### MICSA

In

### sum it is plainly obvious to all whowish to see thatanywaters arguably within Indian

territories are tobe treated like all other waterswithin Maine the State has clearauthority to issue 

### WQS forthesewatersand

### EPA hasno trust responsibilitythat authorizes the agency toapply
heightened scrutiny to Maines

### WQS before approving them as to Indian Territory The Substantive Adequacy ofMaines

## WQS revisions
The

## CWA hasdeep roots inMaine as SenatorEdmund Muskie was the laws chief

architect Conistent with thislegacy Maine takes seriouslyits responsibilityand
commitmentto protect water qualityon behalfofall citizens throughout Maine including

sensitive subpopulations thatengage insustenance fishing Forreasons expressed in

### DEPs

submission to

### EPA in support ofthe 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 

### EPAitself has reliedonsomeofthe same studiesand thesame analytical approach inother contexts and thehuman health criteria are grounded in the empirical local
population specific data that

### EPAprefers The rulemakingrecord shows that the

### DEP took

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

### EIA itself and provided a reasoned decision supported bythatrecord On the merits

there isno basis for

### EPA todisapprove require revisions to orotherwise secondguess the
outcome of

### DEPs rulemakinghere

10Dated September 132013 

### JANET

## T MILLS 

### ATTORNEY GENERAL

aul Stern Deputy AttorneyGeneral ChiefLitigation Division Gerald

# D Reid Assistant Attorney General ChiefNatural Resources Division 6 State House Station Augusta

## ME043330006 

### 2076268800Exhibit 1 sz44 

## An 

# Za

+4t

## mos

February

### 20 1985 UNITED STATES ENVIRONMENTAL PROTECTION 

### AGENCY
REGION I J FKENNEDY 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

### 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

# 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

# 50mgL 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 

### developedell 

### 2747 UNITED STATES 

### ENVIRONMENTAL PROTECTION AGENCY REGION
I J FKENNEDY 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

# 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

# tra

July 

### 16 1986 UNITED STATES ENVIRONMENTAL 

### PROTE71 REGION

I J FKENNEDY 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 

## Act must be 

### consistent with 40

# CFR S13112

# a1 

# 4 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

# 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

# CFRS13112a2 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 

# CFRS13112a1 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 

## wellestablished 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

# 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 

### usesIf 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 water

### quality 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

# 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 

# WH585IECI 4 

# itraW

4t

# Nod UNITEDATATE$ 

### ENVIRONMENTAL PROTECTION 

### AGEN4Y REGION

I FKENNEDY 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 30 acres in 

### surface 

### area and

# 3
jniot have any 

### upstream direct discharges except 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

### 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

### 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 

# 0164gArf0015

Michael 

# R Deland 

### Regional Administrator 

## cc Jennie 

### Bridge NEIPCC 

### David 

# K Sabock Criteria and Standards 

### Branch EPA

# tra la44 miorteft 164
UNITED STATES ENVIRONMENTAL PROTECTION 

### AGENCY REGION
I J FKENNEDY 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



### I7

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 

## letterLetter 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

HAttiottExhibit5

May 

### 21 1987 orpciVE 

### nrrVnui 

# oETCTIOH UNITED STATES ENVIRONMENTAL 

### PROTECTICraiNg 

## A8 28 REGION
I JFKENNEDY FEDERAL BUILDING BOSTON 10SSACHUSETrt

## meVICES

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 toLetter 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 GP

# A

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 YoLL 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

### 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

# CFRAttachment 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

### 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 

### Commissioneror 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

### 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 

### Statesfailure 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 1975Attachment 

## 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 

### wellestablished 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

### 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 

### classificationAttachment 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 

### receipt of this letter that 

### it will be



# recommending

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 similarto those in the 

### national criteria document and that the instantaneous

### minimumwould be 

### easier to 

### monitor enforce and 

### model Nevertheless EPA believes that 

### chronic criteria forAttachment 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 

### ofsummer 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

### 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 

### criteria0ED 514 Ars 

# UZZI UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

pçec REGION
I JFKENNEDY 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

# 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 

### Sabock 

# EA Headquarters

# L4 Qiuars 

### nrrodg nFP 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 IExhibit6

seED Stitea P AlEgt



# 2ra z

4t PiOt UNITED 

### STATES ENVIRONMENTAL PROTECTION AGENCY REGION
I JFKENNEDY 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 GP

# A

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

# 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 in

### stream 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 in

### stream 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

# 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 ortestimonywhich 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

