UNtiED SIAIES ENVIRONMENIAL PROIECIION**A~ENCY RE~ION**  I

March 16,2015 Patricia W. Aho, Commissioner 5 POST OFFICE SQUARE SUITE l.OO BOSTON, fvfASSACHUSETTS 02l.oq-3ql.2

Maine Department of Environmental Protection 17 State House Station Augusta, ME 04333-0017 Re: Review and Decision on Water Quality Standards Revisions Dear Commissioner Aho: On February 2, 2015, EPA issued its decision approving or disapproving many ofMaine's new and revised water quality standards ("WQS") as they relate to waters in Indian lands in Maine (and, for some WQS, as they relate to all waters in the State). In that decision, EPA also identified several provisions that EPA did not take action on, primarily because the Department of Environmental Protection ("DEP") was planning to update them soon to ensure their consistency with federal Clean Water Act ("CWA") requirements. However , in response to Maine's subsequent request that EPA nevertheless act on those provisions, EPA is hereby issuing its decision as to those provisions. 1 Approvals Pursuant to Section 303(c)(3) ofthe CWA and 40 C.F.R. part 131, I hereby approve the following new and revised water quality standards: For estuarine and marine waters in Indian lands: • The ammonia criteria for protection of aquatic life in saltwater in DEP Rule Chapter 584, Appendix A, submitted to EPA on January 11, 2006. For all waters outside of waters in Indian lands: • The revisions made in L.D. 1304 at 38 M.R.S. 

### § 465(3.8) and (4.8), which extended the applicability of the bacteria criteria for Class 8 and Class C waters to include bacteria of domestic animal origin, submitted to EPA on January 11, 2006; and • The revision made in L.D. 1778 at 38 M.R

. S. 

### § 465-A( 1.8), which extended the applicability of the bacteria criteria for Class GPA waters to include bacteria of domestic animal origin, submitted to EPA on April 8, 2008.

1 For the sake of completeness, EPA is also making its decision with respect to the pre-2004 recreation (bacteria) criteria for Class B, GPA, SB, and SC waters in Indian lands, as explained further below.Disapprovals Pursuant to Section 303(c)(3) ofthe CWA and 40 C

.F.R. part 131, I hereby disapprove the fo ll owing new and revised water quality standards : For all waters in Indian lands: • The numeric bacteria criteria for the protection of primar y contact recreation in Class 8, C , GPA , SB and SC waters in 38 M.R.S. §§ 465(3.8) and (4.8 ), 465-A(l.8), and 465- 8 (2. 8) and (3. 8 ), su bmitted to EPA in 1985; • The rev ision s to the numeric bacteria criteria for the protecti on of primary contact recreation for C las s 8 and C waters in 38 M.R.S. § 465(3.8) and (4.8), submitted to EPA on January II , 2006; • The revisions made in L.D

. 1450 at 38 M

. R

. S. §§ 465(3.8) and (4.8), and 465-8(2.8) and (3.8), which extended the app li cability ofthe bacteria criteria for the protection of primary contact recreation in Class, 8 , C, S 8 and SC waters to include bacteria of domestic animal origin, submitted to EPA on January 11, 2006; • The revis ion made in L.D. 1778 at 38 M.R.S. § 465-A( 1.8 ) whic h extended the applicability of the bacteria criteria for the protection of primary co ntact recreation in Class GPA waters to include bacteria of domestic animal origin, s ubmitted to EPA on April 8 , 2008; • For fresh waters in In dian lands, the ammonia criteria for protection of aquatic life in f res h water in DEP Ru le C h apter 584 , App endix A, submitted to EPA on January 1 1 , 2006;and • The water quality standards revision s submitted to EPA on January 14 ,20 13 , related to the 104 cancer ri sk level to be used to calculate human health criteria for inorganic arsenic, at 38 M.R.S. §420(2

.J ), as set forth in P.L. 2011, Ch. 194 ( L. D. 515) "An Act To Revie w State Water Quality Standards"; the last sentence in Maine Rule Chapter 584 , § 4; and first sentence ofFootnote aME in Table I of Appendix A ofCh. 584. For all water s throughout Maine, including in Indian lands: • The revi s ion s made in L.D

