## _1


## _ 

## PUBLIC 

# COMMENTS OF

# THE PENOBSCOT NATION REGARDING MAINE’S

APPLICATION 

# FORAPPROVAL OF

# WATER QUALITY STANDARDS 

# FOR APPLICATION 

# WITHIN 

# THE PENOBSCOT INDIAN 

# RESERVATION September 

## 13 2013 The Penobscot Nation the “Nation” or the “

## Tribe” through counsel hereby submits its written Public 

## Comments to the United States Environmental Protection 

### Agency the “

## EPA” on the request of the State of 

### Maine the “State” or “

## Maine” to the 

## EPA forapproval within the Nation’s Indian territory of a set of water quality standard 

# WQS revisions regarding the 

## human health ambient water quality criteria of the allowable levels in surface waters forthree toxic pollutants arsenic acrolein 

### and phenol under section 

## 303

# c of the Clean 

### Water 

## Act 33

# US

# C 1313 

# BACKGROUND Rather than fully restate relevant background information that the 

## EPA is already familiar

### with the Nation incorporates herein 

### by reference its Public 

## Comments dated February 

# 9 2000 and all attachments thereto and its Supplemental 

## Comments dated 

### August 

## 21 2000 and all attachments thereto 

### on the Application of the State of 

### Maine to the 

## EPA forthe Authorization to Administer the 

## NPDES Program in Indian territory 

# “NPDES Public 

## Comments” 1 

### The Penobscot Nation 

### summarizes some of that 

### background

1 All of this material

### was eventually compiled as part of the Joint Appendix forthe matter of 

### Maine

## v Johnson before the

# US Court ofAppeals forthe First Circuit and the Nation incorporates that Joint Appendix by reference herein as well as its 

## own submissions therein 

### The Nation references certain material here in accordance with the exhibits it provided as part of the 

## NPDES Public 

### Comments All of the facts stated herein in reference to the 

## NPDES Public

## _2


## _ 

# 1 The Penobscot Nation is a federally recognized Indian tribe

## which since aboriginal 

### times has occupied the Penobscot River watershed 

### and relied 

### upon its water 

### and resources for physical cultural and spiritual sustenance 

# 2 The 

## EPA has never approved any of Maine’s 

# WQS in the Penobscot Indian Reservation 2 

# 3 The Penobscot Nation has twice requested the

## EPA to promulgate federal water quality standards forthe Penobscot 

### River but the 

## EPA has not acted 

### on those requests See Exhibit 

### 13 to 

## NPDES Public 

## Comments 

# 4 The United States 

### Department of the Interior

# “DOI” is charged with authority to administer the 

### Maine Indian Claims Settlement Act of 

### 1980 the “Settlement 

## Act” and is therefore afforded deference in its views 

## on rights and authorities thereunder 

# 5 DOI has informed the

## EPA that 

# a pursuant to the Settlement 

## Act Congress confirmed the right of Penobscot Nation tribal 

### members to take fish

### from the Nation’s reservation waters in the Penobscot River for their sustenance as “

### an expressly retained sovereign activit

# y a reservation 

### from the



### Commentscontinue today If the 

## EPA would like the Nation to resubmit copies of any specific materials

### made part of the prioragency record or to otherwise verify facts set forth herein the Nation will to do 

### so 2 Currently before the 

## EPA is a request forthe approval of

# WQS with regard to three pollutants arsenic acrolein and phenol 

## No other

# WQS are currently before the 

## EPA for approval in Indian territories in 

### Maine

## _3


## _ aboriginal rights given 

### up by the Penobscot Nation,” Exhibit 

### 17 to 

## NPDES Public 

## Comments 

# b the Penobscot Indian Reservation in 

### which this protected sustenance fishery is located includes the waters surrounding Indian Island the principal residence of Penobscot Nation 

## members and other islands northward thereof 

# id c “

## when taking federal actions 

### which affect tribal resources 

### EPA’s fiduciary obligation to the Penobscot 

### Nation requires it to first protect Indian rights 

### and resources,” 

## id 

# d the Penobscot Nation has “the right to take fish and the right that others not unreasonably pollute the waters” in its reservation 

### id at

# 67 e the Nation’s federally protected “right to take fish for individual sustenance within the boundaries of the reservation 

### demands that there be sufficient fish to take 

### and that such fish be safe to eat,” Exhibit 

### 14 to 

## NPDES Public 

## Comments 

## f the 

## EPA “

### must ensure that environmental degradation such as exists 

### on the Penobscot 

### River not be allowed to impairthe Nation’s fishing rights,” 

## id 

# g “

### due to the island location of its reservation the Penobscot Indian Nation is subject to a disproportionate burden of the risks and the 

### harms occasioned 

### by pollutant dischargers]” into the Penobscot 

### River 

## id

## _4


## _ 

# 7 The 

## EPA acknowledges that it has a trust obligation to protect the Penobscot Nation’s sustenance fishery in the Penobscot 

### River 

## See 

# e

# g Exhibit 

### 15 to 

## NPDES Public 

## Comments 

# 8 The Nation’s 

### members rely

### upon that fishery for their individual sustenance 

### and forceremonial 

### purposes central to the Penobscot culture 

## See

# e

# g Exhibits 

# 1 2 4 

# 5 6 10 

# 14 16 and 19 to 

## NPDES Public 

## Comments 

# 9 Maine rejects the 

### view that the Penobscot Nation’s reservation extends into the Penobscot River

## and therefore includes a sustenance fishery therein that deserves 

### any safeguards to ensure that the fish are safe to eat or can sustain tribal 

## members See Letter 

### from William Schneider submitted herewith see also Maine’s Briefs to the

# US Court of Appeals forthe First Circuit in the matter of 

### Maine 

# v Johnson 

# LEGAL 

# ARGUMENT Overview Congress confirmed that the Penobscot Indian Reservation includes a fishery within the Penobscot River to sustain the 

### members of the Penobscot 

### Nation This 

### was a fundamental purpose of the reservation 

## Assuch the Nation’s reservation includes not only the fishery for use 

### by the Tribe’s 

## members but a fishery that 

### must be of a quality to provide 

### them with sustenance 

## By virtue of Congress having set aside such a reservation for the Penobscot 

### people they are entitled to water quality within the Penobscot River surrounding their reservation islands that will support fish that they 