# 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

# bycase 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

# 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 RRC2203Exhibit 7
0E0 S cgp UNITED 

### STATES ENVIRONMENTAL PROTECTION AGENCN P 

## IA Ti REGION JF KENNEDY FEDERALBUILDING 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

### 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 JFKENNEDY 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 streamminimum

### 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 ONRECYCLED PAPER Exhibit 8

### 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 

## RiverSt 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 ofEnvironmental 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 ¶

# CAn 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 

### yourclassifications 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

I 

## cc jaliidIt 

### Sabock 

## EPA WH585 Lee 

### Schroer 

## EPA LE

## 132W etelilanche 

### ME DEP Tim 

### Glidden Office of 

### Policy Analysis ME 

### LegislatureI

## lira

it

### moll UNITED STATES ENVIRONMENTAL PROTECTION 

### AGENCY REGION

I JFKENNEDY 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 ONRECCLE PAPER2 

### 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 besignificantly 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 

### satisfied3 

### 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 

### Empoundment4 

### specifying the new lower criteria forthat 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

# IExhibit 10 

## eTe4 P 

## in 4

GC° UNITED 

### STATES ENVIRONMENTAL PROTECTION AGENCY REGION JFKENNEDY 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 for

## ClassCwaters 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 

### forthe less 

### sensitive warmwater 

### fish 

## Class C 

### waters have been 

### designated as 

### having 

## XT°4 w4t SAVE IT

PRINTED ON RECYCLED PAPiRthe 

### 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 

## mystaff at 

# 617 5653531 ely

anfrecionia rater 

### Quality Branch



## cc Tim 

### Glidden OPLA Gordon 

### Becket 

## USFWS David 

### Sabock EPA HQ Tonia 

### Bandrowicz ORC011

14 hvc0

June28 1999 UNITED sTATES ENVIRONMENTAL PROTECTION 

### AGliNCY REGION 1 JOHN 

### FKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203000i

Dennis

## A Purington Acting Director Bureau ofLand Water Quality 

## MEDept ofEnvironmental Protection StateHouse Station 17 Augusta

## ME 043330017
Dear

### MrPurington Exhibit 11

OPRONAL FORM 9910o 

## FAX TRANSMITTAL qh21P2

II pigat
Ta Y4fr 

### t4 

## cjAP 

# D4 a0727

# 79 Fa I 

# 477raY5

NSN 7540ot3t7Tan 509010 GeNERAL S EfIVIC ESADIAINISTPAIIM

This letter is to acknowledge yourJune

### 21 1999 submittal ofacompleteand current effective water qualitystandards

# WQS package for inclusion in the Clean Water Act

## WQS docket for Maine Asyou are aware theWater Quality Standards

# WQS docket is necessary to support the 

## WQS program after

### EPA revises Its

## WQS rule inresponse to the Alaska court ruling Alaska CleanWater Alliance 

### v Clark 

### No C961762 Tuly

### 8

### 1997 In conjunction With the rule making process 

### EPA will offerthe public an opportunity to review the

## WQS docket 

### We will contact you if the public review orfurtherreview bY

### EPA identifies any ondssions or erroneous inclusions thatmayneed to be corrected
thank you foryour assistande in creating the

## WQS docket Pleaiecontaci me

### 6179181501 or Bill Beckwith of

### mystRfF6179181 

### 544 ifyou have anyquestions Sincreiy

LindaMurphy Director r Office ofEcosystem Protection

cc Fred Lcutner

### EPASASD Ronald Poltak 

### NEIWPCC

Iniernat Addrods UFlp httpdAyynyppecpy FifycloctrRacycii1314 4firtnt4 With Vevstebio01 M14E4 Inks onFlocYc3ed Pape rMclknum 271 Pt$taonsunwrlWater Quality Criteria Bibliography