. 1 304 at 38 M.R.S. § 464(4 .A(3)(a)) , and§ 465((3

. C.( 1)) and (4.C) , rela ted to certain pesticide discharges, submitted to E PA on January 11 , 2006; • The phenol criteria for the protection of human health consumption of water plus organisms, in DEP Rule Chapter 584, Append ix A, submitted to EPA on January 14, 2013;and • The re v ision made in L.D. 1430 at 38 M.R.S. § 464(4.A(3)(b)), related to certain pesticide di sc harges to tributaries of GPA waters, submitted to EPA on February 27, 20 14. For waters outside of waters in Indian lands: • The reclas sification of a 0.3 mile segment of Long Creek that flows through Westbrook from Class B to Class C, submitted to EPA on December 7 , 2009. Under CWA 

### § 303(c)(3) and EPA's implementing regulations at 40 C.F.R. 

### §§ 131.21 and 131.22 , when EPA disapproves a state's new or rev i sed water quality s tandard , it must "specify 2the changes" necessary to meet the applicable requirements of the Act and EPA's regulations

. The CWA requires that these disapprovals be addressed in a timely manner. In the first in stance , the CWA and EPA's re gulations provide the State up to 90 days to revise its WQS, and E PA prefers that Maine address these disapprovals under its regu lato ry develo pment proce s s. However, if the State does not adopt necessary cha n ges, EPA will propose and promulgate appropriate water quality standards for waters in Maine. The fo ll owing paragraphs describe the rationale for the approva l and disapproval decisions li sted above as we ll as recommended remedies for each disapproval. Supporting Discussion of Approvals For all waters in I ndian lands: Ammonia Criteria for Sa ltwater EPA's decision on the saltwater ammonia aquatic li fe criter ia in Chapter 58 4 , Appendix A , Table II , s ubmi tted to EPA on January 11, 2006 , for estuarine and marine wa ters in Indian lands is based on whether the criteria protect aquatic life uses , including consi deration of EPA ' s National Recommended Water Quality Criteria published pursuant to Section 304(a) of the CW A. EPA finds that Maine's ammonia criteria for the protection of aquatic life in saltwater are scient ifically defensible and are protective of designated uses for the reasons explained in EPA ' s criteria document for ammoni a in saltwater. 2 EPA approved these c ri teria for estuarine and marine waters outside Indian lands on J u ly 7 , 2006 , and is now appro ving them for estuarine and marine waters in Indian lands. For all waters outside of waters in Indian lands: Bacteria Criteri a for the Protection of Primar y. Co ntac t Recreation (Recreational Criteria) E PA i s ap proving the revisions for Class B , C, and GP A waters o ut side of waters in Indian land s that extended the applicab ility of the recreational criteria to include bacteria of domestic animal o ri gi n, as the se revisions incorporate additional protection for the primary contact recrea tion designated u se and are an improvement over the previous criteria

. Howev er, as EPA h as explained to D EP in the pas t, the criteria's fa ilure to include bacteria from all fecal sources, including w ild animal sources, continues to be a concern. Human pathogens are present in both domestic and wild life animal fecal sources, and there is, therefore , a potential risk from recreational exposure in animal-impacted waters (20 12 Recreational Water Quality Criteria ( RWQC) , see section 3.5 .1- 2). EPA strongly recommends that in developing any revised rec reational criteria, DEP ensure that they be writt en to apply to all bacteria sources , or deve lop s ite

- specific alternative criteria that are scientifica ll y defens ible and protective of the pri mary contact recreation use (see Chapter 6 of t he 20 1 2 RWQC document for a discussion about using quantitat ive microbial risk assessment or other methods for developing alternative site

specific criteria)

.