## mayconsume for their subsistence See

# USv Adair723

# F2d 

## 1394 

## 141415 9th 

### Cir

## 1984 The 

## so

## _5


## _ called Winters doctrine grounded in Winters

# v United States 

### 207 

# US 564 

# 1908 requires nothing less See 

### Adair 723 

# F2d at 

## 1412 

## 15 States lack jurisdiction in Indian reservations absent express authorization 

### by Congress 

# E

# g Wisconsin 

# v

# EP

# A 266 

# F3d 

## 741 747 7th 

### Cir

# 2001 State of 

### Washington Dep't of 

### Ecology 

# v

# US

# EP

# A 752 

# F2d 

## 1465 1469 9th 

### Cir

## 1985 citing 

## cases Pursuant to the Settlement 

## Act Congress granted 

### Maine certain regulatory jurisdiction not granted to 

### most other states but 

## made perfectly clear that with regard to the Penobscot 

### Nation “internal tribal matters,” including the aboriginal right of tribal 

### members to take fish

### from the Penobscot Indian Reservation “for their individual sustenance,” “shall not be subject to regulation 

### by the state.” 

### 25

# US

# C 1721

# b 1725

# h ratifying 

### 30

# MRS

# A 6206

# 1 state 

## may not regulate “internal tribal 

### matters” 

## 6207

# 4 Nation has exclusive jurisdiction over sustenance fishing other than limited residual authority granted to 

## Maine Here the State asks that 

## EPA approve a set of

# WQS that purport to set an acceptable to the State cancer risk

### and an acceptable to the State fish consumption rate for the sustenance of Penobscot Tribal 

### members in the exercise of the Nation’s

“expressly retained sovereign activity” within the Penobscot Reservation 

## However the State has 

### no jurisdiction to regulate the Nation’s sustenance fishery or the internal tribal matter of 

### what is an acceptable cancer risk for tribal 

### members eating fish out of the Tribe’s reservation 

### waters Under the Clean 

### Water Act and its implementing regulations 

## EPA cannot approve 

### any Water Quality Standards if they are insufficient to “protect the designated water

## _6


## _ uses,” 

## which with regard to Indian territories in 

### Maine include protection of the 

## human health of a sensitive subpopulation of subsistence fishers 

### members of the Penobscot 

### Nation 33

# US

# C 1313

# c

# 2

# A40

## CFR 131.5

# 2 In asking 

## EPA to approve its water quality standards 

### Maine is asking the 

## EPA to sanction the State’s assertion of 

### what is an acceptable cancer risk

### and fish consumption rate for the sustenance of 

### members of the Penobscot 

### Nation This is plain 

### from the language in the State’s

# WQS submittal

“

### Using a cancer risk factor of 

## 10E

# 6 Maine maintains that the 32.4 

## gramday fish consumption rate is 

# ... protective of the 

### higherend sensitive subpopulation of Native 

### American” anglers based 

### on a study expressly criticized 

### by the tribe in the 

### comment process See 

## DEP Response to 

## Comments at 

### 20 

## May 25

# 2012 The State then goes 

### on to conclude that “

### Maine believes that the validity of the study 

### and the protective nature of its revised fish consumption rate for sensitive subpopulations 

### 138 

## gramsday are demonstrated 

## Id at 

## 21 Such a determination is a direct regulation of the aboriginal right of the Nation’s 

### members to take fish fortheir individual sustenance an internal tribal matter over 

### which the State obtained 

### no jurisdiction 

### from Congress under the Settlement 

## Act The 

## EPA therefore cannot approve Maine’s 

### Water Quality Standards in the Penobscot Indian Reservation in particular the sustenance fishery Further pursuant to the Constitution the federal 

### government including the

# EPA holds a trust responsibility to protect the authorities and resources of the Penobscot 

### Nation That trust responsibility cannot 

### be delegated to 

## Maine Indeed Maine refuses to 

### even recognize the existence of the Nation’s reservation sustenance 

### fishery The

## _7


## _ EPA’s approval of Maine’s

# WQS with respect to the Nation’s reservation sustenance fishery

### would therefore constitute an unlawful delegation of its federal trust responsibility to 

## Maine a delegation that 

### would be a breach of its trust responsibility 

### and an action that is constitutionally suspect 

## I The EPA’s Constitutionally

### Based Trust Responsibility 

### Requires It to Reject 

### Maine’s Application Water quality associated with the Nation’s sustenance fishery in the Penobscot Indian Reservation is a matter of physical 

### and cultural survival for the Penobscot 

### people The 

## EPA readily recognizes that Indian tribes like the 

### Nation “see protection of the reservation environment as essential to the preservation of the reservations themselves Environmental degradation is 

### viewed as a

### formof further destruction of the remaining land 

### base and pollution prevention is 

### viewed as an act of tribal selfpreservation that cannot be entrusted to others.” 

# EPA Federal Tribal 

### and State Roles in the Protection 

### and Regulation of Reservation Environments July 

## 1991 

# “

# Clean 

### water including critical habitat 

## i

# e wetlands bottom sediment 

### spawning beds 

# etc is absolutely crucial to the survival of Indian reservations.” 

### 56 

## Fed 

## Reg64,876 64,878 

## Dec 12 

# 1991 This is plainly true for the Penobscot Nation’s reservation sustenance fishery 

### The United States has a trust obligation to Indian nations of the highest 

### order which necessarily includes the protection of their reservation resources here the Nation’s sustenance fishery in the Penobscot 

### River This trust responsibility has its origins in the constitutional responsibility for Indian affairs lodged in Congress 

### and in Chief Justice Marshall’s foundational Indian 

### law decisions interpreting that responsibility See

## _8


## _ Worcester 31

# US at

## 551 52 555 protection that United States 

### owes to Indian nations involves “a nation claiming 

### and receiving the protection of

### one morepowerful not that of individuals abandoning their national character 

### and submitting as subjects to the laws of a 

### master” see also 

### Oneida County 

# v Oneida Indian 

### Nation 470

# US226 247 

## 1985 discussing trust doctrine 

### and its grounding in the Constitution 

## As Senior Ninth Circuit Judge William 

### Canby has explained 

# “

# one of the basic premises underlying the constitutional allocation of Indian affairs to the federal 

### government was that the states could not be relied 

### upon to deal fairly with the Indians.” 

## CanbyAmerican Indian 

## Law West

# 2005 This is a consideration of critical importance to the matter at 

## hand The Ninth Circuit through Judge 

## Canby elaborated 

### upon this constitutionally based trust responsibility in State of

### Washington Dep't of Ecology 

# v

# US

# EP

# A752 

# F2d 1465 9th 

### Cir

## 1985 Accompanying the broad congressional 

### power over Indian affairs under the Constitution is the concomitant federal trust responsibility toward the Indian tribes That responsibility arose largely

### from the federal role as a guarantor of Indian rights against state 

### encroachment 

# We must presume that Congress 

### intend

# s to exercise its 

### power in a 

### manner consistent with the federal trust obligation Respect for the long tradition of tribal sovereignty 

### and self

### government also underlies the rule that state jurisdiction over Indians in Indian country will not be easily implied 

### Vague or

### ambiguous federal statutes 

### must be 

### measured against the “backdrop” of tribal sovereignty especially 

## when the statute affects an area in 

### which the tribes historically 

### have exercised their sovereign authority or contemporary federal policy encourages tribal self

### government 

## Id at 

## 1469

## 70 The Court

### went on to hold that the 

### EPA’s trust responsibility warranted excluding Indian lands 

### from an otherwise approved state hazardous waste 

### program In accordance with the federal trust responsibility to protect tribal resources and authority

## _9


## _ “the state 

## was required to yield to an exercise of jurisdiction 

## by the federal government.” 

## Id at 

## 1470

## 71 The 

## EPA has the authority under the Clean 

### Water Act to promulgate federal water quality standards for the Penobscot Indian Reservation to protect the Nation’s sustenance fishery or to approve the Tribe’s 

