COMMENTS OF MAINE ATTORNEY GENERAL JANET MILLS IN RESPONSE TO EPA'S PROPOSED REINTERPRETATION OF SECTION 518 OF THE CLEAN WATERACT October 

### 29, 2014 Maine Attorney General Janet T. Mills hereby submits the following comments in response to the proposed reinterpretationbythe United States Environmental Protection Agency ("EPA") ofSection 518 ofthe Clean Water Act, 33 U.S.C. §§ 1251, etseq. ("CWA"). Under EPA's current interpretation ofSection 518 ofthe CWA, 33 U.S.C. § 1377(e), a tribe must demonstrate its regulatory authority before it can be treated in a similar manner as a state ("T AS") for purposes ofadministering EPA-delegated regulatory programs underthe CW

### A. See, e.g., 40 C.F.R. 

### § 131.8. This current eligibility requirement is critical in Maine because of the unique tribal-State relationship established by Congress and the Maine Legislature under the Maine Implementing Act, 30 M.R.S.A. §§ 6201 et seq. ("MIA") and the Maine Indian Land Claims Settlement Act, 25 U.S.C. 

### §§ 1721 et seq. ("MICSA") (collectively the "Settlement Acts"). Under the Settlement Acts, Maine has primary environmental regulatory authority and jurisdiction throughout the State, including within Indian territories. This was confirmed by the First Circuit Court ofAppeals in Maine v. Johnson, 498 F.3d 37 (1'1Cir. 2007). EPA'sproposed reinterpretation ofSection 518, however, eliminates the current TAS eligibility requirement that tribes demonstrate their regulatory authority overtribal lands, and replaces it with apresumption that Congress has delegated the necessary regulatory authority to all tribes, includingtribes in Maine. Withrespect to Maine, EPA's proposed reinterpretation ofSection 518, including any presumption that Congress has delegated any environmental regulatory authority to Maine's tribes, is unlawful and contrary to the Settlement Acts andMaine v. Johnson.

### Under the Settlement Acts, the State ofMaine, ratherthan Maine's tribes, has the jurisdiction and authority to administerregulatory programs under the CW A The CW A instituted "acomprehensive program for controlling and abating water pollution." 

### Train v. City of New York, 420 U.S. 35, 37 (1975). In establishing this regulatory framework, Congress was careful to "recognize, preserve, and protect the primary responsibilities and rights ofStates to prevent, reduce, and eliminate pollution." 33 U.S.C. 

### § 125l(b ). 

### Itis now well-established that the State ofMaine has environmental regulatory authority andjurisdiction over all waters in the State, including any waters in or near tribal territories. The 1980 Maine Indian Settlement Acts "provided that 'withvery limited exceptions,' [the Tribe] would be 'subject to' Maine law

...." 

### Johnson, 498 F.3d at 42. One of the cornerstones ofMIA establishes: Except as otherwise provided in this Act, all Indians, Indian nations, and tribes and bands ofIndians in the State and any lands or other natural resources owned by them, held in trust for them by the United States orby any other person or entity shall be subject to the laws ofthe State and to the civil and criminal jurisdiction ofthe courts ofthe State to the same extent as any other person or lands or other natural resources therein. 30 M.R.S.A. 

### § 6204. The then-Interior Secretary stated to Congress "thatthe Settlement Acts

were 'intended to effectuate the broad assumption of jurisdiction over Indian land by the State of Maine.' H.R. Rep. 96-1353 at 28, 

### reprinted in 1980 U.S.C.C.A.N. 3786, 3803-3804 (report of the Department ofthe Interior)." 

### Johnson, 498 F.3d at 45 n. l0. Congress confirmed and approved thisjurisdictional principle for federal purposes in MICSA. 25 U.S.C. 

### § 1725. At the time the SettlementActs were adopted, the InteriorDepartment, largely responsible for relations with Indian tribes, told Congress that the southern tribes' lands would generally be subjectto Maine law. H.R. Rep. 96- 1353 at 28 (report of the Department ofthe Interior). The Senate Report, adopted bythe House Report, declared that "State law, including but not limited to laws regulating land use or management, conservation and 

### e11viro11111e11talprotection, are fully applicable as provided in [the proposed bill] and Section 6204 ofthe Maine Implementing Act." S. Rep. 96-957 at 27; H.R. Rep. 96-1353 at 20. 

### 2Johnson ,498 F.3d at 43-44 (emphasis added). Thus, Congress understood that, under the Settlement Acts, Maine would retain full environmental regulatory authority over Maine Indian territories. Congress also understood that any special environmental rights that might be afforded to Indian tribes generally orby other laws would be inapplicable in Maine. The Senate Report stated that "for example, although the federal Clean Air Act, 42 U.S.C. 

### § 7474, accords special rights to Indian tribes and Indian lands, such rights will not apply inMaine because otherwise they would interfere with State air quality laws which will be applicable to the lands held by or for the benefit ofthe Maine Tribes. This would also be true ofpolice power laws on suchmatters as safety, public health, environmental regulation or land use." S. Rep. 96-957 at 31. Id. at 44 n.7. Under the final terms ofthe 1980 federal Settlement Act (MICSA), Congress made clearthat no existing federal laws that afforded Indian tribes any special rights or status, and that affected orpreempted Maine's civil regulatoryjurisdiction (including Maine's environmental laws), would apply in Maine. 25 U.S.C. 