2 EPA , Ambient Wate r Quality Criteria fo r Ammonia ( Sa/twate r ) -198 9 , E PA 440/ 5-88 -004 , April 1989.

3In addition , as explained in our December 2, 2013**Jette~** to D E P, E PA strongly recommends that DEP rev ise all ofMaine's recreational criteria to be consistent wi th EPA ' s 2012 recommendations , including the addition of frequency and duration components of the criteria (discus sed in more detail below). Also as di scussed further below, EPA recommend s that Maine apply the criteria to a longer time period than May 15 1h to September 30 1 h. We understand that DEP is already working on this effort , as indica t ed in the schedule that Maine ' s Healthy Beaches Program submitted to EPA on February 17,2015, and that D EP expects to be requesting informal EPA review of new proposed recreational criteria later this year. Supporting Discussion of Disapprovals For all waters in Indian lands : Ammonia Criteria for Fresh Waters EPA ' s disapproval o f the ammonia aquatic life criteria in Chapter 584, Appe ndix A, for fresh waters in Indian lands is based on a review of whether the criteria protect t he applicable designated uses and are based on sound scientific rationale. EPA revised its CW A Section 304(a) recommended ammonia criteria for fresh waters in August 2013 and incorporated the latest science for fresh water mussels and snails , which are sensitive to ammo nia toxicity and not included in EPA's 1999 ammonia criteria recommendations . Maine' s cri teria are not protective of the designated use because they are not protective of fresh water mussels and snails

. In the absence of supporting scientific information to justify a finding that Maine 's current ammonia criteria adequately protect the aquatic life designated use , EPA must disapprove the criteria. To assure compliance wi th the CWA, Maine must adopt ammonia criteria that protect the designated use , or provide s ufficient justifica tion based on sound science that the current ammonia criteria are adequa tely protective of the use. On December 2, 2013 , EPA recommended that DEP update its ammonia criteria for waters outside of Indian lands , in light of EPA ' s 20 1 3 revi s ed criteria recommendations. We recommend that DEP adopt revised ammonia criteria for all fresh waters , both outside and inside Indian lands , in a single action. Recreational Criteria As explained in EPA's February 2, 2015 decision , EPA had not approved any of Maine's water quali ty s tandards for waters in Indian lands in Maine prior to that date. Cons equently , in reviewing the ade quacy of Maine's recreational criteria for those waters now, it is necessary to review those aspects of the criteria that Maine adopted and submitted before 2003 that are still in effect, as well as any revisions submitted since 2003. The geometric means included in Maine's recreational criteria adopted in 1985 for Class B, and the geometric means and instantaneous levels adopted in 1985 for Class GPA, SB, and SC waters , have not been revised. Other aspects ofthe criteria, for Class B, SB , and SC waters , as well as the numeric and other aspects of the Class C criteria, were re v ised in 2005 , and submitted to EPA in 2006. Revisions to the non-numeric criteria aspects of Class GPA waters were made and submitted to EPA in

.

3 See December 2 , 2013 , letter fro m EPA Region I Office of Ecosys tem Protect ion Dir ector, Ken Moraffto D EP Bureau o f Land and Wate r Quality Director, Michael Kuhns. 42008. EPA has reviewed the 1985 criteria and the 2005 and 2008 rev i s i ons in making its decis i on today

. EPA's disapproval ofthe 1985 recreational criteria, as revised in 2005 and 2008, in 38 M.R.S. §§ 465(3.B) and (4.B), 465

- A(l.B), and 465-B(2.B) and (3.B) for C l ass, B, C, GPA, SB and SC waters in Indian lands, is based on a review of whether the criteria, as a whole, protect the app li cable designated use of primary contact recreation. Until recently, Maine's re crea tional criteria for Class B, C, GPA, SB and SC waters were, with the exception of the exclus i on for bacteria from natural sources, consistent with, or more protective than, EPA's 1986 recreational criteria recommendations. However, EPA pub li shed new recreati onal criteria recommendations i n 2012

. The new recommendations are comprised of two numeric thresholds (geometric mean and s tatistical threshold value, or STV), an averaging duration for the geometric mean, and maximum frequency of exceedance for the STV. Table 1 summari zes Maine's recreational criteria and EPA's current recreational criteria recommendations for fresh and salt waters.



### a e 

# - ame a op1 e an ecommen e T bl 1 M

. 

### d t d d EPA R ddR ecrea wna r1 er1a f I C •t

. 

