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PENOBSCOT NATION

Department of Natural Resources

Response to Comments on Draft Water Quality Standards

On June 11 2014 the Penobscot Nation Department of Natural Resources “Department”

published a notice in the Bangor Daily News stating that draft Penobscot Water Quality Standards

“WQS” were available for public review and comment prior to adoption of final WQS by the

Penobscot Nation A copy of the notice together with a copy of the draft WQS also was made

available on the Department website and copies of the notice and WQS were emailed directly to

the US Environmental Protection Agency Region 1 New England Maine Department of

Environmental Protection US Fish and Wildlife Service National Oceanic and Atmospheric

Administration Atlantic Salmon Federation Maine Rivers Penobscot River Restoration Trust

and Penobscot Nation tribal government officials and employees The public was given until

August 11 2014 to provide written comments The Department also held a public hearing on

August 6 2014 at the Penobscot Nation Community Center Indian Island Maine to give the

public the opportunity to present their comments orally as well as in writing

The Department received written comments from two members of the public the Natural

Resources Council of Maine the State of Maine and a coalition of companies and municipalities

with interests in the Penobscot River watershed “Municipal and Industry Coalition” 1 The

Department also received oral comments from 18 individuals at the public hearing The

Department has reviewed all the comments it received from the above described outreach and is

responding to all significant comments as set forth below

Comments Received at Public Hearing

Approximately 50 people attended the public hearing Of the 18 people who spoke at the

hearing half were Penobscot members and the other half were nearby residents and other

interested individuals All 18 commenters spoke in support of the WQS

All the Penobscot commenters described the central role that the Penobscot River plays in

the life of the tribe and of their obligation as tribal members to protect the river The commenters

noted the close contact that they have with the river from living next to it swimming in it and

eating fish from it Several also noted their dependence on the river fortheir cultural and traditional

practices and beliefs which involve using the river itself plants that grow in and around it and

animals that live and swim in it and frequent its shores These commenters also described the

spiritual quality that the river has in Penobscot culture

1

The Municipal and Industry Coalition consists of the City of Brewer Town of Bucksport Town

of East Millinocket Town of Howland Town of Lincoln Town of Mattawamkeag Town of

Millinocket Town of Orono GuilfordSangerville Sanitary District Lincoln Sanitary District

Veazie Sewer District Covanta Maine LLC Great Northern Paper Company LLC Kruger

Energy USA Inc Lincoln Paper and Tissue LLC Red Shield Acquisition LLC True Textiles

Inc and Verso Paper Corporation

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In light of their connection to the Penobscot River Penobscot commenters emphasized that

the health of the river is critical to the tribe’s survival in terms of preserving tribal culture

protecting the health of individual tribal members and safeguarding the plants and wildlife that

depend upon the river and its ecosystem Several commenters stated that they viewed themselves

as stewards of the river and several viewed the WQS as being an expression of the tribe’s

sovereignty and right to protect its culture and very existence A number of nonmember

commenters agreed stating that the Penobscot Nation has been the best steward of the river and

sets an example for others to follow

Both member and nonmember commenters expressed concerns with proposed

development in and around the river and its watershed Specific concerns mentioned were the

east west corridor mountaintop mining landfills and an oil pipeline The commenters saw the

WQS as a way to protect the river and ensure its management as a resource now and for future

generations

All commenters expressed appreciation to the Penobscot Nation and to the Penobscot

Nation Department of Natural Resources in particular for developing the WQS

Response to Public Hearing Comments

The Department sincerely thanks the commenters for their support and encouragement

Written Comments Received

Comment1

The Natural Resources Council of Maine commented in support of the Penobscot WQS

and expressed particular support for criteria in the WQS that reflect increased fish consumption

rates and also for the bacteria and chlorophyll a criteria in the WQS

Response to Comment1

The Department appreciates the support of the Natural Resources Council of Maine and its

recognition of the importance of water quality for the Penobscot River and the Penobscot Nation

Comment2

Anne D Burt an environmental justice consultant commented in support of the Penobscot

