Tribal Chief Brenda 

### Commander Tribal Council Crystal Tucker Merion 

### Tomah Linda

### Raymond John Flewelling

Sandra 

### Hayes 

# HOULTON BAND OF MALISEET INDIANS 88 Bell 

## Road

Suzanne Desiderio

12.17.13

Curt Spalding Regional Administrator 

### USEPA REGION 

# 1 New England 5 Post Office Square Mail 

### Code 

## ORA Boston 

## MA 02109 3912 Littleton

# ME 04730

Re Supplemental 

### Comments Regarding Public Notice ofEPA's 

### Review of 

### Maine Water Quality Standard Revisions as They Apply in Indian Territories Administration Telephone



## 207 5324273 In State 

# 1800 5648524 

## OutofState 

# 1800 5458524 

### Fax 

## 207 5322660

The Houlton Band of Maliseet Indians respectfully submits these supplemental 

### comments on the State ofMaine's request for approval of revised water quality standards 

## WQSs for arsenic acrolein and 

### phenol The Tribe requests that the EPA 

### make these 

### comments part ofthe record Specifically the Houlton Band writes to emphasize the federallyprotected nature of its water and fishing rights 

### on Maliseet trust lands and in Maliseet waters and the EPA's trust responsibility to protect those 

### uses 1 These 

### comments also address 

### why the State's use of inconsistent fish consumption rates is arbitrary and capricious The Houlton 

### Band reiterates and incorporates its prior 

### comments dated 

### September 

## 13 2013 including all attachments thereto and urges the 

### EPA to disapprove Maine's inadequate 

## WQSs

I The Houlton Band's FederallyProtected 

### Water and Fishing Rights and the EPA's Trust Obligation to Protect those Uses under the Clean Water Act
As discussed in detail in our prior 

### comments the Wolastoqewiyik or Maliseet Indians are river people 

## who have fished 

### hunted trapped and gathered natural resources in the 

### Wolastoq or

### St John watershed forthousands of years These resources are central to ourdiet culture traditions spirituality and health and welfare Congress recognized the Maliseet 

### way of life in the 

### Maine Indian Claims Settlement Act 

## MICSA See 

# e

# g S Rep 

## No 96957 at 11 All three tribes are riverine in their 

### land ownership orientation The aboriginal territory ofthe Houlton Band of Maliseet Indians is centered 

### on the Saint John 

## River MICSA and the 

### Maine Implementing Act accordingly provided 

### a

1 For purposes ofthese 

### comments Maliseet waters include those portions of the Meduxnekeag River and its tributaries that run through Houlton Band trust orfee lands including Big Brook Suitter Brook Smith Brook Dead Stream and the small brook that enters Cochran Lake from Houlton Band fee property as well asany other water bodies in oradjacent to these lands 1

### homeland forthe Houlton Band by setting aside land or natural resources in trust for the 

### Band See 25 

# US

# C 1724

# d 25 

# USC 1724

# d Note Public 

### Law 

## No 99566 

# 4a Oct 27 

## 1986 Congress explained that these trust resources 

### would substitute and were in exchange for the Band's aboriginal lands and natural resources 

## S Rep 

## No 96957 at 24 explaining that 

## the land is intended to constitute satisfaction ofthe Band's legal claims and that Congress seeks to settle all Indian land claims in 

### Maine fairly see also 25 

# USC 1721 findings and 

### purpose 1723 relinquishing lands and natural resources The United States Department ofthe Interior confirmed on January 

## 15 1993 that Maliseet trust lands acquired under 

## MICSAIocated 

### on both banks ofthe 

### Meduxnekeag River a tributary ofthe 

### St

## John are an Indian reservation for purposes of federal 

### law See 

### Attachment

As a matter of federal 

### law the lands and natural resources held in trust bythe United States for the benefit ofthe Houlton 

### Band include water and fishing rights Federal 

## common law is clear that 

### when Congress sets aside lands 

### intrust for the use and benefit of an Indian tribe or individual Indians as it did forthe Houlton 

### Band Congress impliedly reserves water and fishing rights 

### on those lands 

### See 

# e

# g Menominee Tribe of Indians v United States 391 

# US 404 

## 40506 1968 holding that lands acquired for a tribe in exchange forthe relinquishment ofother lands include implied hunting and fishing rights Arizona 