## own promulgated water quality standards to refrain 

### from approving 

### Maine’s and to take measures to protect the Tribes’ sustenance fishery in the 

### meantime That is precisely 

### what is required 

### by the 

### EPA’s constitutionally based trust obligation to the Penobscot Nation 

### here See Wisconsin 

# v

# EP

# A 266 

# F3d 

## 741 747

7th 

### Cir

## 2001 

# Wood 

# J“The Constitution vests the Federal 

### Government with exclusive authority over relationswith Indian tribes.” 

# US ConstArt I 

# 8 cl

# 3 In fact in the absence of tribal 

## TAS status the

## EPA and not the state of Wisconsin might well be the proper authority to administerClean 

### Water Act programs for the reservation” 

### Indeed were the 

## EPA to approve Maine’s

# WQS it 

### would unlawfully abdicate its trust responsibility 

## byempowering Maine to control tribal resources 

## when Maine does not 

### even recognize the existence of the Nation’s reserved sustenance fishery This 

### would be a breach of the 

### EPA’s trust responsibility to the Tribe 

### and a constitutionally suspect undertaking 

### because by virtue of the Constitution the 

## EPA may not relinquish its trust responsibility to the Nation 

### and leave it at the 

### mercy of a hostile state 

# A Clarification of the 

### Penobscot Nation’s Position 

## As an aside the Penobscot Nation sees fit to 

## make perfectly clear its position 

### here given the misstatements that have been 

## made by Maine and pollution dischargers into the

## _10


## _ Penobscot River in other contexts the Nation claims 

### no authority to regulate the discharges of paper mills or municipalities into the Penobscot 

### River 

## The First Circuit’s decision in 

### Maine 

# v Johnson established that 

### Maine has that authority 

### The Nation’s position here is that 

### Maine does not have authority to 

### impose its 

## own 

# WQS within the Penobscot Nation’s sustenance fishery 

### and that such authority 

### must reside with federal 

### government as the Tribe’s trustee in the first instance or eventually with the Penobscot 

### Nation 

## By asserting that such authority 

### must reside with the 

## EPA in the first instance 

### and 

## may ultimately reside with the Penobscot 

### Nation the Tribe is not asserting regulatory authority over 

### any pollution dischargers into the Penobscot 

### River The ability of the Nation to promulgate water quality standards is a long 

### ways off but that opportunity 

### must be preserved 

### because as explained 

### more fully 

## below it involves the exercise of the Nation’s inherent sovereign authority 

### which Congress did not divest 

### by the terms of the Settlement 

## Act and which is expressly excluded 

### from state authority as an “internal tribal matter.” 

### But if 

### and 

## when the Nation 

### were to promulgate its 

## own water quality standards the Nation 

### would not thereby regulate any pollution dischargers in the 

### River 

## As the Seventh Circuit has explained 

### The tribe cannot 

### impose any water quality standards or take any action that goes 

### beyond the federal statute or the 

### EPA's 

## power To the contrary the

## EPA supervises all standards 

### and permits Far

### fromallowing a tribe to veto a state 

### permit granting

## TAS status to tribes in recognition of theirwater quality standards simplyallows the tribes 

### some say regarding those standards 

### and permits It is quite possible that in particular

### cases perhaps through the vehicle of the statutory mediation 

### mechanism the

## EPA may require 

# a tribe’s 

### more stringent standards to give 

## way to upstream discharge 

### and development Whether the tribe or the state ultimately “wins” in the dispute it is the 

# EPA not the tribe or the state that has the ultimate authority to decide whether or not to issue a 

### permit

## _11


## _ Wisconsin 

# v

# EP

# A266 

# F3d at

## 74950 emphasis 

## added II Congress

## Did Not Grant 

## Maine Authority 

## To Promulgate 

## Water Quality 

### Standards 

## Forthe Nation’s Reservation 

### Sustenance Fishery 

## Which the State Refuses to 

### Recognize While it is 

### no doubt true that the relationship 

### between the Tribes 

### and Maine is unique because of certain express divestitures of tribal authority 

### and grants of state authority established 

### by Congress in the Settlement 

# Act3 the 

### framework for understanding the effect of the statutory terms is not 

### unique Such framework is established under federal Indian 

## common law and the Constitution 

### and must be considered prior to 

### any examination of the Settlement 

### Acts See Penobscot Nation

# v Fellencer 

### 164 

# F3d 

## 706 709 1st 

### Cir

# 1999 cert 

### denied 527

# US 1022 

## 1999 citing 

# US Const art 

## I sec

# 8 cl

# 3 State of 

### Rhode Island 

# v Narragansett Indian 

### Tribe 19 

# F3d 

## 685 701 1st 

### Cir

# 1994 The essential features of this

### framework are

### wellestablished 

# 1 The powers of Indian tribes exist 

### by virtue of their original status as 

### governments predating the 

### Republic Narragansett Indian Tribe at 

## 694 Bottomly

# v Passamaquoddy Tribe 599

# F2d 

## 1061 1065 1066 1st 

### Cir

## 1979 They are not granted 

### by the federal 

### government 

## Id at 

## 1065 Rather they are the “inherent 

### powers of a limited sovereignty 

### which has never extinguished.” 

## Id at 

## 1065 66 quotations citations 

### and emphasis 

### omitted These attributes of sovereignty exist “only at the sufferance of 3 

### See 

## e

# g 25

# US

# C 1725

# d divesting Tribes of inherent sovereign immunityfrom 

### suit 30 

# MRS

# A 6206

# 1 imposing municipal like liabilities upon the 

### Tribes 25

# US

# C 1725

# c divesting Tribes of protections against state jurisdiction over crimescommitted within their territories 

### Compare Canby 

## AMERICAN INDIAN 

# LAW West 

## 2005 at

## 72104 describing attributes of tribal sovereignty and attendant constraints on state authority

## _12


## _ Congress” 

### and are “subject to complete defeasance 

### But until Congress acts the tribes retain their existing sovereign powers.” 

## Id at 

### 1066 quotations citations and emphasis 

### omitted 

# 2 Since the 

### power to divest Tribes of their attributes of sovereignty rests exclusively with 

### Congress these attributes cannot be lost 

### by implication 

### by acquiescence to state 

## power orthrough 

## nonuse 

# A tribe’s “sovereign 

## power even 

## when unexercised is an enduring presence 

### and will 

### remain intact unless surrendered in unmistakable terms.” 

### Merrion

# v Jicarilla 

### Apache Tribe 455

# US 130 148 

## 1982 Accord Narragansett Indian 

### Tribe at

## 701 02 Bottomly at 

## 1066 And such 

### power carries with it

“a historic 

### immunityfrom state 

### and local control.” 

## New Mexico 

# v Mescalero 

### Apache Tribe 462

# US 324 332 

## 1983 

# 3 As explained 

## above since Indian tribes are considered “

### wards” of the federal 

### government there exists a unique trust relationship between the United States 

### and tribes grounded in the Constitution That federal trust responsibility includes a duty to protect Indian tribes

### and their resources 

### from encroachments 

### by states See Worcester 

# v Georgia 31

# US 6 

## Pet 515 

## 56061 

## 1832 Washington Dep’t of 

### Ecology 

# v EPA 752 

# F2d at 

## 1470 There is a “deeply rooted policy in our Nation’s history of leaving Indians free 

### from state jurisdiction 

### and control.” 

### Oklahoma Tax 

## Comm’n

# v Sac Fox Nation 508 

# US 114 123 

## 1993 citations 

### and quotations 

### omitted 

## Thus 

# “ i n the absence of federal authorization all aspects of tribal sovereignty 

## are privileged 

### from diminution 

### by the States.” Three Affiliated Tribes of 

## Ft Berthold

# v Wold Eng’g 476 

# US 877 891 

## 1986

## _13


## _ 

# a The federal trust doctrine also requires the federal courts to observe that ordinary rules of statutory construction “