### Recreational Criteria Maine Recreational Criteria 2012 

### EPA Recreational Element Criteria Recommendations Sources Only app li es to bacteria of human and App lies to a ll sources domestic animal origin Geometric Mean 64 

### e. co/ill 00 ml for Class B 100

- 126 

### e.coli/100 ml for 126 

### e. co !ill 00 ml for Class C fresh waters or 29 

### e.coli/100 ml for C lass GPA 30-35 enterococci/1 00 ml for 8 enterococci/1 00 ml for Class SB fresh or marine water s 14 enterococci/! 00 ml for Class SC Averaging Period None in rule (Maine's assessment 30 days guidance 4 specifies 1 year) STY None 3 20-41 0 

### e. coli! I 00 ml for fresh waters or 1 10-130 ent erococci/ I 00 m l for fres h or marine waters STV exceedance None No t more than 10 % of frequency samp les in 30 days Instantaneous maximum 236 

### e.coli/1 00 ml fo r Class B and C None. (EPA recommends 194 

### e. coli/1 00 ml for C l ass GPA use of a separa te Beach 54 enterococci/ 100 ml for Class SB Actio n Value, or BAV, for 94 enterococci/ 1 00 ml for Class SC beach notifications) (only used for beach notifications and not for assess ing impairment) Whil e Maine's geometric means for all classes of waters are at least as stringent as EPA's currently recommended geometric mean magnitude, Maine's recreationa l criteria in their entirety are not fully protective unless they include an explicit duration and frequency of exceedance. EPA i s disapproving Maine's recreati onal criteria in waters in Indian lands

4 DEP, 2012 Integrated Water Quality Monitoring andAssessment Report , February 21, 20 14 , page 67. 5because of the lack of an exceedance frequency and undefined averaging period in Maine's current criteria. The duration and frequency of EPA's 2012 recommended criteri a are protective, and EPA encourages Maine to adopt the 30-day duration and I 0 % exceedance frequency when revising the criteria for the protection of primary contact u ses. In addition, as discu ssed above, Maine's recreation criteria fail to include bacteria from all fecal sources, including wild animals. In developing**rev~sed** recreational criteria, DEP must either include all bacteria sou rces, or develop site-specific alternative criteria that are scientifically defens ible and protective of the primary contact rec reation use. Finally, EPA recommends that Maine extend the season within which the criteria apply to reflect a longer time period than May 15th to September 30th. Primary recreation includes any activity that people conduct in or on the water. This include s activities such as swimming, windsurfing, waterskiing and diving. EPA is aware that many such activities occur in New England waters in the springtime before May 15th and in the fall after September 30th. EPA recommends that Maine consider extending the season within which the criteria apply to ensure that recreational uses are protected whenever they occur. This could be accompanied by a provision that allows DEP to reduce the seasonal applicabi lity on a site-specific basis if it is demonstrated that such activities do not occur during such longer season. To assure compliance with the CWA, Maine must either adopt recreational bacteria criteria that are consistent with EPA ' s recommended criteria, or provide sufficient justification based on sound science that alternate bacteria criteria are adequately protective of the use . On December 2, 20 13 , EPA recommended that DEP update its re creational criteria for waters outside of Indian lands. 5 We recommend that DEP adopt rev ise d recreational criteria for all waters, both outside and inside Indian lands, in a single action. Cancer Risk Level for Arsenic In its February 2, 2015 decision, EPA disapproved all of Maine's human health criteria ("HHC"), including inorganic arsenic, as applied to waters in Indi an lands because they were based on an inadequate fish consumption rate. 6 Today EPA is disapproving, as applied to those same waters, the water quality standards revisions re lated to the 10" 4 cancer risk level to be used to calculate human health criteria for inorganic arsenic at 38 M.R.S. 