### v California 373 

# US 546 599 

### 1963 finding implied water rights where 

### water from the River 

### would be essential to the life ofthe Indian people and to the animalsthey hunted and the crops they 

### raised Winters 

### v United States 207 

# US 564 577 

### 1908 holding that tribe impliedly reserved water rights to support beneficial use of its 

### lands This reservation of federal rights occurs regardless of whether the lands are set aside 

### bytreaty executive order or statute 

### See 

# e

# g United States v 

### Dian 476 

# US 734 745 

# n8 

## 1986 Indian reservations created by statute 

### agreement or executive order normally carry with 

### them the 

### same implied hunting rights as those creates by

## treaty For

### example in Alaska Pacific Fisheries 

## Co v 

# US 248 

# US 78

## 8688 

## 1918 the 

### Supreme Courtheld that 

### where Congress set aside lands forthe landless Metlakahtla Indians it impliedly reserved fishing rights in adjacent waters 

### The Indians 

### were historically fishersand hunters and the lands 

### were chosen to provide 

### them access to the fishing 

### grounds ld at

## 8889 Similarlyin Colville Confederated Tribes v 

### Walton 647 

# F

2d 

## 42 48 9th Cir

## 1981 the court held that Congress impliedly reserved water rights to support the
tribal fishery 

### on tribal trust lands 

### where the Colvilles traditionally fished for both salmon and trout Like other Pacific Northwest Indians fishing was ofeconomic and religious importance to

# them Through 

## MICSA Congress acquired lands in trust for the benefit of the Houlton Band to provide the landless Maliseet Indians 

### a

## home where they could preserve their riverine culture and engage in traditional fishing hunting and gathering activities 

## SeeS Rep 

## No96957 at 

### 11 All three tribes are riverine in their 

### landownership orientation The aboriginal territory of the Houlton Band of Maliseet Indians is centered 

### on the Saint John 

## River id at

### 24 The Houlton 

### Band is impoverished it is small in 

## number it has no trust fund to look 

### to and it is questionable whether the land to be acquired for it will be utilized in an 

### incomeproducing fashion in the foreseeable 

## future As the Department of the Interior expected the Tribe's reservation is located in eastern Aroostook County 

### on the 

### Meduxnekeag River adjacent to one of the river's best fishing holes See 

# H

# R Rep 

## No 961353 Report ofthe Department of the Interior 

### Aug 

## 25 1980 Federal law is clear that in reserving these lands Congress concurrently reserved water and fishing rights for the Tribe



### 2The Houlton Band's federallyprotected water and fishing rights include the right to water of sufficient quantity and quality to support tribal fishing activities and other uses See United States 

### v Adair 723 

# F2d 

### 1394 

## 1408 11 9th Cir

## 1983 The leading federal Indian law treatise explains
To 

### meet federal purposes Indian reserved water rights should be protected against impairments ofwater quality as well as against diminutions in quantity Fulfilling the purposes of Indian reservations 

### depends on the tribes receiving water of adequate quality as well as sufficient quantity The quality of the water necessary for tribal uses 

### may vary from the high quality 

### needed for 

### human consumption to a lesser quality for fish and wildlife habitat to an even lower quality for irrigation Each 

### use however requires water that is appropriate quality to support that 

### use The quality Jnd quantity ofwater 

### may be directly related This interrelationship

is most evident in the case of

### a reserved right to water for fisheries preservation The right reserved is that 

### amount of water necessary to maintain the fisheryThe fishery consists not only ofthe fish themselves but also of the conditions necessary to their survival 

### Thus habitat protection is an integral 

### component ofthe reserved right In order to protect the fishery habitat tribes should have a right not only to a sufficient 

### amount of

### water but also to water that is of adequate quality
Cohen's 

### Handbook of Federal Indian 

## Law 19.03

# 9 at 1236 Nell Jessup 

### Newton 

## ed 2012 footnotes and citations 

### omitted
The EPA therefore has a trust obligation to protect the quality of Maliseet waters which are the lifeblood of the Maliseet people and which support the fish animals and plants at the core of their diet and culture 

### See 

# e

# g Parravano 

### v Babbitt 70 

# F3d 539 

## 54647 9th Cir

## 1995 recognizing the Unite'd States trust obligation to protect impliedly reserved fishing rights see also generally State Program Requirements Approval ofApplication 

### by Maine to Administerthe National Pollutant Discharge Elimination System 

## NPDES Program 68 

### Fed Reg 65,052 65,056 

## Nov 18 2003 Clearlythe physical setting ofthe tribes in such close proximity to important rivers 

### makes surface water quality important to 

### them and their riverine

## culture As the Solicitor concluded in regard to Maine's initial application for

### NPDES authority in Indian country
EPA 

## must in accordance with the best interest ofthe Tribes and the 

### most exacting fiduciary 

### standards faithfully exercise its federal authority and discretion to protect Maliseet tribal water quality from degradation EPA would take into consideration 