### do not have their usual force in cases involving Indian law.” 

### Montana 

# v Blackfeet Tribe of Indians 

### 471

# US 759 766



# 1985 Accord Fellencer at

## 709 

# “

# Statutes or treaties relating to the Indians shall be construed liberally and in a

## non technical 

### sense as the Indians 

### would naturally understand 

## them and never to the Indians prejudice.” 

### Passamaquoddy 

# v Morton 528 

# F2d 

## 370 380 1st 

### Cir

## 1975 Accord Narragansett Indian 

### Tribe at 

## 702 

# 4 Since the sovereignty held 

### by tribes is fragile in the face of external pressures 

## and pursuant to the Constitution Congress has exclusive 

### and plenary authority over Indian affairs absent a crystal clear directive 

### from Congress the federal courts 

### and agencies 

### mustavoid undermining the traditional attributes of tribal authority or allowing states to 

### undermine such authority 

## See 

# e

# g Kiowa Tribe of

### Oklahoma 

# v Mfg Techs Inc 523

# US 751 

## 75860 

# 1998 New Mexico 

# v Mescalero 

### Apache Tribe 462

# US 324 

## 331 32 

# 1983 Santa Clara 

### Pueblo 

# v Martinez 436

# US49 60 72 

# 1978 Williams

# v Lee 358 

# US217 

## 219220 

# 1959 Thus when Congress is silent

### on whether a particular attribute of tribal sovereignty 

### remainsthe “proper inference is that the sovereign 

### power remains intact.” 

### Merrion 455

# US at 

### 148 

# n14 

# 5 Congress is 

### presumed to have 

## known this

### wellestablished 

### framework upon compromising the Tribes’ historic land claims against 

### Maine and enacting the Settlement 

## Act See 

### Goodyear Atomic

## Corp

# v Miller

### 486

# US 174 

## 18485 

## 1988 Akins 

# v Penobscot 

### Nation 130 

# F3d 

## 482 489 1st 

### Cir

## 1997 Indeed citing directly to the First

## _14


## _ Circuit’s decision in Bottomly

# v Passamaquoddy Tribe 599

# F2d 

### 1061 1st 

### Cir

## 1979 in its final committee reports Congress said that the Tribes 

## came to the Settlement 

### Act in 

### 1980 “

### possess

## ing inherent sovereignty to the 

### same extent as other tribes in the United States” 

### and were “entitled to protection under the federal Indian 

## common law doctrines.” 

# SRep 

# No96957 at

# 1314

# HRRep 

# No 961353 at

# 1314 reprinted in 

### 1980 

# US

# CC

# AN 3789 90
Given this

### framework the first question to ask with respect to Maine’s asserted authority to establish standards governing the Nation’s sustenance reservation fishery is whether an attribute of the Tribes’ inherent sovereignty is at stake 

## and if 

## so whether Congress unequivocally destroyed it 

### by giving it to 

## Maine 

# A Congress Did Not Divest the 

### Penobscot Nation of Its Essential Authority to Protect the 

### Sustenance Reservation Fishery

## and Turn that Authority 

## Over to 

## Maine The attributes of sovereignty that Tribes possess absent their divestment 

### by the federal 

### government are 

### wellestablished see Aroostook 

## Band of 

### Micmacs 

# v Ryan 404 

# F3d 

## 48 62 1st 

### Cir

# 2005 and Maine’s request forapproval of its 

# WQS in the Nation’s sustenance fishery implicates one at the 

### core the inherent authority of tribes to address reservation intrusions that directly threaten the “health orwelfare of the tribe.” 

## See 

# e

# g Montana 

# v United States 

### 450

# US 544 

## 56566 

## 1981 Wisconsin 

# v EPA 266

# F3d at 

## 750 City of Albuquerque 

# v Browner97 

# F3d 

## 415 423 10th 

### Cir

# 1996 See also Fellencer at 

### 710 quoting 

## Montana Water rights 

### and governmental jurisdiction are

“

### two critical elements necessary for tribal sovereignty.” City ofAlbuquerque 

# v

## _15


## _ Browner97

# F3d 

## 415 418 10th 

### Cir

## 1996 emphasis

## added This 

### agency action clearly implicates this core matter of tribal sovereignty See generally 

## Edmund 

## J Goodman Indian Tribal Sovereignty 

### and Water Resources 20 

## JLAND RESOURCES 

## ENVTL

# L 185 192 

# 2000 More specifically this case involves the regulation of a matter of the very survival of an unique Indian tribal 

### people what water quality standard will protect the Nation’s sustenance fishing in the Penobscot River both in terms of 

# a the fish consumption rate 

### and 

# b what is an acceptable cancer rate for tribal 

### members engaged in fishing in their aboriginal 

### homeland the Penobscot 

### River It is 

### no exaggeration to say that this case is pivotal for the 

## longterm health of this reservation fishery set aside for the sustenance of Penobscot tribal 

### members and it therefore affects the very cultural 

### and spiritual 

### wellbeing of the Penobscot 

### Nation 

## So framed the question presented is whether 

### Congress pursuant to the Settlement 

### Acts unequivocally abrogated the Tribe’s inherent authority to protect this sustenance fishery 

### and unequivocally turned that authority over to 

## Maine Absent any such clear intent 

### on the part of 

### Congress this 

### Agency must not give that authority to 

## Maine In the Settlement 

## Act Congress did not divest the Nation of this sovereign authority 

## On the contrary Congress recognized that the Nation’s sustenance fishing right is an expressly retained sovereign authority 