### § 420(2.1), as set forth in P.L. 2011, Ch. 194 (LD 515) "An Act To Review State Water Quality**Stan dards"** **~** the last sentence in Maine Rule Chapter 584, 

### §**4~** and the first sentence of Footnote aME in Table I of Appendix A of Ch. 584. This disapproval is based on a review of whether the cancer risk level ("CRL") of 10-4 result s in criteria that adequately protect the applicable designated use. As EPA explained in detail in its February 2, 20 1 5 decision, EPA has identified and approv ed a designated use of sustenance fishing applicable to the waters in Indian lands in Maine

. EPA further explained that tribal

5 See Decemb er 2, 2013 letter from EPA Region I Office of Ecosystem Protection Director, Ken Moraffto DEP Bureau of Land and Water Quality Director, Michael Kuhns 6 All of Maine ' s HH C except arsenic are based on a fi s h consumption rate ("FC R ") of32.4 g/day, and the arsenic criteria are based on a 138 g/day FCR. Both ofthese rates are well below the FCRs identified in the Wabanaki Cu ltural Lifeways Exposure Scenario, which EPA concluded contains the best currently avai labl e information for the purpose of deriving an FCR for HHC adequate to protect susten ance fishing for tribal waters. 6sustenance fi s hers are to be considered the target general popul ation for the purpose of determining whether human health criteria for tribal waters are adequately protective. For carcinogenic po llutants, EPA's Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (the "2000 Guidance") recommends that states protect the target general population to a level of risk no greater than one in one hundred thousand to one in one million (1 x 1

# o-s to 1 

# o· 6) of an additional cancer occurring in that population

. 7 The 2000 Guidance also provide s that if there are hi ghly expos ed groups or s ubpopulation s within that targe t general population, criteria should protect those consumers to a level o f risk no greater than one in ten tho u sand (1 X 1 0" 4 ). 8 DEP has stated, in its re sponses to comments on the proposed arsenic criteria, that the final criteria- based on an FCR of 138 g/day and a CRL of 10-4

- are adequate to p ro tect sensitive subpopulations in Maine. As noted above, EPA previous ly disapproved the human health criteria, including t he arsenic criteria, because the criteria were based on an FCR that is not representative of an unsuppressed sustenance fish consumption rate by tribal members -the target general population

- in waters in Indian lands. EPA is now also disapproving the requirements to base the arsenic criteria on a 10·4 CRL in the context ofthe criteria already submitted, as applied to waters in Indian lands. The existing record does not support a finding that the use of the 1 

# o- 4 CRL results in human health criteria t hat adequately protect sustenance fishers in tribal waters as the target general population

. To remedy today 's disapproval and EPA's February 2, 2015 disapproval , EPA recommends that Maine revise 38 M.R.S. §420(2.1), the last sentence in Maine Rule Chapter 584, § 4, and first sentence of Foot note aME in Table I of Appendix A ofCh. 584, and adopt arsenic criteria protective of the tribes' sustenance fish ing use in waters in Indian land s. For all waters throughout Maine , including in Indian lands: Pesticide provis ions EPA's disapproval of the revisions at 38 M.R.S. § 464(4.A(3)(a) and (b)) and§ 465((3.C.(l)) and (4

.C), related to certain pesticide discharges, i s based on a rev ie w of whether the revisions protect applicable designated uses. Section 464(4.A(3)) prohibits discharges to tributaries ofGPA waters that would cause water quality degradation that would impair the characteristics and des ignated uses of downstream GPA waters or cause an increase in the trophic state of those GP A waters, but provides exceptions from the prohibition against impairment in subsections (a) and (b) for discharges of aquatic pesticides and chemicals to control invasive species, and of other pesticides if unintended and incidenta l to aerial spraying.

7 EPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Env ironm en tal Protection Agency, Office of Water, Washington, D

.C. EPA-822-B-00

-004, p. 2-6. Available at: htto :l/ www.epa .gov /waterscience /criteria/humanhealth/ method/complete.pdf 8 ld

. 7Similarly, § 465((3.C) provides that discharges to Class B waters may not cause adverse impact to aquatic life in that the receiving waters must be of sufficient quality to support all aquatic species indigenous to the receiving water without detrimental changes in the resident biological community, but provides an exception from this level of protection in s ub section (1) for certain aquatic pesticides and chemical discharges. EPA interprets both of these statutory revisions to be authorizations ofuse impairments when certain types of discharges occur. This i s tantamount to a removal of the designated uses without justification by a use attainability analysis, and therefore is inconsistent with 40 C.F.R. 131.1 O(g). In addition, because they establish circumstances where existing uses do n ot need to be protected, thes e revisions are, in effect, an alteration of the State's antidegradation requirements, which require the protection of existing u ses consistent with 4 0 C .F.R. 