### more than just the 

### minimum requirements in the 

## CWA in overseeing 

### a State program to fully protect Tribal resources including lands and waters Specifically EPA would have to consider the specific uses the Maliseets 

### make of their tribal waters including traditional ceremonial medicinal and cultural uses affected by water quality EPA 

### must be fully satisfied that it is able to 

### meet its trust obligation to the Maliseets even if it approves the State of 

### Maine to administer the 

### NPDES program EPAshould seek assurances from the State of

### Maine that the state will implement the 

### NPDES program in a 

### mannerwhich satisfies EPA's trust obligations



### 3Solicitor's Opinion attached to Letter from 

### Edward 

# B Cohen Office of the Solicitor Dep't of Interior to Gary 

### S Guzy Office ofGeneral Counsel Envtl Protection 

### Agency at 2 

## May 16 2000 citations 

### omitted These conclusions apply with equal weight to Maine's request to apply its revised 

## WQSs in Maliseet waters
The Houlton 

### Band notes that 

### MICSA and the 

### Maine Implementing Act 

### do not speak to their water and fishing rights in precisely the 

### same manner as the legislation speaks to the rights ofthe 

### Passamaquoddy Tribe and the Penobscot Nation 

### However nothing in that distinction or elsewhere in 

### MICSA demonstrates or even suggests the absence of federallyprotected water and fishing rights for the Maliseets First as discussed 

### above it is wellestablished that 

### when the United States sets aside lands in trust for an Indian tribe it impliedly reserves water and fishing rights regardless of whether the treaty statute or executive order expressly refers to such rights 

### See 

## e

# g United States 

### v Aanerud 893 

# F

2d 956 958 8th Cir

## 1990 holding that tribal 

### membershave federallyprotected right to harvest natural resources 

### on tribal lands notwithstanding silence in treaty setting aside lands fortribe 

### Second MICSA and the 

### Maine Implementing Act contemplate these rights defining the lands or natural resources held in trust for the Houlton Band to include any interest in or right involving any real property or natural resources including water and water rights and hunting and fishing rights 25 

# USC 1722

# bMe Rev Stat tit 

### 30 6203

# 3 Third the relevant provisions in the 

### Maine Implementing Act regarding the 

### Passamaquoddy Tribe and the Penobscot Nation are directed at the State's regulatory authority over the tribes exercise of fishing rights on their reservations not the existence ofthose rights altogether See 

# Me Rev Stat tit 

### 30 6207

# 1 4 S Rep 

## No96957 at

## 16 17 37 see also

# Me Rev Stat tit 

## 30 6206

# 1 Fourth Congress confirmed in 

### MICSA that Maliseet trust lands 

### would be treated in the 

### same manner as any other Indian reservation see 25 

# USC 1725

# i and the 

### Department ofthe Interior has confirmed that Maliseet trust lands are an Indian reservation for purposes offederallaw 2 Accordingly regardless ofwhether the State 

### may have 

### some regulatory authority over the Houlton Band's exercise of reserved fishing rights in Maliseet waters 25 

# USC 1725

# aMe Rev Stat tit 

### 30 6204 those rights exist as 

### a matter of federal 

### law Moreover recognizing the Houlton Band's reserved water and fishing rights and the EPA's trust obligation to protect the Tribe's uses of Maliseet waters does not operate to 

### preempt the civil criminal or regulatory jurisdiction of the state of Maine under 

### MICSA See 25

# USC 1725

# h
To the extent the EPA sees any ambiguity in 

### MICSA or in the foregoing discussion ofthe Tribe's federallyprotected water and fishing rights that ambiguity 

### must be resolved in the Band's favor Federal statutes relating to Indian tribes 

### must be construed liberally in favor ofthe Indians with ambiguous provisions interpreted to their 

### benefit Montana v Blackfeet Tribe ofIndians 471 

# US759 766 

## 1985 and Congressional acts diminishing sovereign tribal rights 

### must be strictly construed with

2 Indeed MICSA expressly provides that the same principles of federal law apply to the Houlton Band as apply to other federally recognized Indian tribes See 25 

## US

# C 1725

# h see also 25

# CF

# R 83.12

# a providing that upon federal recognition a tribe shall be considered a historic tribe and shall be entitled to the privileges and immunities available to other federally recognized historic tribes by virtue of their government 