### and the United States 

### has time 

### and again confirmed it as 

### such 

## See 

# e

# g Exhibit 

### 17 to 

## NPDES Public 

## Comments Indeed upon enacting the Settlement 

## Act Congress confirmed the Penobscot Nation’s aboriginal fishing rights within the Penobscot River 

### by ratifying 

### 30

# MRS

# A 6207

# 4 which provides in pertinent part that “notwithstanding 

### any law of the State the 

### members of

## _16


## _ the Penobscot Nation 

## maytake fish within the boundaries of their Indian 

### reservation for their individual sustenance.” 

### 25

# US

# C 1721

# b If this express confirmation of authority 

### were not 

### enough the legislative history of the Settlement 

### Act makes clear that the Tribe’s separate sovereign authority including the 

### power to setwater quality standards sufficient to protect the health of tribal 

### members engaged in the taking of fish for their individual sustenance as protected 

### by federal 

### law including the Clean 

### Water 

## Act was retained 

### by the tribe 

### The final Senate 

### Committee Report 

### on the Settlement 

### Act explained that Congress recognized “the independent source of tribal authority that is the inherent authority of

## a tribe to be self

### governing Santa 

### Clara Pueblo 

# v Martinez 436 

# US 49 1978).” Senate Report at 

### 29 emphasis 

## added It further explained that the Nation’s qualified agreement to adopt certain State laws as their 

# own other than with respect to internal tribal matters such as regulation of the sustenance fishery see 30

# MRS

# A 6202 6206 

# 6207 would “not violate the principles of separate sovereignty.” Senate Report at 

### 29 emphasis 

## added The report continued 

# “though identical in 

### form and subject to redefinition 

### by the State of its 

### laws the laws are those of the tribes.” 

## Id citing 

### Wauneka 

# v Campbell22 Ariz

## App 287 526

# P2d 1085 

# C

# A1974 The Senate 

### Committee Report which is authoritative see Akins 

# v Penobscot 

### Nation 130 

# F3d 

## 482 489 1st 

### Cir

## 1997 cannot be ignored Congress intended 

### Wauneka 

## v Campbell to fully informthe terms of the Settlement 

## Act In 

### Wauneka 

# v Campbell the Arizona Court of Appeals held that the State of Arizona could not enforce its 

### Motor Vehicle Safety Responsibility 

## Laws against Indians 

### on the 

### Navajo reservation

## _17


## _ notwithstanding the fact that the 

### Navajo Tribal 

### Code required all 

### Navajo Indians residing 

### on the 

### Navajo Reservation in Arizona to obtain an Arizona Driver’s license Noting that the 

### Navajo Nation within its reservation 

### had police 

### power authority to govern the activities of tribal 

## members the court held that imposition of Arizona’s 

### Motor Vehicle Safety Responsibility 

## Laws would interferewith the Nation’s right to self

### government The Nation’s adoption of the Arizona Driver’s licensing requirements as its 

## own did not prevent it 

### fromenacting laws 

### more suitable to its territory 

### and 

## members nor did it constitute consent to allow state jurisdiction over the reservation See 

## id at 

## 1088 89 As the court explained 

### The Tribe in requiring its 

### members 

## who drive 

### on the Reservation to be licensed 

### by the state in 

### which they live insures that those driving 

### on the Reservation 

### have demonstrated certain minimal skill 

### and knowledge relative to the operation of 

### motorvehicles 

### The tribal driver’s license statute has not ceded either civil or criminaljurisdiction over Reservation events to Arizona courts or administrative agencies 

## Id at 

## 1089 This is of 

### no small significance It 

### shows that 

### by virtue of

### 30

# MRS

# A 6204 as ratified 

### by Congress Congress did not supplant the Penobscot Nation’s sovereign authority 

### by ensuring that 

### Maine’s law would apply to the Nation 

### and to its resources 

### Rather section 

### 6204 simplyconfirmed that the Tribe 

### would adopt State 

### law as its 

## own at least to the extent that internal tribal matters are not affected In other 

### words the Nation is free to use state 

### law standards as a floor 

### and to provide 

### more legal protection 

### where

“internal tribal matters” are at stake In short for the Penobscot 

### Nation section 

### 6204 merely confirms that the Nation will adopt 

### Maine law as its 

## own but it does not

## _18


## _ expressly 

### imposeany form of state regulatory authority 

### upon the Tribe or its natural resources In addition at the time of the Settlement 

## Act Congressthrough its final committee reports addressed as “Special Issues” the Tribes’ fears that the Settlement Acts 

### would amount to a “destruction” of their “sovereign rights 

### and jurisdiction.” 

# SRep 

# No96957 at 

### 14 emphasis

## added 

# HRRep 

# No 961353 at

# 1415 reprinted in 

### 1980 

# US

# CC

# AN 3786 3790 emphasis 

## added Congress assured the Tribes that they 

### came to the Settlement 

### Act possessing the attributes of “inherent sovereignty to the 

### same extent as other tribes in the United States,” and that under 

### Bottomly they 

### were “entitled to protection under the federal Indian 

## common law doctrines.” 

# SRep at

# 1314 emphasis 

## added 

# HRRep at

# 1314 reprinted in

# US

# CCA

# N at 

## 3789 90 

## same One “Special Issue” that 

## was expressly addressed 

### was the Tribes’ fear that the Settlement 

### Act would destroy their fishing rights Congress assured the Tribes that this

## was not the case 

### and that their sustenance fishing right

## was an 

### example of an “expressly retained sovereign activit y].” 

# SRep at 

## 15

# HRRep at 

## 15 reprinted in 

### 1980

# US

# CC

# AN at

## 3791 Again by its plain 

### language the Settlement Acts confirmed that the 

### members of each Tribe 

### would be able to take fish “for their individual sustenance,” within the Tribes’ respective reservation boundaries 

### 30

# MRS

# A 6207

# 4 ratified by 

### 25

# US

# C 1721

# b Nothing could be 

### more at the core of this Tribe’s existence than the reliance of its tribal 

### members on their ability to take sustenance culturally spiritually 

### and physically 

### from the Penobscot 

### River 

## To turn over the regulation of that matter to 

### Maine would

## _19


## _ violate the preservation of this right for the Tribe to govern first pursuant to 

### Maine law 

### and second where internal tribal matter are implicated 

### beyond the protections that 

### Maine law provides 

### The word “sustenance” is defined as “

### means of sustaining life nourishment.” 

## RANDOM HOUSE DICTIONARY 

## OFTHE ENGLISH 

## LANGUAGE at 

## 1433 Thus even absent the liberal reading of Congress’s reservation of the right of these Tribes’ 

### members to take fish fortheir “sustenance,” it is clear 

### by this plain 

### meaning that Congress intended that right to carry with it a right to catch fish that 

### would provide 

### nourishment not contaminated fish or “whatever fish are available” as the State 

### would have it Congress did not simplysay the Tribes 

### had the right to fish It said they 

### had the right to fish for

“sustenance.” 

### The problem here as explained 

## below is that 

### Maine fails to account for such sustenance and cannot be entrusted responsibility to 

### do 

## so Indeed in actual practice the promises of a trustee to a dependent beneficiary is lodged in the federal 

### government not the State 

# B The First Circuit’s Decision in 

### Maine

# v Johnson Does Not Control the 

### Agency Decision 

### Here While the United States Court of Appeals forthe First Circuit has held that the State of 

### Maine has jurisdiction to run the permitting 

### program for

## NPDES discharges this does not permit the State to regulate the Tribe’s sustenance fishery including 

# 1 the internal tribal matters of

## how much fish a tribal 

## membercan safely eat or 

# 2 what is an acceptable cancer risk forthose tribal 

## members Maine 

# v Johnson 498 

# F3d

# 37 48 1st 

### Cir

## 2007 

# “we take 

### no view today as to the ultimate resolution of these potential

## _20


## _ issues.” 

### Under longstanding principles of federal Indian law and 

## EPA policy reflecting that 

## law the Nation’s inherent authority to protect its aboriginal fishery 

### must be given primacy over 

## Maine Thus while 

### Maine 

## may continue to administerthe 

## NPDES program the ability to set standards that are sufficiently protective of the health of tribal 

### members engaged in the taking of fish for their individual sustenance remain with the 

## EPA and the Penobscot 

### Nation not 

## Maine See 

## EPA Policy forAdministration for Environmental 

### Programson Indian Reservations 

# Nov 

# 8 1984 

# EPA Federal Tribal 

### and State Roles in the Protection 

### and Regulation of Reservation Environments July 

## 10 1991 at

# 34 

## EPA will retain enforcement 

### primacy for reservation pollution 

## when tribe cannot demonstrate jurisdiction over certain 

### sources See also 

## HRI Inc 

# v

# E

# P

# A 198

# F3d 

## 1224 1245

10th 

### Cir

## 2000 

# “The federal 

### government bears a special trust obligation to protect the interests of Indian tribes including protecting tribal property and jurisdiction.” 