WQS and the Nation’s oversight of water quality in Penobscot Waters

Response to Comment2

The Department is grateful for the support of its draft standards and its efforts to protect

water quality in Penobscot Waters

Comment3

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Read Brugger a member of the public commented in support of the Penobscot WQS and

the Penobscot Nation’s stewardship over its water resources He stated that the WQS would

contribute to the health of the Penobscot River ensure compliance with federal standards when

state standards are less stringent than the federal and provide for management of water resources

in a manner benefiting all members of the community

Response to Comment3

The Department appreciates the expression of support for the WQS To clarify a point

made in Mr Brugger’s comment Penobscot Waters will be subject to standards that are at least as

stringent as federal water quality criteria as required by Clean Water Act “CWA” 510

Penobscot standards may be more stringent than federal standards pursuant to CWA 510 and 40

CFR 131.4 a Moreover since Penobscot WQS may not be less stringent than the federal

they will not incorporate criteria in the Maine WQS that do not meet CWA requirements See

Response to Comment 5

Comment4

The State of Maine commented that the Penobscot Nation does not have environmental

regulatory authority over Penobscot Waters as defined in the Penobscot WQS due to the Maine

Indian Land Claims Settlement Act 25 USC 1721 et seq and the Maine Implementing Act

30 MRSA 6201 et seq and therefore does not have the authority to enact the WQS

Response to Comment4

The Penobscot Nation maintains that it has inherent sovereign authority to enact the WQS

as set forth in Section 101 of the WQS See Bottomly v Passamaquoddy Tribe 599 F2d 1061

1st Cir 1979 until Congress acts Indian tribes retain their inherent sovereign powers The

promulgation of water quality standards to protect the Nation’s reservation sustenance fishery in

the Penobscot River involves the exercise of just such authority See Wisconsin v EPA 266

F3d 741 748 49 7th Cir2001 discussing inherent sovereign authority of tribes to promulgate

water quality standards Montana v US EPA 137 F3d 1135 1141 9th Cir 1998 same

City of Albuquerque 97 F3d at 418 423 n12 same Congress has not divested the Penobscot

Nation of such authority

Comment5

The State of Maine also commented that the Maine water quality standards are adequate

and there is therefore no need for the Penobscot Nation to enact tribal standards

Response to Comment5

The Maine WQS are in fact inadequate in several significant respects For example

Maine’s bacteria criteria for Class B and Class C waters 38 MRSA 465 3B and 4B

respectively are not as stringent as the current federal bacteria criteria and so violate CWA 510

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see Response to Comment3 Maine’s criteria are based on 1986 EPA water quality criteria but

EPA issued updated water quality criteria including bacteria criteria in 2012 The Penobscot

standards for bacteria in waters designated primary human contact cultural and ceremonial

Section 401Band secondary human contact Section 401Care based on the 2012 EPA water

quality criteria

In addition the human health criteria listed in the Penobscot WQS Appendix IV reflect a

fish ingestion rate 286 grams per day based on the Wabanaki Traditional Cultural Lifeways

Exposure Scenario 2009 that is significantly higher than the rate used to calculate Maine’s human

health criteria 32.4 grams per day except for inorganic arsenic which uses 138 grams per day in

06096 CMR 584 Appendix A Maine’s human health criteria are therefore inappropriate for

Penobscot Waters

Also even if the Maine WQS were adequate the Penobscot Nation would have the right

to impose more stringent standards if it determined that they were necessary CWA 510 40

CFR 131.4 a The Penobscot Nation determined that more stringent human health criteria

were necessary to protect tribal members that consume a significant amount of fish and shellfish

from Penobscot Waters in accordance with traditional and cultural practices

Finally the Penobscot Nation wishes to make clear that at the same time as its WQS are

more stringent than the Maine WQS in some instances in all instances the Penobscot WQS are

intended to be at least as stringent as the Maine WQS The Penobscot WQS have therefore been

revised by adding language in Section 101B and Section 404Eto clarify this intent

Comment6

The Municipal and Industry Coalition maintains that the Penobscot Nation does not have

jurisdiction over Penobscot Waters as defined in the Penobscot WQS because the Maine