### togovernment relationship with the United 

### States 4

### ambiguous provisions interpreted to their benefit Penobscot Nation 

### v Fellencer 164 

# F3d 

## 706 709 1st Cir

## 1999 It is settled law that these Indian canons apply to Indian claim settlement acts including 

## MICSA 

## d at

## 708

## 09 see also 

# e

# g Parravano 

### v Babbitt 70 

# F3d at

## 546 Connecticut ex rei Blumenthal 

## v

# US Dept ofthe Interior 228 

# F3d 

## 82 92 2d Cir

## 2000

In

## sum when the Houlton 

### Band and its 

### members use Maliseet waters including sustenance fishing in the 

### Meduxnekeag River they exercise rights created and protected by federal 

### law These rights define and lie at the heart ofthe EPA's trust responsibility with respect to the authority to set 

## WQSs in Maliseet waters and with respect to the substance ofthose water quality standards The EPA has a trust obligation to ensure the protection of Maliseet uses through its review of the State's revised 

## WQSs for arsenic acrolein and phenol and should disapprove those standards

II Maine's Use of Qifferent Fish Consumption Rates for Different Toxic Pollutants Is Arbitrary and Capricious

It is inherently arbitrary and capricious for the state of

### Maine to vary the fish consumption rate in developing criteria for different toxic pollutants forthe 

### same waters yet that is exactly what 

### Maine did The Maliseet diet is centered 

### on the natural resources of the 

### Meduxnekeag watershed but eating large 

### amounts of fish from the river 

### now exposes Maliseet families to the health risks associated with high levels of environmental contaminants in those waters Recognizing that there 

### were subsistence fishers 

### who relied 

### on fish from local 

### waters Maine used 

### a fish consumption rate of 138

# gday 

### when calculating the criteria for arsenic to force water quality protective of that sensitive subpopulation 3 Yet forthose 

### same waters the state used 

### a rate of only32.4

# gday the general population fish consumption rate in developing the criteria for phenol and acrolein Having already acknowledged that sensitive subpopulations in the state relyon local waters for their sustenance 

### Maine must rely

### on the 

### same subsistencebased fish consumption rate in developing the criteria for all toxic pollutants forwhich 

### humans are exposed through ingestion of fish 4

### To do otherwise puts subsistence fishers in the

3 As indicated in our prior 

### comments the Houlton Band of Maliseet Indians asserts that even the 138

# gday fish consumption rate is lower than warranted by EPA's default subsistence fish consumption rate of142

### S

# gday existing local data and the fact that fish consumption rates have been suppressed in recent decades See 

## e

# g Nat I Envtl Justice Advisory Council Fish Consumption and Environmental Justice 

## 4349 

### 2002 available at 

## http

# wwwepagovcompliance ejresources publications nejacfish

### consump report 

### 1102 pdf discussing importance ofaccounting for suppressed consumption in developing fish consumption rates Envtl Protection Agency Guidance for Conducting Fish Wildlife Consumption Surveys

## 27 

### 1998 available at httpl water

## epagov scitech swguidance fishshellfishtechguidance upload1999 11 OS fish fishguidpdf advising that suppressed consumption due to fish advisories in local waters be accounted for State of

### Maine Application for Arsenic Water Quality Standard Revision Exhibit

### 8 page 

### 100 10607 Jan 

### 14 2013 admitting fish consumption has been suppressed in tribal waters due to contamination concerns and acknowledging that fish advisories were in place at time ofChemRisk survey hereinafter Maine Arsenic Application The Tribe refers the EPA to those 

### comments as well as incorporates by reference those aspects ofthe Penobscot Nation's supplemental comments dated November 

### 25 2013 insofar as they relate to the inadequacy ofthe rate Maine adopted for these criteria and for subsistence fishers ingeneral 4

### See

## e

# g 40

# CF

# R 131.11

# a2 criteria for toxics must protect designated uses including fishable waters Envtl Protection Agency Methodology for Deriving Ambient Water Quality Criteriafor the Protection of

### Human Health 

# 1 11 to 

## 1 12 

### 2000 available at 

## httpwaterepa gov scitech swguidance standards upload 200S OS 06 criteria humanhealth method comple 5unenviable position of knowing that the fish on their dinner plate 

### grew up in rivers or lakes clean 

### enough to protect their fishbased diet as far as one toxic pollutant is concerned but not the others But afisherman relying

### on locally caught fish for his daily sustenance should feel secure both that 

### he will not suffer arsenic poisoning from eating that fish and that he will not sufferother adverse health effects through chronic exposure to other dangerous toxins from eating that 

### same fishs
So long as 

### Maine has sensitive subpopulations such as the Houlton 

### Band engaged in subsistence fisheries and so long as it promulgates water quality standard criteria forthe toxins 

### on a statewide basis 6 the State 

### mustapply the 

### same subsistence fish consumption rate in its formulae for all 

### human healthbased criteria for toxics in order for those criteria to be scientifically defensible and to protect designated uses 