# C Congress’ 

### Express Recognition that 

## The Sustenance Fishery Shall 

### Not 

## Be Subject 

## To Regulation 

## By the State 

### and the 

## AkinsFellencer Factors 

### Demonstrate that Setting 

## Water Quality 

### Standards Sufficient 

## To Protect 

## The Sustenance Fishery Is

## An Internal Tribal 

### Matter This 

### agency proceeding is not 

### Maine 

# v Johnson which simplydealt with the authority of 

### Maine to administerthe

## NPDES permitting 

### program not to directly determine 

## how to protect particular uses of reservation resources here in a setting 

### where the State refuses to even recognize 

## them Thus the 

## EPA should 

### employ the FellencerAkins standards See 

### Akins at

## 488490 considering factors Fellencer at 

## 710712 

# same Applying those standards the establishment of water quality standards

## _21


## _ for the Nation’s reservation sustenance fishery 

### must be 

### deemed an “internal tribal matter” over 

### which state jurisdiction is barred 

# 1 Whether the Matter 

### Concerns Only Tribal 

## Members or Affects 

# Non Indians 

### The “matter” at issue determination of the acceptable cancer risks 

### and fish consumption rates of Tribal 

### members engaged in a sustenance fishing in tribal waters in order to set

# WQS in Indian territories directly affects the health 

### and welfare of tribal 

### members in 

### and around their principal reservation 

### and has only 

### an indirect effect 

### on 

## non Indians 

## As described 

### above the structure of the

# CWA provides that upstream and discharges 

## may need to take into account the

# WQS set forthe Nation’s sustenance fishery in the Penobscot 

### River but this is a 

## minor indirect effect 

### imposed by Congress and is the 

### same indirect effect that all 

## non Indians are subject to 

## when water quality standards
are set in Indian Territory See Arkansas 

# v Oklahoma 503

# US91 105110 

## 1992 City ofAlbuquerque 

# v Browner97

# F3d 415 10th 

### Cir

## 1996 Moreover the guaranteed right to a tribal sustenance fishery 

### must be taken into account for 

### any

# WQS The EPA’s trust authority or the Tribe’s 

## own authority to determine 

### what is an acceptable health risk to tribal 

### members engaged in a sustenance fishery has only an incremental effect 

### on 

## non Indians 

## who would already 

### be subject to

# WQS that 

### must be protective of the sensitive 

## subpopulation of tribal sustenance fishers 

## To put 

### Maine in control of determining acceptable health risks for tribal 

### members engaged in sustenance fishing 

### on tribal waters is to permit the State to effectively eliminate any tribal sustenance fishing right 

### by setting levels that are not adequately protective of tribal health In context the interests of

## non

## _22


## _ members cannot outweigh the 

### paramount interests of the 

### Tribe the concomitant federal trust interest 

### and the federal goals of the 

### CleanWater 

## Act 

# 2 Whether the Matter 

### Concerns the Harvesting or Deriving of 

### Value from Tribal Resources Attendant to the Tribe’s reserved sustenance fishing right is the right to water in sufficient quantity 

### and of sufficient quality to preserve sustenance fishing See United States 

# v Adair 723

# F2d 

## 1394 1408 11 9th 

### Cir

# 1983 The Nation’s reserved right to take fish “for sustenance” is 

### morethan a 

### mere right of tribal 

### members to dip their nets into the water in the hopes of catching a fish See 

### Washington 

# v Washington State 

### Commercial Passenger Fishing 

### Ass’n 443

# US 658 676 679 

## 1979 Rather it is at the very least a legally protected interest to have fish in the river of sufficient health 

### and quantity to provide tribal 

### members with a “moderate living.” 

## Id at

## 686 United States 

# v Adair723 

# F2d at 

## 1414 15 Control over water quality standards for the Nation’s sustenance fishery is essential forthe 

### growth health 

### and reaping of this critical reservation 

### Akins at

## 48788 

# 3 Whether the Matter 

### Concerns the Regulation or Conservation of Tribal Resources 

### The Akins Courtdescribed the timber permitting policy at issue as “control over the 

### growth 

## and health” of a tribal resource and the “regulation 

### and conservation of natural resources.” 

### Akins at

## 487 88 Further in the face of Congressional silence about imposing state law 

### upon that 

### concern the First Circuit refrained 

### from concluding that state 

### law operated in this

## domain since “the inherent selfgoverning authority of a tribe” appeared to 

### be at stake 

## Id at

## 489 Identical concerns are at issue here even 

### more

# so

## _23


## _ control of the

# WQS in the Penobscot River directly implicate the health 

### and welfare of tribal 

## member in reference to their use 

### and consumption of a reservation resource 

### EPA’s retention of the authority to set standards sufficiently protective of the tribal sustenance fishery is at least equivalent 

## to if not 

### more imperative 

### than preserving 

### and protecting tribal prerogatives 

### from being 

### undermined by the State at issue in 

### Akins Because “the inherent selfgoverning authority of a tribe,” albeit 

### one not as 

### yet not fully exercised is at stake 

### here this Akins factor points to reserving the matter 

### from Maine’s control 

# 4 Whether the Matter Implicates Interests of the State of

## Maine Stripped of its dressings the only interest 

### Maine can legitimately assert in setting the

# WQS applicable in the Penobscot Indian Reservation is the subordination of the Nation and its interest in protecting its reservation fishery 

### Maine has 

### no trust responsibility to protect that fishery and refuses to 

### acknowledge that it is 

### even part of the Penobscot’s reservation 

### Only the 

## EPA or the Tribe itself can ensure the protection of this critical tribal resource 

### and if 

### Maine succeeds in its application 

### here it will 

### have succeeded in its endeavor to 

### end any sayof the Tribe with respect to matters involving its very survival as a unique Indian people dependent 

### upon the River 

### from which they derive their

## name 

# 5 Whether Under Federal Indian 

## Common Law Principles the Matter Involves the Inherent Authority of

## an Indian 

### Tribe Free 

## From Undermining 

## By a State Proper consideration of federal Indian 

### law precedents to the “matter” at issue

## –the right to determine acceptable cancer risks 

### and fish consumption rates of tribal 

### members engaged in a sustenance fishery in tribal waters in orderto set

# WQS in Indian territories

## _24


## _ leaves 

### no doubt that it is a core attribute of tribal authority protected 

### from any undermining 

### by a state 

## and therefore subject to preservation 

### by the federal 

### government See 

### Washington Dep’t of 

### Ecology 752 

# F2d at 

## 1470 1472 See also 

### Wisconsin 266 

# F3d at 

## 747

## 48 Montana 

# v EPA 137

# F3d at 

## 1140 41 Albuquerque 97

# F3d at 

## 423 Pursuant to federal Indian 

## common law principles Indian tribesthroughout the United States are free 

### from the state intrusion of setting water quality standards within their reservation 

### waters

## To state the precise “matter” is virtually to identify it as an “internal tribal matter.” It is the right to determine acceptable cancer risks 