Implementing Act 30 MRSA 62038 does not specify that the waters surrounding the

Penobscot Indian Reservation are part of the Reservation

Response to Comment6

The Penobscot Nation disagrees with the Coalition As the United States Department of

the Interior has confirmed the Penobscot Indian Reservation includes the Penobscot River wherein

Congress confirmed that the Penobscot Nation engages in “expressly retained sovereign

activities,” namely sustenance fishing hunting and trapping S Rep No 96957 at 15 HR

Rep No 961353 at 15 reprinted in 1980 USCCAN at 3791 See eg Letter from US

Department of the Interior Deputy Solicitor General Edward B Cohen to US EPA Region 1

Regional Administrator John P DeVillars p 4 Sept 2 1997 2 See also Opinion of Maine

Attorney General James Tierney dated February 16 1988 to William J Vail Chair Atlantic Sea

Run Salmon Commission confirming the Penobscot Nation’s sustenance fishing right in the

2

The letter from Edward B Cohen is an attachment to the Penobscot Nation’s 2012 request for

an EPA determination of qualification for NPDES permit program approval available at

httpwww epa gov region1govt tribespdfscd PINRequest4NPDESTAS pdf

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Penobscot River 3 Letter from Bennett Katz Chair Maine Indian Tribal State Commission dated

November 1 1995 to Lois Cashell Secretary FERC same4

Comment7

The Municipal and Industry Coalition comments that the Penobscot Nation cannot

receive “treatment as a state” “TAS” to establish water quality standards under CWA 518 due

to the provisions of the Maine Indian Claims Settlement Act and the Maine Implementing Act

the legislative history of CWA 518 and the holding in Maine v Johnson 498 F3d 37 1st Cir

2007

Response to Comment7

This comment is not a comment on the Penobscot WQS but rather on the Penobscot

Nation’s authority to seek TAS for a water quality standards program under the CWA It

therefore is not addressed here The Municipal and Industry Coalition may raise the comment at

such time as the Penobscot Nation seeks TAS and it will be addressed as part of that process

Comment8

The Municipal and Industry Coalition maintains that sustenance fishing is not permitted

in waters outside the Penobscot Indian Reservation that the Penobscot Waters regulated in the

Penobscot WQS are outside of the Penobscot Indian Reservation and that sustenance fishing

therefore cannot be included as a designated use in the Penobscot WQS

Response to Comment8

See Response to Comment 6 Also sustenance fishing is a valid designated use under

CWA 101 a2 and 303c2 and 40 CFR Part 131 because it is designed to protect the

health and welfare of tribal members enhance water quality and serve the purposes of the CWA

Comment9

The Municipal and Industry Coalition maintains that numerous narrative and numeric

water quality standards are unclear inconsistent with existing Maine standards andor

3

The opinion of Attorney General Tierney is attached as Exhibit B to the United States’

Complaint in Intervention in case 112cv 00254 GZS Document 582 filed 2414 United

States District Court for the District of Maine available via PACER

https pacerloginuscourtsgov csologin loginjsf appurl pcl uscourtsgov search

4

The letter of Bennett Katz is attached as Exhibit 1 to the United States’ Reply to the State of

Maine’s Opposition to the United States’ Motion to Intervene in case 112cv 00254 GZS

Document 462 filed 92013 United States District Court for the District of Maine available

via PACER httpspacerloginuscourtsgov csologin loginjsf appurlpcluscourtsgov search

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inappropriate for regulation of the Penobscot River and its tributaries and branches Their

specific comments and the Department’s corresponding responses are provided below

Comment 9a

Penobscot WQS 101 promotes the “propagation of native and other desirable aquatic

plant and animal life,” but such propagation may be inconsistent with the protection of

indigenous fish and other aquatic species under the Maine WQS

Response to Comment 9a

The Penobscot WQS are separate and distinct from the Maine WQS As such the

Penobscot Nation is entitled to promote different priorities from Maine in its WQS even if the