## When the Maliseet people 

### consume fish their consumption does not vary based 

### on the particular toxins in the fish to which they are 

### exposed Therefore the EPA should disapprove Maine's proposed criteria for acrolein and phenol 7 Anything short of that would be arbitrary and capricious as well as violate the agency's trust responsibility to the Tribe 8


### tepdf 

# Through the use of conservative assumptions with respect to both toxicity and exposure parameters the resulting criteria should provide adequate protection not only for the general population over a lifetime of exposure but also for special subpopulations 

## who because of high water or fishintake rates have an increased risk ofreceiving a dose that would elicit adverse 

### effects 5 See 

## e

# g Envtl Protection Agency 

### Human Health Ambient Water Quality Criteria and Fish Consumption Rates FrequentlyAsked Questions available at 

## httpwater

### epagovscitechswguidance standards criteriahealthmethodology uploadhhfaqs pdf 

### EPA does not necessarily expect all consumers to eat only fish from a single State but individuals or groups should be able to do so without concern for their 

## health 6 While using the general population fish consumption rate from water bodies might 

### make sense if the State chose to promulgate its water quality standards on a sitespecific water 

### bodybywater body basis thereby allowing it to account for different levels of fishing use and the potential absence of subsistence fishers in certain water bodies the State did not do so here See 

## e

# g Catherine

## A O'Neill Protecting the Tribal Harvest The Right to Catch apd Consume Fish 22 

### J ENVTL L LITIG 131 

### 14042 

### 2007 describing Oregon Technical Advisory Committee's recommendation that the Oregon Department of Environmental Quality 

## DEQ assign values to the various regulated water in Oregon depending on the intensity of fishing activity in those waters and use a fish consumption rate of 17.5 142.5 or389 

## gday respectively for 

## low intermediate or high intensity fishing activity on that water 

## body Oregon Dep't of Envtl Quality

### Human Health Criteria Issue Paper Taxies Rulemaking 10 

## 2011 available at 

## http

# wwwdeq state

### orus

## wqstandards 

### docs toxics humanhealth rulemaking HumanHealthToxicCriterialssueP aperpdf explaining basis for choosing statewide subsistence based FCR as opposed to choosing FCR based on fishing use of individual water bodies as well as basis for moving from original statewide FCR proposal of 17.5 

# gday to 175

# gday Oregon Dep't of Envtl Quality

### Human Health Water Quality Standards forToxic Pollutants and Implementation Policies Rulemaking 

### 2008

## 2011 available at 

## http

# wwwdeq state

### or

## us

## wqstandards humanhealthrule htm describing 175

## gday statewide 

## FCR Instead Maine sets its water quality standards on a statewide basis Maine Arsenic Application Exhibit

## 6 page 1 Jan 

### 14 2013 Ch 584

# 1 If Maine wishes to use a state wide FCR instead ofa sitespecific FCR based on fishing use intensity of individual water bodies then like Oregon it must employ a FCR protective ofsensitive subpopulations throughout the state Finally if Maine chooses to use awater 

### body

## bywater bodyapproach to the 

### FCR the burden should be on the state and the regulated community to demonstrate a lack ofsubsistence fishing on a water 

### body as opposed to placing the burden on the public to demonstrate the presence ofsubsistence fishing on that water 

### body Maine Arsenic Application Exhibit 

## 6 page

## 23 

## Ch 584

# 38 requirements regarding developing more stringent criteria for individual water bodies id at Exhibit

## 8 page 

# 910 EPA's criticism of

### Ch 584s placement of this burden on public instead of the state 

### agency 7 See 

## e

# g Miss

### Comm'n on Natural Res v Castle 625 

## F2d 

### 1269 1275 77 5th Cir

### 1980 recognizing EPA's strong oversight role over state promulgation of water quality standard criteria 

### Amer Forest Paper Ass'n 

### v

# US Envtl 6

### Woliwon Thank you

Brenda 

### Commander Tribal Chief

Protection Agency 

## No 93cv0694 1996 

### WL 509601 at 

# 5 7 

# DD

# C Sept

## 4 1996 recognizing EPA's broad discretion in its selection ofdata and in its method of calculation of the fish consumption rate including taking a conservative approach in criteria development 8 See Maine Arsenic Application Exhibit

## 8 page 11 

### USEPA recommends that Maine DEP proposes statewide arsenic criteria that 

### MEDEP can demonstrate are protective ofthe general population as well as the sensitive subpopulations in 

### Maine notably the Maine Indian Tribes subsistence fishers Such criteria should be derived from scientifically sound values forthe different variables that comprise the calculation ofthe criteria including but not limited to a supportable 

# FCR
7