### and fish consumption rates of Penobscot Nation tribal 

### members 

## who engage in their aboriginal right to fish for their sustenance in the Penobscot 

### River The 

# WQS at issue 

### must protect the practices of this Indian tribe practices that it has relied 

### upon for its physical cultural 

### and spiritual sustenance since aboriginal 

### times The State presumes to usurp this matter to itself 

### and it unabashedly presumes authority to 

### announce its 

## own standards for

### what is necessary to protect this Indian tribe’s aboriginal sustenance fishery It is hard to imagine a

### worse intrusion into the Penobscot Nation’s “internal tribal matters.” III 

## The 

# EPA Must Deny Approval of 

### Maine’s 

# WQS Within the Nation’s Reservation 

### Sustenance Fishery

### That 

## Are Insufficiently Protective of the 

### That Fishery The United States trust responsibility to the Indian tribes is the resultof

## common law doctrine that has developed over nearly

### two centuries

## _25


## _ Indian tribes 

### occupy a territory to 

### which 

## we assert a title independent of their will 

### which must take effect in point of possession 

## when their right of possession 

## ceases meanwhile they are in a state of pupilage Their relations to the United States resemble that of a

### ward to hisguardian 

### They look to our 

### government for protection rely 

### upon its kindness and its 

## power appeal to it for relief to their 

### wants and address the President as their great father 

### Cherokee Nation 

# v State of 

### Georgia 30

# US1 10 

## 1831 Marshall

# J see also Protecting Habitat for

## OffReservation Tribal Hunting 

### and Fishing 

### Rights Tribal 

### Comanagement as a Reserved 

### Right 30 Envtl 

# L 279 291 

## 2000 Cassandra

## Barnum

## A Single 

## Penny an Inch of 

## Land or 

### an Ounce of Sovereignty 

### The Problem of Tribal Sovereignty 

### and Water Quality Regulation 

### Under the 

### Maine Indian 

### Claims Settlement 

## Act 37 Ecology

# L

# Q 1159 1194 

## 2010 This trust responsibility extends to the protection of tribal health 

### and natural resources 

### See United States 

# v Mitchell Mitchell 

# II 463

# US206 225 

## 1983 quoting Seminole Nation 

# v United States 

### 316 

# US286 296 

# 1942 Thus even if Maine's water quality standards satisfy the requirements of the 

# CWA and attendant regulations for the population at large

## EPA nevertheless 

### must 

## by virtue of its trust responsibility to Indian tribes reject those standards as applied to Indian territories 

## when tribal 

### members engaged in sustenance fisheries will be disproportionately impacted 

## bywater contamination In the matter 

### here there is 

### no doubt that 

### Maine cannot be entrusted to protect the Tribe’s aboriginal sustenance fishery 

### EPA’s interpretation of the Clean 

### Water Act and attendant regulations 

### no doubt implicate the trust responsibility 

### and therefore require higherwater quality standards than those issued 

## byany state 

## when state standards 

### do not adequately support the legally

## _26


## _ established interest of an Indian tribe 

### here a fishery that 

### must sustain an Indian tribe 

### and its 

## members See 

## Amoco Prod 

# Cov Vill of 

### Gambell480 

# US 531 

## 1986 citing “the familiarrule of statutory construction that doubtful expressions 

### must be resolved in favor of Indians” 

### Even where water quality standards 

## maybe sufficient to protect fish populations 

### from disease

### and death they 

## maynot be approved 

### where they 

### do not prevent toxic bioaccumulation in fish to protect Indian tribes that 

### have a legally protected sustenance fishery 

### While the fish 

## maynot die in multitudes

## and therefore the natural resource 

## may be protected in 

### one sense the standards at their current levels 

### do not adequately protect natural resources to adequately sustain a Native 

### American population identified 

### by Congress to have a specific right to use the resource forsustenance 

## As a factual 

### matter protecting 

## human health often requires 

### more stringent standards than protecting the environment 

### alone 

## As a legal matter therefore the trust requires the 

## EPA to reject state water quality standards that are insufficiently protective of the health of Penobscot Nation tribal 

### members as the legally protected 

### consumers of Penobscot River fish for their sustenance 

### The Supreme Court 

### makes this perfectly clear the “punctilio of honor the 

### most sensitive” requires or at least 

### allows the federal 

### government to 

### manage tribal resources in such a 

## way as to maintain their usefulness to the Tribes Seminole Nation 

# v United States 

### 316

# US286 297 

# n12 

## 1942 quoting 

### Meinhard

# v Salmon 164 

# NE 545 546 

# 1928 This is particularly true

## where as 

### here Congress has expressly recognized the tribal right to the sustenance fishery

## _27


## _ EPA's current focus 

### on environmental justice as a policy area of particular concern should also 

### weigh in favor of taking action to protect tribal resources 

## See

# e

# g Hearing 

### on EPA's 2011 Budget Proposal Senate 

### Committeeon Environment and Public 

## Works 111th 

## Cong 2010 statement of Lisa

# P Jackson Administrator

# US Envtl Prot Agency)(“

# We have begun a 

## new era of outreach 

### and protection for 

### communities historically underrepresented in environmental decision 

## making 

# We are building strong working relationshipswith tribes communities of color economically distressed cities 

### and towns young people 

### and others but this is just a start

# We must include environmental justice principles in all of our decisions.” Exhibit 

### 14 to 

## NPDES Public 

## Comments 

# “ President Clinton's recent Executive Order regarding environmental justice should be applied to this permit 

### process

## As you 

## know one purpose of the Order 

### and the federal government's increased emphasis 

### on environmental justice is to ensure that minorities in our society live in healthy 

## communities Due to the island location of its reservation the Penobscot Indian Nation is subject to a disproportionate burden of the risks and 

### harms occasioned 

### by industrial plants

# ”
In contrast 

### Maine has 

## made very clear not only in its submissions to this 

## Agency but in its historical resistance to the actions of federal agencies to protect tribal interests in water resources that it will not protect these unique tribal 