### Maine Bureau ofLand and Water Quality Maine Department ofEnvironinental Protection June 16 1999 CORRECTED COPY 63099

NarnefTitle Citation e Date of last amendment Number ofPages Statutory Sections Definitions 33MRSA361A July9 1998 2 Waiver ormodification ofprotection and improvement laws 33MRSA363D July141994 1

Definitions 38

### MRSA410H Oct9 1991 1 Program implementation 38 lvIRSA 410J June 30 1992 1 Waste discharge licenses 38 IvIRSA 413 July9 1998 3 Conditions oflicenses 38

### MRSA414A July9 1998 5 Publiclyowned treatment

# works 38

### MRSA414B July9 1998 1

Colorpollution control 33NERSA414C Sept 19 1997 2 Certain deposits and discharges prohibited 38 1V1RSA417 July14 1990 1 Log driving and storage 38

### MRSA 418 July9 1998 1 Protection of the lower Penobscot River 38

### MRSA418A July13 1982 1 Prohibition on the use oftributyltin as an antifouling agent 38

### MRSA419A March 29 1993 2

Certain deposits and discharges prohibited 38

### MRSA420 June 1 1 1999 

# 5 Discharge ofwaste fromwatercraft 38MRSA 423 June 30 1989 1 Discharge of waste frommotor vehicles 38

### MRSA423A Sept29 1987 1

Enforcement 38

### MRSA 451 July

### 9 1998 1 Time schedule variances 38

### MRSA451A Oct 13 1993 3 Classification ofMaine waters 38

### MRSA 464 July91998 11 Standards for classification offresh surface waters 38

### MRSA

### 465 July14 1990 2 Standards for classification of lakes and ponds 33

### MRSA

## 465A July14 1990 1 Standards for classification estuarine and marine waters 38

### MRSA465B July14 1990 2 Definitions 33

### MRSA 466 July14 1990 2 Classification ofmajor riverbasins 33

### MRSA

## 4G7 July14 1994 15 Classification of minordrainages 33

### MRSA

## 468 June30 1992 4 Classification ofmarine waters 38

### MRSA

## 469 June 24 1991 7 Approval criteria 38

### MRSA 636 Sept 29 1995 

## 2

Asamended by

### An Act toAmend theWater Quality Laws to Establish aNew Standard forMercury Discharges P11999 ch 500 June 11 1999 5


### Amended by

### An Act toAmend Certain Laws Administered by the Department ofEnvironmental Protection Bureau ofLand andWaterQuality PL 1999 ch 243 September 18 1999 9


### Amended by

### An Act to Reclassify CertainWaters of theState PL 1999ch 277 September 18 1999 15

Rule Chapters Administrative Regulations forHydropowei Projects 06096 

### CMR 450 and 04061

# CM

11 May 41996 13

Regulations Concerning the Useof Aquatic Pesticides

I 06096 CivER 514 May4 1996 1

Environmental Regulation Surface Waters Taxies Control Program 06096 5305 Aum ce 13 1997 13

Discontinuance of Wastewater Treatment Lagoons 06096

### CMR 550 1V14 1996 2Stortnwater and Combined SewerOverflows 06096 CMR 570 May4 1996 1 Snow Dumps Exemption fromWaste Discharge License 06096 

### CMR573 May

### 4 1996 2 Regulations Relating toWater Quality Evaluations 06096 

### CMR581 May41996 2 Regulations Relating toTemperature 06096 CMR 582 May

### 4 1996 1 Identification of FishSpawning Areasand Designation of SalmonidSpawning Areas 06096 

### CMR585

e May4 1996 2
et Rules Pertaining to ClassA Waters 06096 

### CMR586 May

### 4 1996 2

Other Letter fromYon

## H Edwards Assistant Attorney General 

### 12990 supporting a statutory interpretation Outsideof statuteor regulation NA 5

Not yetdetermined Enacted oramended by the First Regular Session ofthe 119th Legislaturenon emergency provisionsExhibit 12

st004 

# tt Ard

N114FRO UNITED STATESENVIRONMENTAL PROTECTION AGENCY REGION 1
I CONGRESS STREET SUITE 1100 BOSTON MASSACHUSETTS 021142023