Penobscot priorities have the potential to be inconsistent with Maine priorities However the

propagation of native and other aquatic plant and animal life under the Penobscot WQS is

intended to complement not conflict with the propagation of indigenous aquatic species

pursuant to the Maine WQS Moreover the Penobscot WQS are intended to be at least as

stringent as the Maine WQS see Response to Comment 5

Comment 9b

Penobscot WQS 101 refers to future beneficial uses of Penobscot Waters but future

uses are not clearly identified and will likely conflict with Maine regulations

Response to Comment 9b

Future uses of Penobscot Waters cannot be identified in the WQS because they are by

definition not currently occurring in Penobscot Waters Future uses may be impacted by a range

of social economic and other conditions on the Penobscot Nation and in and upstream from

Penobscot Waters However the potential future uses of any Penobscot Waters are currently

limited to the designated uses listed in Subchapter IV of the Penobscot WQS and include

domestic cultural agricultural recreational and industrial uses Table 1 identifies the current

designated uses of all Penobscot Waters Any revisions to those designated uses would need to

be made pursuant to the process outlined in WQS 105 which provides among other things for

public notice and comment and judicial review in Penobscot Nation Tribal Court

Future uses of Penobscot Waters are not likely to conflict with designated uses of Maine

waters Under 40 CFR 131.10 the designation of uses must “take into consideration the water

quality standards of downstream waters” and ensure that “water quality standards provide for the

attainment and maintenance of the water quality standards of downstream waters.”

Comment 9c

Penobscot WQS 102 applies the water quality standards to all persons and all activities

within the Penobscot Nation but it does not specify activities that will be regulated and is

broader than activities regulated under Maine laws

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Response to Comment 9c

Any activities that may affect water quality are covered by the WQS but the only

activities which may actually be impacted by the WQS are those which may cause degradation

of Penobscot Waters lead to violations of narrative or numeric standards or otherwise violate

the terms and conditions of the WQS as specified in the WQS It is therefore necessary to

consider the WQS as a whole in order to identify covered activities and by not listing specific

regulated activities the WQS avoid the risk of over or under regulation See also Response to

Comment 5 Penobscot WQS may be more stringent than Maine WQS

Comment 9d

The definition of “point source” in WQS 103 29 does not contain many exemptions

that are contained in Maine law including erosion related to certain agricultural activities

aquaculture operations and oil and hazardous substance spill response discharges

Response to Comment 9d

The exemptions to the definition of “point source” referenced by the Municipal and Industry

Coalition are exemptions to the requirement to obtain a waste discharge license under Maine

law 38 MRSA 413 Those exemptions are not relevant here because the Penobscot WQS do not

contain requirements for NPDES permits or other licenses for discharges The definition of

“point source” in WQS 103 29 is consistent with the federal definition under the Clean Water

Act

Comment 9e

WQS 105B8b provides for revised standards to become effective upon approval of

the Penobscot Nation Chief and Tribal Council but revisions to WQS require EPA approval

prior to taking effect

Response to Comment 9e

The Penobscot WQS are tribal law and as such do not require EPA approval before

becoming effective as the law of the Penobscot Nation WQS 105B8b therefore does not

require revision for the reason stated by the commenter In reviewing this provision however

the Department realized that according to the Penobscot Nation’s internal legislative process

revisions to the WQS should not become effective until approved by the Penobscot Nation

General Meeting and the Department has revised the provision accordingly

As a separate matter to the extent that the Penobscot Nation desires to have the WQS

effective for CWA purposes then the WQS must be approved by EPA See CWA 303 c2

33 USC 1313c2 WQS 102 expressly provides that “t hese Standards will become

applicable and effective for purposes of the Clean Water Act 33 USC 12511387 if and to

the extent they are approved by EPA pursuant to Clean Water Act 303 c 33 USC

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1313c).” This requirement is also acknowledged in WQS 105A which states that

“whenever the Nation revises or adopts a new standard the revised or new standard shall be

submitted to EPA for review pursuant to CWA 303 c2 33 USC 1313c2 as

amended.”