### § I725(h). Congress also made clear that no

### future federal laws benefitting Indiantribes and affecting or preempting Maine's laws, such as the 1987 passage ofSection 518, would apply in Maine unless those laws were made specifically applicable to Maine. 25 U.S.C. 

### § l735(b). This Congressional understanding ofthe State ofMaine's environmentaljurisdictionand authority overMainetribal te11'itories was subsequently confirmed againby Congress in 1987 when it amended the CW A by, inter alia, adding Section 518, which generally set forth tribal rights and responsibilities and permitted tribes to apply for TAS status. 33 U.S.C. 

### § 1377(e). Generally, outside ofMaine, atribe may now, as a result ofthe passage ofSection 518 in 1987, be granted TASjurisdictionto regulate water resources within its borders in the same manner as states. Outside ofMaine, this might include the authority to administer EPA-approved tribal programs involvingtribal water quality standards ("WQS") or to issueNational Pollution

3Discharge Elimination System ("NPDES") permits for discharges into such waters. 33 U.S.C. § 1377( e); 40 C.F.R. § 131.8; 

### City of Albuquerque v. Browner, 97 F.3d 415, 418 (91 h Cir. 1996). However, because it would affect Maine'sregulatoryjurisdiction and it was 11otmade explicitly applicable to Maine, Section 518 does not apply in Maine. 25 U.S.C. 

### § 1735(b). Indeed, Congress considered this very issue: This section does not override the provisions ofthe Maine Indian Claims Settlement Act (25 U.S.C. § 1725). Consistent with subsection (h) ofthe Settlement Act, the tribes addressed by the SettlementAct are not eligible to be treatedas States for regulatorypurposes ... Water Quality Act of 1987, Section-by-Section Analysis, reprinted in 1987 U.S.C.C.A.N. 5, 43 (emphasis added); see also Johnson, 498 FJdat 43 n.5. In addition, EPA itselfaddressed this issue in a 1993 guidance document, and reached the same conclusion: The criticaljurisdictional section ofthe Federal [Settlement] Actis§ 1725, which ratifies the State Act, limits the application offederal Indian law in Maine if

### itwould affect State law, and bars the application offuture federal Indian law in Maine unless the federal legislation specificallynotes its applicability inMaine

.... Subsection 1725(h) is a critical provision ofthe Federal [Settlement] Act that explicitly and completely prohibits the applicationto the [Maine Indian tribes] ofany federal law that (1) gives special statustothe [Maine Indian tribes] and (2) "affects orpreempts" Maine's civil, criminal, orregulatory jurisdiction. 25 U.S.C. § 1725(h). This provision specifically includes state environmental law and land use law

... This subsection would seemto invalidate federal laws that might give the [Maine Indian tribes] special status, includingtreatment as a state, for certain environmental programs or purposes ifitwould "affect or preempt" the State's authority, includingthe State'sjurisdiction overenvironmental and land use matters. The final critical provisionofthe 1980 Federal Act forjurisdictional analysis relates to future legislation. Future federal legislation for the benefit oflndiansthat "would affect orpreempt" state laws (including the State Act) would not apply in Maine unless the federal legislation specifically addressed its application in Maine

... Thus, any post-I980 special federal legislative provisions that might give Indians special 

### 4jurisdictional authority (if, for example, any federal laws inthe 1980's provided authority for EPAapproval ofa Tribal environmental program equivalentto a state environmental program delegated by EPAto the state) couldnotprovide the [Maine Indian tribes] with suchjurisdictional authority unless the federal legislation specifically addressed Maine and made the legislation applicable within Maine. EPA Memorandum: Penobscot's Treatment as a State Under CWA, 

### § 518(e), at 7-8 (July 20, 1993) (emphasis in original). Thus, Congress expressly considered and rejected the ideathat, under the Settlement Acts, Maine tribes have (or couldhave) any enviromuental regulatory jurisdiction or authority over Indian territories. In

### Jo.1aine v. Johnson, the First Circuit Comtof Appeals reached the same conclusion in the context ofthe CW A. In light ofthis unique tribal-State relationship in Maine, EPA's proposed reinterpretation ofSection 518 is unlawful and contrary to express Congressional intent 

### with 

### respectto Maine. Contrary to the proposed reinterpretation, Congress has not delegated any regulatory authority under the CWA to Maine's tribes, but has takenpains to emphasize the opposite

- namely, that Section 518 ofthe CWA (and thus any TAS eligibility for Maine's tribes) does not apply in Maine. The State ofMaine asks that EPA confirm that its proposed reinterpretation ofSection 518 will not apply to Maine and that no Maine tribes are orwill be eligible for TAS status for any purpose under Section 518 ofthe CW A and any corresponding regulations.

Dated: October 29, 2014



### 5 JANETT. MILLS ATTORNEY GENERAL

# ~LS**2** 6 State House Station Augusta, ME 04333-0006 (207) 626-8800