February92004



### Dawn Gallagher Commissioner Maine DepartmentofEnvironmental Protection 

## 17 State House Station AugustaMaine 043330017



### SUBJECT EPAReview ofChapter257Water Quality Standard Revision

Dear Commissioner Gallagher

The Environmental Protection Ageney

## EPAhascompleted its review ofChapter257 

## LD 1137

## AnAct Regarding RiverineImpoundments asrequired by33

# USC 1313c This legislative chapter revised the surface water qualitystandards administered bythe

### DEPsBureau ofLand Water Quality and was certified byMaines Assistant AttorneyGeneral inthe Natural Resources Division onDecember 172003 as having been duly adopted pursuant to state lawpassed bytheMaine Legislature on

### May20 2003 and signed into lawbytheGovernoronMay23

### 2003 EPA iscontinuing its review ofChapter 418 and the otherChaptersfromthe Departments August262003 submittal oflegislation enacted bythe FirstRegularSeision ofthe

### 121 Legislature

Ihereby approve the revised water qualitystandards inChapter257 This approval is madepursuant to Section

## 30302 oftheCleanWaterAct and 40

### CFRPart131 and is based on

### mydetermination thatthe approved revisions are consistent with the requirements ofSection 303 oftheAct Inmaking thisapproval wehave afew comments concerning Chapter257 see attachment

# A
EPAs approval ofMaines surface waterstandards revisions does notextend towaters that arewithin Indian territories and lands 

### EPA is taking no action to approve or disapprove the States standards revisions with respect tothose waters atthistime 

### EPA will retain responsibilityunder Section 

### 303d forthosewaters 

## Mystaffand I look forward to continued cooperation with the

## MEDEP inexercising our shared responsibilityofimplementing thewaterquality standard requirements underthe 

## CWA Ifyou have anyquestions on theseissues please contact Steve Silva Director of 

### EPANew EnglandMaine Program at6179181561



# V Free 18883127341 InternetAddressURL httpwwwepagoviroglon1 RecleledReayelable Printed with Vegetable Oil Based inkson iltoyeled Paper Minimum30PosteonsumerSincerely

JM
Linda

# MMurphy Director Office ofEcosystem Protection

Enclosures

cc Andrew Fisk

## MEDEP David Courtemanch

## MEDEP BrianKavanah

## MEDEP Dana Murch

## MEDEP Vernon Lang

## USFWS MaryColligan

### NMFS Peter Colossi

### NMFS Edward Hanlon

### EPA

### HQ

2Attachment

## Ato February

### 92004 letterfrom

### EPA to

## MBDEP
Commentson Chapter257

Chapter257AnActRegarding Rtverine Impoundments 

### EPA has reviewed Chapter257 andwould like topoint out that the narrative standard in the final paragraph isan important confirmation that the2003 revisions are consistent with the

## CWA dissolved oxygen concentration in existing riverine impoundmentsmust hesufficient tosupportexisting and designated usesofthesewaters It is our understanding that

## MEDEP intends toMonitor dissolvedoxygento within05 in ofthe bottom forthe entirewatercolumn ofanyimpoundment and that compliance withthe narrative criterion as set forth in the final paragraph ofsubsection 13 and quoted above will still bedetermined throughout the waterbodyincluding where compliancewith the numeric criteria isnotmeasuredas set forth inSubsections 13

# B and

# Cto ensure that thewaterbody as awhole will attain existingand designated uses Application ofthe narrative criterion for riverineimpoundments below thepoint ofthermal stratification and

### M areasofinhibited mixingduo to natural topographical features isimportant to aSsure that water quality impacts areassessed and addressed in determining whether water quality standards aremetinthe iinpoundment as awhole

MdaAPY041EPA RilIVQ2003WQ8 rolowNEWQSApprovalLolder2 9 04wpd

3

## PRO

April 142004 UNITEDSTATES ENVIRONMENTAL PROTECTION AGENCY REGION 1
1 CONGRESS STREET SUITE 1100 BOSTON MASSACHUSETTS 021142023