Comment9f

WQS 201D provides for the designation of certain highquality waters as Outstanding

Tribal Resource Waters but this designation may conflict with Maine’s management goals for

the same waters

Response to Comment9f

The Nation has established valid designated uses including the Outstanding Tribal

Resource Waters designated use under CWA 101 a2 and 303 c2 and 40 CFR Part 131

to protect the health and welfare of its members and enhance the quality of Penobscot Waters

As discussed in the Response to Comment 9a the Penobscot WQS are separate and distinct from

Maine WQS but the Penobscot Nation intends for its WQS to complement the Maine WQS The

Nation anticipates working with the State of Maine to resolve any discrepancies that may arise

from the application of different designated uses in upstream and downstream waters See also

Response to Comment 5

Comment 9g

WQS 202A5 requires the “highest and best degree of wastewater treatment

practicable,” but the Nation’s judgment may differ from the judgment of Maine or EPA which

would create uncertainties for dischargers

Response to Comment 9g

The Penobscot WQS are designed to ensure that the water quality of Penobscot Waters

a meets the standards of the CWA b is no less protected than under the standards required by

Maine law and c supports the uses of members of the Penobscot Nation in particular the

taking of fish for sustenance Although the Nation will exercise its discretion in determining the

highest and best degree of wastewater treatment practicable and may require a more protective

form of wastewater treatment than the State of Maine this is no different than divergent

requirements in neighboring states Under the CWA and its implementing regulations

neighboring jurisdictions are encouraged to cooperate to ensure adequate protection of water

resources The Penobscot Nation is committed to working with the State of Maine to minimize

the effects of Penobscot requirements that may be more stringent than those required by Maine

Comment 9h

WQS 202A6 notes that the Water Resources Program will develop water quality

based effluent limitations but does not specify the assumptions that would be used to develop

such effluent limitations

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Response to Comment 9h

The Department may specify assumptions that would be used to develop water quality

based effluent limitations in the future but in the meantime will relyon “coordination with

federal tribal and state agencies as appropriate,” as provided in WQS 202A Moreover any

assumptions used must be consistent with the federal requirements specified in 40 CFR

122.44 d

Comment 9i

WQS 202A13 provides for the Water Resources Program to determine whether in

stream flows and water levels are adequate to support designated uses but existing uses and

permits could be significantly impacted by any changes the Nation makes to existing flows

Response to Comment 9i

The Nation will take steps to ensure that its designated uses are adequately protected but

will also work cooperatively with the State of Maine to prevent unintended or avoidable impacts

on Maine’s WQS and permitting program The Nation anticipates working with the State of

Maine as well as with EPA to ensure adequate protection of Penobscot Waters Nevertheless

the Nation may ensure that the designated uses of Penobscot Waters are supported in a manner

consistent with the CWA and 40 CFR Part 131 even if that means that Penobscot Waters are

afforded more protection than under Maine’s standards

Comment9j

WQS 301C includes human health criteria based on a fish ingestion rate of 286

gramsday and a cancer risk level of 1x106 but this approach creates the potential for

dischargers to exceed criteria that are not considered violations under Maine law

Response to Comment9j

The Nation’s WQS may be more stringent than Maine standards See Responses to

Comments 5 and 9g See also 40 CFR 131.10 b In order to ensure adequate protection of

the health and welfare of tribal members the fish ingestion rate is based on the Wabanaki

Traditional Cultural Lifeways Exposure Scenario 2009 and specifically on the inland non

anadromous diet contained in that Scenario because the populations of anadromous species in

Penobscot Waters are currently too low to be harvested in significant quantities See id The

cancer risk level of 1 x 106is based on the risk level used in EPA’s National Recommended

Water Quality Criteriafor deriving human health criteria for carcinogenic chemicals and the risk

level used by Maine 06096 CMR 584 ME DEP’s Surface Water Quality Criteriafor Toxic