### uses Maine refuses to recognize that the Tribes 

### have a reservation right to fish of a quality to provide sustenance to tribal 

## members See 

# eg Brief of the State of 

### Maine to the First Circuit in 

### Maine 

# v Johnson

## _28


## _ Thus apart 

### from the jurisdictional barrier that “internal tribal matters,” including the taking fish 

### by tribal 

### members “for their individual sustenance,” “shall not 

### be subject to regulation 

### by the state.” 

### 25

# US

# C 1721

# b ratifying 

### 30

# MRS

# A 6206

# 1 6207

# 4 EPA cannot approve Maine’s 

# WQS in Indian territories because it 

### would constitute an abdication of its trust authority to the 

### Nation 

## EPA should not cede to 

### Maine the ability to set

# WQS in Indian territories in 

## Maine 

## EPA should therefore retain for itself in consultation with the Nation authority to set

# WQS sufficiently protective of the tribal sustenance fishery 

# IV The EPA’s approval of 

### Maine’s 

# WQS Would Be Arbitrary

## And Capricious 

### Because Maine’s 

# WQS Are Premised 

## on the Physical Impossibility that Tribal 

## Members Consume Different 

## Amounts of Fish 

### Depending 

## on the Particular Pollutant at Issue 

### The State originallyproposed 

## 9,900 increase in the permissibleconcentrations of inorganic arsenic

# AWQC for

## Human Health criteria of both “

### OrganismsOnly” and

“

### Water and 

### Organisms” for waters in the State of 

### Maine outside Indian territories

increasing respectively 

### from 0.028 

# _gL to 2.8

# _gL and 0.012 

# _gL to 1.2

# _g

# L The 

## EPA determined that such standards 

### were not sufficiently protective of the sensitive subpopulation of tribal sustenance fishers 

### The State 

## now asks 

## EPA to approve for Indian territories in 

### Maine an 

### even greater increase 

## 13,114 increase for “

### Organisms only” and 

## 10,733 increase “

### Water and Organisms” in the permissibleconcentrations over those that formerlyapplied elsewhere in the state 

### These newly proposed standards are not sufficiently protective of tribal sustenance fishers

### and should not be approved in Indian territories in 

## Maine

## _29


## _ The proposed standards 

### would also be arbitrary 

### and capricious if they 

### were applied to Indian territories 

### Maine proposed to use a fish consumption rate of 

### 138 

# gday for the purpose of determining acceptable levels of inorganic arsenic but use a consumption rate of 32.4

# gday for all other pollutants 

### Even 138 

# gday is 

### below the estimated intake of tribal sustenance 

### fisherman which has 

### been estimated at

## 286514 

# gday See 

### Wabanaki Traditional Cultural Lifeways Exposure Scenario at

# 6263 July

# 9 2009 available at 

# http

# wwwepagov

## negovt tribes

### pdfs

# DITCA pdf hereafter 

### Wabanaki 

## Study The Wabanaki Study 

### was conducted in a joint effort between the 

## EPA and the 

### Maine Tribes expressly for the purpose of determining 

# WQS in Indian territories in 

## Maine This 

### document presents the 

### Wabanaki Cultural Lifeways Exposure Scenario a numerical representation of the environmental contact diet and exposure pathways present in traditional cultural lifeways in 

## Maine This project 

### was a coordinated effort 

## among the five federally recognized Tribal Nations in 

### Maine and the

# US 

# EPA



# ... The purpose of this report is to describe 

### Maine tribal traditional cultural uses of natural resources 

### and to present 

### them in a format that can be used 

### by 

## EPA to evaluate whether or not tribal uses are protected 

## when they are requested to review or develop water quality standards in waters that include Indian territories in 

## Maine Present

### day environmental conditions 

## may not allow 

## many people to fully 

### engage in a fully traditional lifestyle until resources are restored but this is still 

### an

‘actual’ 

### and not ‘ hypothetical’ lifestyle


# ... This report will enable 

## EPA to understand Tribal use of the water resource for 

### food medicine cultural 

### and traditional practices and recreation so that 

## EPA can evaluate whether or not those uses are protected regardless of

## who develops water quality standards 

### Wabanaki Study at

# 78 The Nation hereby incorporates 

## by reference the entire 

### Wabanaki Study This is the only “local data 

### on fish consumption” available with regard

## _30


## _ to Indian territory and so is the preferred value for purposes of

# WQS EPA’s 

# AWQC Methodology Sections 

### 1.6 2.6 2.8.2 Maine ignores this study and uses a 

### 1992 ChemRisk study as evidence that the 32.4

# gday and 138

# gday rates it uses in its ambient water quality criteria are protective of 

### Maine tribes 

### However the 

### ChemRisk study is flawed and does not accurately reflect consumption rates of Penobscot or other tribal 

### people First the 

### ChemRisk study only captures consumption of fish 

### from State not tribal 

### waters 

## Second it captures suppressed 

### consumption rates in the presence of health advisories 

## when people 

### were being 

### warned against 

### consuming fish 

### from Maine rivers including the 

### Penobscot The surveys forthe study

### were done in 

## 1990 while the 

### Maine Bureau of Health and the 

# ME DEP have issued fish consumption advisories since at least 

### 1987 for the Penobscot including 

### more restrictive advisories in 

## 1990 Third because the 

### ChemRisk study only surveyed people that held a 

### 1989 Maine resident recreational fishing license it is not representative of Penobscot sustenance fisherman Penobscot tribal 

### members get sustenance fishing licenses directly 

### from the tribe 

### and are not required to get 

### Maine recreational licenses to fish in tribal 

### waters including the Penobscot 

### River In the Nation’s experience tribal people 

## who carry out subsistence lifestyles are not likely to be captured in mailortelephone surveys 

### Maine discounts the 

### Wabanaki study because it argues that it does not constitute

“empirical” data as 

### compared with the 

### ChemRisk study There is 

### no basis in the 

### Clean Water Act or the implementing regulations forthis distinction Instead the 

## EPA recommends “local data 

### on fish consumption in place of this default value 

## when deriving 

## AWQC.” EPA’s

# AWQC methodology Section 

### 1.6 The Wabanaki study constitutes

## _31


## _ “local data” with regard to Indian territories while the 

### ChemRisk study does 

## not The Wabanaki Study 

## was created precisely for use in

# WQS determinations 

### and it fully justifies its 

### methods The consumption of fish for sustenance is a present use of waters in Indian territories 

### and there is nothing in the Clean 

### Water Act or its implementing regulations to suggest that it is improper to look to data that is based in part

### on information that predates the Clean 

### Water Act in determining the appropriate fish consumption rates sufficient to protect 

### modern day tribal sustenance fishers 

### The consumption rates 

### from the 

### Wabanaki Exposure Scenario 

### more accurately reflect sustenance fishing practices and demonstrate the inadequate protection offered 

### by the proposed water quality standards 

## Any

# WQS standards that are directly applicable to Indian territories should use the consumption rates of the 

### Wabanaki Study These consumption rates should be used for all pollutants Similarlythe Nation objects to the use of a 

### one in ten thousand cancer risk rate for the 

## known carcinogen of inorganic arsenic 

### Maine uses a 

### one in one million cancer risk rate forother carcinogens It is offensive for the State of 

### Maine to 

### be purporting to determine 

### what an acceptable cancer risk rate within Indian territory forsustenance tribal fishermen 

## As described 

## above we believe the State has 

### no jurisdiction to 

## make this determination and further believe that the

# EPA consistent with its permissible authority under its Trust responsibilityshould not approve such a determination over the Nation’s objection 

### The Nation further believes that it 

### would be arbitrary 

### and capricious to 

### do 

## so

## _32


## _ 

# CONCLUSION For all of the 

### above reasons the 

## EPA should decline to approve Maine’s proposed 

# WQS within the Penobscot Nation’s sustenance reservation fishery 

## Dated September 

## 13 2013 s 

### Kaighn Smith 

## Jr Kaighn 

## Smith

## JrEsq David

# M Kallin 

## Esq Counsel forthe Penobscot Nation 

## Drummond

## Woodsum MacMahon 84 Marginal

# Way Suite 

## 600 Portland 

### Maine 

## 04101 2480 

# CoCounsel 

## Mark Chavaree 

## Esq Penobscot Nation 

## 6 River 

### Road Indian Island 

### Maine 04468