Dawn Gallagher Commissioner MaineDepartment ofEnvironmental Protection 

### 17 State House Station Augusta Maine 043330017

SUBJECT 

### EPAReview ofChapters 227 245and 317Water Quality Stundard Revisions

Dear Commissioner Gallagher

The Environmental Protection Agency

### EPA hascompleted its reviewofChapters 227 245and 317 as required by33

## USC 1313e

Chapter Title
227 AnAct to List Agriculture as a Designated Use inWater QualityStandards
245 AnAei toAmend Certain Laws Administered bythe Department ofEnvirenriiental Protection
317 An Act to Reclassify Certain Waters orthe Slate

These legislative chapters revisedthe surface water quality standards administered bythe Department ofEnvironmental Protections

### DEPs Bureau ofLand 64Water Quality andwere certified byMaines AssistantAttorney General in the Natural Resources Division onDecember 172003 as having beendulyadopted pursuant to state law EPA
iscontinuing its reviewofChapter418 and theotherchapters from the Departments August26 2003 submittal oflegislation enacted bythe FirstRegularSession ofthe 121 Legislature

First I thank youand yourstaffforan impressive effort with regard tothe upgrading of

use classifications fornumerouswater body segments Inmanycases waters were reclassified to Class

### AA or

### SAMaines mostprotective classifications forfreshwater and saltwater respectively These reclassifications will significantly strengthen Maines
ability to protect its watersand further progress towards achieving the objeetiyesofthe Clean Water Act

# CWA

Toll Free I103727341

Internet Address UHL httrdAvwwepagovire6ont RecycledRecyclable Printed with Vegetable OH Rased Inks onRecycled PamM IntmumCOPoslconeumerI herebyapprove the revisedwater quality standards inChapters227 and 317 Chapter 227 adds adesignated usetoMainesclassifications and Chapter317 upgrades the classifications ofnumerous watersegments This approval ismade pursuant to Section 

### 303e2 oftheClean Water

### At

## CWA and 40

## CFR Part131 and is based onmy determination that theapproved revisions are consistent with therequirementsofSection 303 oftheAct Inmaking thisapproval wehave afew comments concerning Chapters 227and317 see attachment

# A
EPA is not taking action at thistimeon thewater quality standards revision in Chapter 245AnAct toAmend Certain Laws Administered bythe Department ofEnvironmental Pratection Sec 738MRSA Sec 464subSec 3 Paragraph

# B This revision changes the frequencywith which the Board will hold public hearingsforthe purpose of reviewing Maines water quality standards and revisingwhere appropriate fromat least once every three years to at leastonce every fouryears Federalregulations at40CFR §13120 require the frequency ofstatewater quality standards reviews and revisions as necessary to be at least once every three years In his letterofDecember 17 2003 Maines Assistant Attorney General indicated that thischange toa fouryearreview frequency in Section 7ofChapter245 appears tobe in conflict withEPAs regulations 

### We understand based on verbal confirmation byDEP staff and the State ofMaine Legislaturewebsite that with the passageofLB 1655 thethreeyear period ofreview in 381VIRSA Sec464 sub

### §3 Paragraph B has recentlybeen restored toensure consistency with the federal regulations As ofMarch 16 2004 Chapter551

### LD 1655 was signed bythe Governorand will be effective 90days aftertheendofthe current legislative session EPAs approval ofMaines surface water standards revisions does not extend towaters thatarewithin Indian territories and lands EPA istaking no action toapprove or disapprove the States standards revisions with respect to those waters at thistime EPA will retain responsibilityunderSection 303d forthose waters 

### My staffand I look forward to continued cooperationwith the

### MEDEP in exercisingour shared responsibilityofimplementing the waterquality standard requirementsunderthe 

## CWA Ifyouhave any questions on these issues please contact Steve Silva Director of EPA New England Maine Program at6179181561

Sincerely 

# giA6 Linda

# M Murphy Direc or Office ofEcosystem Proteetion

Enclosureco Androw Fisk

### MEDEP David Courtemarich

### MBDEP Brian Kavanalt

### MEDEP VernonLang

### USFWS MaryColliganNMYS PeterColossiNMFS EdwardHanlonEPA

### HQAttachment 

### AtoApril 142004 letterfromEPA to

### MBDEP

Comments on Chapters forwhich Water QualityStandards Revisions are Approved
1 Chapter227 An Actto ListAgriculture as aDesignated Use in Water Quality Standards
Chapter227 adds agriculture as adesignated use toMaines freshwateruse classifications