### § 131

. 12(a)( I ). This is inconsistent with the federal antidegradation regulation at 40 C.F.R. 

### § 131.12. For these reasons, EPA is disapproving the revisions. DEP staffhas indicated a willingness to work with Maine's legisla ture to rev ise the provisions related to pesticide discharges to be consistent with other pesticide provisions that EPA determined in its February 2, 2015 decision are not water quality standards, and to delete any statutory authorization of use impairment. Such changes would sufficiently remedy EPA's disapproval. Phenol EPA's disapproval of Mai n es phenol criteria for the protection of human health consumption of water plus organisms, for waters throughout Mai n e, is based on a review of whether the criteria protect the applicable designated uses, including a consideration of EPA's ambient water quality criteria guidance published p ursuant to Section 304(a) of the CWA. While DEP based the criteria on EPA's current guidance, DEP made an inadvertent mathematical error that resul ted in less stringent criteria than the guidance recommends. Specifically, although DEP used the correct derivation formulation, a computational error resulted in Maine adopting a criterion of 10,514 flg/L rather tha n the correctly computed result of 10 ,267 flg/L. EPA alerted DEP to the discrepancy via email on July 22, 2013 and subsequently reviewed DEP's calculations to ensure that all the factors that were used in DEP's calculation were correct and that the error was mathematical, which EPA confirmed to DEP via email on July 23,2013. 9 In the absence of supporting scientific inf ormation to justify a finding that the le ss st ringent criteria adequately protect the designated use, EPA must disapprove the criteria for all waters in Maine. 10 DEP staff acknowledged this error 11 and stated DEP's intention to rev ise the criter i a to correct the error, which would remedy the disapproval.

9 Email correspondence between Ellen Weitzler, EPA, and Brian Kavanah, DEP, Ju ly 22 and July 23,2013. 10 In its February 2, 20 15 decision, EPA also disapproved these criteria for waters in Indian lands due to the use of an inadequate fish consumption rate
. 11 Emai l from Brian Kavanah, DEP to Ellen Weitzler , EPA, September 16,2013

. 8For waters outside of waters in Indian lands: Long Creek Reclassification Maine revised the classification for a 0.3 mile segment of Long Creek in Westbrook, Maine from Class B to C lass C in 2009

. The effect of the reclassification, if approved, is that the Class B designated use for aquatic life wou ld be supp lanted by the less protective aquatic life use assigned to Class C waters, and certain associated criteria wou ld become less stringent. EPA has carefully reviewed the information provided b y DEP in support of the reclassification, as well as public comments submitted by Conservation Law Foundation in opposition to the reclassification. As discussed further below, EPA has concluded that federal regulations at 40 C.F.R. 

### § 131.10(g), which govern the removal of a designated use, apply in thi s case. Because DEP has not provided a use attainability analys i s to demonstrate, based on one or more facto rs in 40 C.F .R. 131. 1 O(g), that Class B aquatic life uses cannot be met, EPA must disapprove the reclassification. The drainage area for the 0.3 mile reach of Long Creek in Westbrook includes the upper reaches of Long Creek in South Portland as well as the Blanchard Brook drainage area, wholly located in Westbrook. Prior to 1990 , a ll waters in Cumberl and County, including Long Creek and Blanchard Brook, were classified, by default, as Class C. In 1990, there was a statewide overhaul of Maine's classifications to reflect legislated changes to Maine's water quality standards in 1986. The changes were so wide reaching that six public hearings were held across the state
. Among other reclassifications, Maine changed the default classification for minor drainages in Cumb erland County from Class C to Class B. Exceptions to the Class B default classifications were specifically identified , and Long Creek's upper and lower reaches in South Portland, along with all other minor drainages in South Portland, were classified as Class C. No exceptions were made for the Westbrook section of Long Creek and Blanchard Brook, so those waters were classified as Class B. The 2009 reclassification was prompted by a proposal by the City of Westbrook. In support of the proposal before the Board of Environmental Protection, DEP staff stated the v iew that the classification was inadvertently changed due to a "Legislative bill drafting error." 12 In response to comments by CLF, DEP similarly s tated that the classification of the segment from Class C to Class B in 1990 was a "mi s- labeling" mistake, and that it is reasonable to "assume" that the intent was to maintain all of Long Creek as Class C, since it would not make sense to have multiple classes apply to different segments of the same st ream. 13 In its "Supplemental Basis" document, DEP s tated that an upgrade of thi s segment would have been " nonsen sical" since management actions could not result in that segment attaining Class B where adjacent segments remained at Class C. 14 DEP additionally noted that since the water body was li sted in 1990 on Maine's 

