### 1 

# PENOBSCOT NATION Department of 

### Natural Resources Response to 

## Comments on Draft 

## Water Quality Standards 

## OnJune 

## 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 orallyas 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 fortheircultural 

### 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

### 2 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 

### eastwest 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 

## Comment

# 1 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 

## Comment

# 1 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 

## Comment

# 2 Anne

# D Burtan environmental justice consultant 

## commented in support ofthe 

### Penobscot 

# WQS and the Nation’s oversight 

### of water quality in 

### Penobscot 

## Waters Response to 

## Comment

# 2 The Department is grateful for the support of its draft standards 

### and its efforts to protect water quality in 

### Penobscot 

## Waters 

## Comment

# 3

### 3 

## Read Brugger a 

## memberof 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 

## Comment

# 3 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 

# CF

# R 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 Comment

# 4 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

# US

# C 1721 et 

## seq and the 

### Maine Implementing 

## Act 30

# MRS

# A 6201 et

## seq and therefore 

### does not 

### have the authority to enact the

# WQS Response to 

## Comment

# 4 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

# E

# P

# A 266 

# F3d 

## 741 74849 7th 

### Cir

## 2001 discussing inherent sovereign authority of tribes to 

### promulgate water quality 

### standards 

## Montana 

# v

# US

# EP

# A 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 

## Comment

# 5 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 

## Comment

# 5 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

# MRS

# A 465

# 3B and 

# 4

# B respectively are not as stringent as the current federal bacteria criteria 

### and so violate

# CWA 510

### 4 see 

### Response to 

## Comment

# 3 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 

## 401

# B and secondary 

## human contact Section 

## 401

# Care 

### based on the 

### 2012 

## EPAwater 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 

# CF

# R 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 Finallythe 

### 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 

## 101

# B and Section 

## 404

# E to clarify this intent 

## Comment

# 6 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

# MRS

# A 6203

# 8 does not specify that the waters surrounding the 

### Penobscot Indian Reservation are part of the 

### Reservation Response to 

## Comment

# 6 The Penobscot Nation disagrees with the Coalition 

## As the 

### United States 

### Department of the Interior has 

### confirmed the 

### Penobscot Indian Reservation includes the 

### Penobscot Riverwherein 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 

# US

# CC

# AN at 

## 3791 See 

# e

# g 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 JamesTierney 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 

## http

# wwwepa

## govregion1 govt tribes

### pdfs

## cd PINRequest4NPDESTAS pdf

### 5 Penobscot 

## River

## 3 Letter 

### from Bennett 

## Katz Chair Maine Indian Tribal State 

## Commission dated 

## November 

# 1 1995 to Lois 

### Cashell Secretary 

## FERC 

# same 4 

## Comment

# 7 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 

## Comment

# 7

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 

## Comment

# 8 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 

## Comment

# 8 See Response to 

## Comment

# 6 Also sustenance fishing is a valid designated use 

### under 

# CWA 101

# a2 and 

## 303

# c2 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 Comment

# 9 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 

# 112cv00254

# GZS Document 

# 582 filed 

# 2

# 414 United States District 

### Court for the District of 

## Maine available via 

# PACER https pacerloginuscourts

## govcsologin loginjsf

## appurl pcl uscourts

## govsearch

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 

# 112cv00254

# GZS Document 

# 462 filed 

# 920

# 13 United States District Court for the District of 

## Maine available via 

## PACER httpspacerlogin

### uscourts

## govcsologin login

### jsf

## appurlpcl uscourts

## govsearch

### 6 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 

## maybe 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

### 7 Response to 

## Comment9c Any activities that 

## may affect water quality are covered 

## bythe

# WQS but the only activities 

### which 

## may actually 

### be impacted 

## bythe

# 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 

## Comment5 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 105

# B8b 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 

## Comment9e 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 105

# B8b 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

# US

# C 1313

# c2 WQS 102 expressly provides that 

# “t hese Standards will 

## become applicable 

### and effective for purposes of the 

### Clean Water 

## Act 33

# US

# C 1251 1387 if 

### and to the extent they are 

### approved by

## EPA pursuant to 

### Clean Water Act 

## 303

# c 33

# US

# C

### 8 

## 1313c).” This requirement is also 

### acknowledged in

# WQS 105

# Awhich states that 

# “

# whenever the Nation revises oradopts a 

## new standard the revised or

## new standard shall 

### be submitted to 

## EPA for 

### review pursuant to

# CWA 303

# c2 33

# US

# C 1313

# c

# 2 as 

### amended.” 

## Comment9f 

# WQS 201

# D 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

# CF

# R 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 202

# A5 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 202

# A6 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

### 9 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 rely

### on “coordination with federal tribal 

### and state 

### agencies as appropriate,” as provided in

# WQS 202

# A Moreover any assumptions 

### used must be consistent with the federal requirements specified in 

### 40

# CF

# R 122.44

# d Comment9i 

# WQS 202

# A13 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 

## Comment9i 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

# CF

# R Part 

## 131 even if that 

## means that 

### Penobscot Waters are afforded 

### more protection than 

### under Maine’s standards 

## Comment9j 

# WQS 301

# C includes 

## human health criteria based 

### on a fish ingestion rate of 

### 286 

## gramsday and a cancer risk level of 

## 1x10

## 6 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 

## Comments5 and 

## 9g See also

### 40

# CF

# R 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 

## 106 is 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

# C

# MR 584 

# ME DEP’s Surface 

### Water Quality Criteriafor 

### Toxic Pollutants for all carcinogenic chemicals except inorganic 

### arsenic 

## Comment

# 9k

### 10 

## 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 Comment9l 

# 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 

## Comment9l This appears to 

### be a 

## comment on Section 

## 301

# D prohibiting the 

### placement into 

### Penobscot 

## Waters including 

### wetlands of fill or related 

### material 

## However Section 

## 301

# D 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 

# USArmy Corps of Engineers under

# CWA 404 Comment

# 9m The commenter asks for the source of several of the standards for the 

### primary

## human contact cultural 

### and ceremonial designated 

### use in

# WQS 401

# B including for chlorophyll 

### a in 

# WQS 401

# B2 and for several other contaminants listed in

# WQS 401

# B3 The commenter then states that the concentration of 

### 8

# _gL for chlorophyll 

### a in

# WQS 401

# B3 is inconsistent 

### with any 

## Maine criterion 

### and that there are criteria listed in

# WQS 401

# D for other substances including total inorganic 

### nitrogen mercury

# DDT PCBs and selenium for

### which 

## Maine does not 

### have corresponding regulations 

### Response to 

## Comment

# 9m 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

### 11 

## The Department reviewed the 

### mercury criteria in

# WQS 401

# B3 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 

## 401

# E 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 401

# C

# 2 high quality coldwater fishery 

# WQS 401

# E

# 3 and coldwater fishery 

# WQS 401

# F

# 4 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 401

# B4 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 

### bythe 

### Penobscot Nation