# AAABCOPA This revision is consistent with Section 

## 303e2A ofthe Clean Water Act and40CFR§13110a which explicitly list agriculture as ausethat states are to consider when designating uses EPAwould like to point out that listing agriculture as adesignated use inwaterquality standards setsthe goal thatthewater is tobeofsufficient quality to support agricultural uses ofthat water Anydetermination to allow the withdrawal ofwater foragriculture should only bemade
after fUll consideration ofthe existing usesand otherdesignated usesofthewaterbody the applicable physical chemical and biological criteriaandMaines antidegradation provisions Forexample Class

### AAwaters are defined asfree flowing and natural and are recognized byMaine as Outstanding National Resource Waters

## ONRW

2 Chapter317AnAct to Reclassify Certain Waters ofthe State
Chapter317 upgrades the use classification fornumerous waterbody segments Those revisions are consistent with the

### CWA because in all cases thewaters designated use goals continue tobeconsistent with the goal usesofthe

### CWA atsection 

### 101a2 and
areupgraded tosubcategories ofthose usesthat require morestringent criteria

Provisions in Chapter317Sec638

### MRSA §467 sub§4

## A13 concerning license limits forresidual chlorine and bacteria arenotwater quality standards and therefore are not subject toBPA action under Section 303c oftheAct

JAdalaIFY041EPA RIWTQA2003WQS rotwANIBWQSApprovalLttier03414 04wpdUNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1
1 CONGRESS STREET SUITE 1100 BOSTON MASSACHUSETTS 021142023

January252905 Dawn GallagherCommissioner MaineDepartment ofEnvironmental Protection
It17StateHouse Station Augusta Maine 043330017 SUBJECT EPAReview of2004submittedWater Quality Standard Revisions
DearCommissionerGallagher

Thisis in response toyourMay 142004 request forEnviromnental Proteetion Agency 

### EPAapproval ofstatutoryand regulatory amendments ofthe surface water quality standards administeredbytheMaine Department ofEnvironmental Protection

## DEP Bureau ofLand Water Quality These amendments wore certified byMaines Assistant Attorney General in the Natural Resources Division ashaving been duly adopted pursuant to Statelaw EPA has completed its reviewofthese amendments as required by§503e ofthe Clean WaterAct 33

## USC§1313c Jampleased to approve mostofthechanges asdescribed flu titer below

Icongratulate you andyour staff foravery impressiveeffort particularlywith regard to theadoption ofChapter 579ofDEPs Rules Classification AttainmentEvaluation Using Biological Criteria forRivers and StreamsAdoption ofthisrule is anoteworthy event in DEPPs long history asanational leader in the development and implementationof biological criteria This quantitative methodology forinterpretingMainesnarrative biological criteriaand aquaticlife uses forrivers and streams will strengthen Maines ability toprotect its waters and killer progress towards achieving thegoalsand objective oftheClean Water Act

Pursuant to

### §303c2 ofthe Clean Water Act and 40

## CFR Part131 and basedonmy determination thatthe approved revisions are consistent vvith therequirements of§303 of theAct Iherebyapprove the following revised standards
Legislative Chapter418 specifically§420

# 14A

# C

# D ami

# E which establishes mercuryambient water quality criteria to protect aquatic life and criteria forhuman health protection based on aconcentration in fish tissuethat are consistent withEPAs currentClean Water Act §304a criteriaguidance

P Legislative Chapter551 §6 which reversesan earlierchange to statuteand ensures thatahearing win beheld at leastonce every three years forthepurpose ofreviewing Maines waterquality standards and revising themas appropriate consistent with40 

### CFR§13120

Toll Free18083724341
Internet Address

### UAL htiplAyvwhopagovhetioni RooyclocirRseyeTablo PrtritsdwithVegetabte OH Bassi Inks xi InlaidPon Minimum SOYPoslconsurnsiLegislative Chapter551 §7 which corrects an errorwithtogard tothe boundary between freshwater and saltwater in the classification oftheDennys River
Legislative Chapter574 which revises Class