### § 303( d) 1 ist of impaired waters for failing to meet Class C standards, and that the

12 Letter from Maine's Board of Env ironmental Protection to the Maine Legislature's Joint Standing Committee on Natura l Resources, February 17 , 2009. 13 DEP, Reclassification Proposal and Response to Comments, December 18, 2008 

# (as amended Janu ary 9, 2009). 14 DEP, Supplemental Basis: Long Creek Reclassification Proposal, submitted to E PA via email, February 2, 2010.

9Westbook segment was not meeting Class B biocr iteria or Class C dissolved oxygen criteria, it could not have been intended for an upgrade to Class B. 15 EPA is concerned about basing a reclassification approval decision on speculations about the intentions behind a classification action that occurred nearly 20 years previously. One could equally speculate, as CLF did, that perhaps there was a deliberate decision to assign higher classification goals to waters or segment of waters in towns or areas that were not as heavily deve loped. 16 Further, Long Creek's impairment status, and the Westbrook segment's nonattainment of Class B biocriteria or Class C dissolved oxygen criteria, are not necessarily indicative of what the Westbrook segment's use goals were intended to be. Meeting the water quality criteria for higher standards is not a prerequisite for a classification upgrade. As noted in materials provided at the July II, I989 public hearing in Portland , "The important feature o f the classification system is that it does not necessarily describe the present state ofthe water, but rather that it establishes the goal toward which future management is d irected. " 17 Finally, this situation is unlike other examples of clear factual mistakes offered by DEP, such as where the same water body was assigned two classifications on the very same segment, or a saltwater was mischarac terized as a fresh water, or where the mistake could be corrected without causing a removal of a use or the application of less stringent criteria. T herefore , we see no basis to conclude that the use attainability requirements of40 C.F.R. 

### § 131.1 O(g) do not apply. As noted above, because Maine did not provide a use attainability analysis consistent with 40 C.F.R. 

### § 13I.1 O(g) and demonstrate that Class B designated uses, particularly aquatic life uses, are unattainable, EPA must disapprove the reclass ification. To remedy this disapproval, EPA recommends that DEP either revise the classifica tion of Long Creek in Westbrook back to Class B or provide EPA with a use attainability analysis, based on at least one of the factors listed in 40 C.F .R. I31.1 O(g), to justify the downgrade. EPA looks forward to continued cooperation with Maine in the development, review, and approval of water quality standards pursuant to our responsibilities under the Clean Water Act. As stated in the February 2, 2015 letter, EPA would like to begin discussions with DEP as soon as possible about the criteria that EPA has disapproved. EPA will again attempt to work with DEP to schedule such discussions. In the meantime, please contact me (at spalding.curt@epa.gov or 617-918-1 012) or Ken Moraff (at moraff.ken@epa.gov or 617-918- 1502), or have your staff contact Ellen Weitzler (at weitzler.ellen@epa.gov or 617-918-1582), if you have any qu estions.

# !'{~**ding** Regional Administrator

15 ld. 16 February 12, 20 I0 letter from Conservation Law Foundation to EPA regarding the proposed Long Creek reclassification. 1 7 DEP, Reclassification of Maine's Surface Waters A Guide for the Public Hearings (Southe rn Coastal Basin), July I, 1989. 10