Pollutants for all carcinogenic chemicals except inorganic arsenic

Comment 9k

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The proposed temperature standard in WQS 302 conflicts with the temperature

standards in ME DEP Chapter 582 because the Penobscot standard does not provide for site

specific temperature criteria

Response to Comment 9k

There is no requirement in the CWA or federal regulations that the Penobscot WQS be

the same as the Maine WQS as noted in many of the responses above nor is there a requirement

for sitespecific temperature criteria in lieu of generally applicable temperature criteria In

addition it should be noted that in some instances the Penobscot WQS provide for temperature

ranges for example WQS 302 Moreover the Penobscot WQS provide opportunities for

sitespecific conditions to be considered and taken into account notably in the provisions for

mixing zones 307 variances 502 and compliance schedules 503

Comment 9l

WQS 3 prohibits any filling or altering of wetlands even if approved by the US Army

Corps of Engineers or Maine DEP under wetland permitting statutes

Response to Comment 9l

This appears to be a comment on Section 301D prohibiting the placement into

Penobscot Waters including wetlands of fill or related material However Section 301D

specifically authorizes the placement of fill or similarmaterials into Penobscot Waters or onto

their banks if authorized by a permit for the discharge of dredged or fill material issued by the

US Army Corps of Engineers under CWA 404

Comment9m

The commenter asks for the source of several of the standards for the primaryhuman

contact cultural and ceremonial designated use in WQS 401Bincluding for chlorophyll a in

WQS 401B2 and for several other contaminants listed in WQS 401B3 The

commenter then states that the concentration of 8 _g L for chlorophyll a in WQS 401B3 is

inconsistent with any Maine criterion and that there are criteria listed in WQS 401D for other

substances including total inorganic nitrogen mercury DDT PCBs and selenium for which

Maine does not have corresponding regulations

Response to Comment9m

The water column chlorophyll a concentration of 8 _gL is based on avoiding algal

bloom conditions which when present can cause skin irritation gastrointestinal disorders or

other health effects The concentration used in the WQS is consistent with the water column

chlorophyll a environmental response variable for class B C and GPA waters in Maine DEP’s

Draft Nutrient Criteriafor Surface Waters 06096 Chapter 583

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The Department reviewed the mercury criteria in WQS 401B3 as a result of this

comment and has revised the criteria to reflect the federal drinking water standard MCL This

approach is now the same as the approach taken with the other criteria mentioned by the

commenter which also are based on the federal drinking water MCLs

As discussed previously more stringent water quality protection under Penobscot WQS

than under Maine WQS does not invalidate or require changes to the Penobscot WQS

Comment 9n

The WQS contain a pH range of 6.6 to 8.8 for cold water fisheries in 401E but contain

a pH range of5 to 9 in the appendix for acute and chronic criteria making it unclear which pH

range should apply

Response to Comment 9n

The pH range listed in Appendix II for acute and chronic criteria for aquatic life is 6.5 to

9.0 not 5 to 9 and is based on the EPA criteria The pH ranges in other parts of the WQS were

based on the Maine criteria However the Department has since learned that the Maine criteria

have not been updated since EPA issued the Gold Book in 1986 and therefore these and other pH

ranges in the WQS have all been revised to incorporate the EPA criteria The following provisions

are affected designated uses for secondary human contact WQS 401C2 high quality

coldwater fishery WQS 401E3 and coldwater fishery WQS 401F4 and Appendix

IV human health criteria In addition the criteria for secondary human contact were added to

those for primary human contact cultural and ceremonial use WQS 401B4 for the sake of

consistency

All changes made to the WQS in light of the comments received are indicated above in

the responses to comments and are indicated by underline and strike out in the final Penobscot

WQS In addition in reviewing the WQS the Department realized that the East Branch

Penobscot River was incorrectly identified as trust land only when it is in fact also part of the

Penobscot Indian Reservation WQS 403 Table 1 –Designated Use Table this error has been

corrected Also the Department noticed that various references in Appendix II of the WQS to

Subchapters III and IV are to a prior draft of the WQS and have been corrected as indicated in

the final WQS Finally in order to avoid any chance of confusion the Department has clarified

in WQS 102 that these final Penobscot WQS supersede any prior WQS that may have been

enacted by the Penobscot Nation

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