### AAand Class

### A to allow discharges intended to assist in the restoration ofendangered AtlanticSalmon

legislative Chapter663which upgrades theuse classification fornumerous water bodysegments In all oases both the previous andnow useclassifications provide for theMI goal uses specified at§101a2 ofthe Clean WaterAct

P 

### PEPRule Chapter579which provides aquantitative methodology forinterpreting Maines narrative biological criteria and aquatic life uses forrivers and streams EPAsapproval ofMaines surface water qualitystandards revisions does not extend to waters that are within Indian territories and lands EPA istaking no action toapprove or disapprove theStates standards revisions with respect tothose waters at thistime EPA
will retain responsibilityunder §303o and303dofthe Clean Water Act forthose waters The revisions summarizedabove are furtherdescribed inSummary Changes to Maines Water Quality Criteria

### MBDEP May 132004 In making thisapprovalwe have afew comments concerning Chapters 418and 574 sere attachment

# A

Also pleasenote thefollowing
Legislative Chapter418§420

# 1BBWe are still evaluating this provision to determine whether it constitutes arevisionofMaines water quality standards therefore we arenot yet taking aotion with respect to this provision

b Finallywehave determined that theremaining provisionsofChapter551 and the additional Chapters submitted by

### DEP are notnew orrevised waterquality standards and therefore arenot subject toEPAreview and action under§303e oftheClean Water Act seeAttachment

# B Mystaff and I look forward to continued cooperation with the

### MEDEP inexorcising our shared responsibilityofimplementing the water qualitystandards requirements under the Clean WaterAct Ifyou have anyquestions onthese issuesplease do not hesitate to call me at6179181501 orcontact Steve Silva Director ofEPANew Englands Water Qualityand Maine Programs at6179181561

Sincerely

Linda

# M Murphy Director Office ofEcosystem Protection Mu4471fri
a

2Enclosure
co AndrewFisk

### MEDEP David Courtematioh

### MBDBP Brian Kavanali

### MEDBP Vernon LangUSFWS MaryColliganNMFS PeterColosiNMFS DanaThomasBPA

### WQSB

3Attachment A toJanuary252005 MaineWater QualityStandardsApproval Letter

14 Chapter418AnAct toImplementtheRecommendations oftheDepartment of Environmental Protection onAmbientWater Quality Criteria forMercury EPA is approving Chapter418 Section 3s enactment of38

### MRSA §420l

## 13A

# C 

# D and

### By We are continuing to evaluate

### §4201BB todetermine whether it constitutes arevision ofMaines water qualitystandards thereforewe are not yet taking action with respect to this provision Subsection143A establishes the following ambient waterquality criteria for mercury

Freshwater Freshwater Saltwater Saltwater Human Acute Chronic Acute Chronic Health
Total 17 ughl 091 ugh l 21 net 

### 1110 oarnekg Mercury edible
tissue
The aquatic life criteria expressed astotal mercuryareequivalent toEPAs current

### CWA §304a recommendations fordissolved mercuryas contained in NationalRecommended Water Quality Criteria2002EPA822R02047 November2002 Maines aquatic life criteria are asprotective asEPAsrecorsunendations howeverEPAs 1995 Updates Water Quality CriteriaDocuments forthe Protection ofAquatic Life inAmbientWater EPA

### 820B96001 September 1996 contain anote thatthe freshwater mercurychronic
criterion might not adequately protect rainbowtroutcoho salmon and bluegill While EPA expects that water qualitybasedcontrol ofmercury inMainewill typically be drivenbythehuman health criterion thiscaution concerning aquatic life protection should beconsidered if the chronic freshwater criterion isapplied absentmorestringent actions tomeet thehuman health criterion EPAalso believes thatMaines tissue based human health criterion isas protective as EPAstissuebased criterionrecommendation of03 rriWkg formethyltnercury published onJanuary 82001 66FR13441359 Maines value is one third lowerthan

### EPAs and isexpressed in terms of total mercurywhile inethylmerouryand totalmercuryin
tissue areessentiallyequivalent in upper trophio level fishMaines expression of its criterion as total mercuryprovides equal orgreaterprotection Subsection1B

# Cprovides forthe establishment ofsitespecific bloaccumulation factors for

### imam+which isconsistent withEPAsallowance for modification ofits §304a guidance to reflect sitespecific conditions at40

### CFR§

### 13111b1ii
Subsection1B 03 directs

### MEDEP to establish a statewide bioaecumulaion factor 

### BAFwhich is protective of

## 95ofthe watersofthe stale In approving this provision EPAunderstands this statement was meant to allow use ofeither 1 the 95th

4upper confidence level on asingle mean pointestimate ofa

### BAF ifasingleBAP is appropriate forthestate or

### 2 the

### 95 percentile ofBAFs to protect

## 95ofthewaters if BAFs varywithwaters with the section regarding sitespecific BAFs providing fora higherBAP if appropriate toprotect specific waters

### May21 2004 responsefromDEP
toEPAquestions seeking clarification BPAbelieves thisapproach isconsistent with established methodologies used todevelop criteria and allowsMaine tobeappropriately protective ofall ofits waters
Subsection113E directsDEP to establish statewide ambient waterquality oriteria for mercury to protect wildlife which EPAsupports consistent with the goalsofthe

## CWA

Section 1ofChapter 418which enacts 38

### MRSA §413 sub§11 relates toNPDES permitting and is not considered tobeawater qualitystandard subject toEPA review and action under §303e ofthe

### CWA DEP in itsMay21 2004 response toEPAs questions seeking ciarifiention ofChapter418 clarified that references toantidegradation requirements highlight importantantidegradation considerations and do not override or conflictwith the antidegradation provisions at38

### MRSA §

### 4644F 2 Chapter 574 AnAct toAmend Water QualityLaws toAid inWild Salmon Restoration
Chapter 574revises Maines Class

### AAand Class

### Aprovisions to allowdischarges intended to assist inthe restoration ofendangered Atlantic Salmon Waters classifiedas AA inMaine areconsidered outstanding national resources andwater quality is tobe maintained and protected 38MRSA §

## 4644F2 We interpret maintained and protected tomean noneworincreased discharges to Outstanding National Resource Waters

### ONRWs and their tributariesthatwould lowerwater qualitywith some exception forlimitedactivities that result intemporaryand shortterm changes inwater qualityWater Quality StandardsHandbook Second EditionEPA8231394005a August1994 However the discharges that could be authorized byDEP based on Chapter 574mustbe fortheexpress purpose ofassisting inthe restoration ofendangered Atlantic salmon byrestoringwater quality that hasbeen degraded byarithropogenic activity The Chapter 574discharge provision is not an authorization tolower water qualityin

### ONRWs Further EPAbelieves that the Intent to restore natural ambientwater chemistrytoahl in the restoration ofendangered salmon isconsistent with the overall objective ofthe

### CWA at101a ThereforeEPA isapproving this limiteddischarge provision

5Attachment B toJanuary252005 Maine Water QualityStandards Approval Letter Except as noted inthe attached letter chapters listed below inthe first column inbold are acted upon within this letter Chapters listed in regular text and sections not included in the chapters listed inbold are notnow orrevised waterqualitystandards andtherefore
are notsubject toEPAreview and action under §303e oftheClean WaterAct

91 1iiiA° 

### iox iilogiltiiiirecliiwc20etgfircP10 $goikm

= itten f17

# N ntiS771A1241AiftIgt4112 

# 1

e f

# 4

ffiftleailttiwl Ch410 

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6Exhibit 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

# 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

# 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

2The 1987 Tribal census noted 

### 1852 members

3011 

# 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 

# Forgrants to States and to interstate agencies to assist then in administering programs for the 

### prevention reduction and eliniration of 

### pollution including enforcement directly orthrough appropriate State law enforcement officers or

### agencies 33

# USC

5 

### 1256

31

# 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

# 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 fromthose 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

# 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

# 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

# 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 non

### Tribal 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

# 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

# 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 Commissionerof 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

38I 

# 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 

### Tribal

## State 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 

### Tribal

## State 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 Tribal

## State 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

# 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 

### Tribal

## State 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 Tribal

### State 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

# 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

# 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

# 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

44

# 18
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

45

# 19 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



### 46

# 20

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

47

# 21
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 multi

### media 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

48

### 722

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

49