eOPPo

§2111Pa

11PACAO

February 

### 20 1985UNITED STATES ENVIRONMENTAL PROTECTION 

### AGENCY
REGION I JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

Henry

# E Warren Commissioner Department of 

### Environmental Protection State 

### House Station 417 

### Augusta ME 04333
Dear 

### Commissioner

### Warren

I have 

### reviewed the 

### water quality 

### standards materials submitted by the Maine 

### Department of 

### Environmental Protection in accordance 

### with Section 

## 303c of the 

### Clean Water

## Act This package 

### outlines the water 

### quality sampling and 

### public participation procedures and results that 

### were the basis for the 

### classification 

### review After extensive 

### review the Board of 

### Environmental Protection decided 

### that no 

### classification changes be 

### proposed to the 

### Maine Legislature at this

### time
Pursuant to 

### Section

# 303c of the 

### Clean Water Act Amendments of 1981 

# P47117 I approve the 

### Maine Water Qua1ity Standards
The 

### Environmental Protection 

### Agency in its 

### review of yourstandards 

### package both in the 

### Regional Office and at 

### Headquarters has noted areas that 

### should be 

### addressed in the 

### major revisions planned for 

### 1985 Modification in these areas 

### will strengthen yourwater quality

## man agement 

### programs and 

### bring yourWater Quality 

### Standards into full 

### conformance with federal 

### regulations I have 

### attached detailed staff 

### comments for your 

### consideration
and 

### mystaff stand ready to 

### assist you in the 

### development of your 

### water quality standards revision to be 

### submitted to the Maine 

### Legislature this 

### year I look 

### forward to 

### continued cooperation with you 

### and your staff to 

### achieve the water 

### quality objectives 

### expressed in the 

### Maine Water Quality Standards Sincerely

### yours 

# 6LAJLANAi adnz

Michael

# R Deland Regional Administrator


## cc Jennie

### Bridge NEIPCC 

### Patrickjobin 

# Dir Criteria Standards 

## Div 

# WH585 Frank 

### Ciavattieri 

### WMF2111
Attachmentrye 

### Comments on Maine 

### Water Quality Standards 

### Attached to February

### 20 1985 letter from
Michael 

# R Deland to Henry

# E Varren


## 1 The 

### antidegradation 

### section

# 3b should be 

### modified to be 

### consistent with 

### EPA regulation 40 CFR

## 13112 November

# 8 1983 The 

### following areas need 

### attention 

# a Your 

### policy protects designated 

### uses In 

### addition any 

### existing uses 

### must also be 

### protected 

# b It is 

### unclear as to

### why a 

### water that has water 

### quality greater than 

### specified for its class will have that water 

### quality protected only if the 

### designated uses of the next 

### highest classification can be 

### attained High 

### waterquality must be 

### maintained in any 

### event There are degrees of 

### water quality within a 

### classification Those higher levels 

### water quality should be 

### protected even if they are by some 

### measures insufficient to 

### meet the next 

### highest classification 

# c The 

### intergovernmental and 

### public participation processes should be 

### spelled 

## out This is 

### critical in 

### order to 

### deter pine when the 

### economic or

### social purposes which provide significant public benefits for the People of the State of 

### Maine are

### justified by 

### allowing lowered 

### water 

### quality 

# d Maine mustexplain how cost 

### effective and reasonable best 

### management practices fornonpointsource control 

### will be 

### assured where lower water quality is 

### allowed 

# 2 In 

### section

# 3d Discharge 

## prohibited after the word

# new or increased should be 

### added 

# 3 

# B1 B2 and 

### other classifications that have been 

### eliminated should have their 

### references deleted in the 

### associated 

## regu lations 

# 4 We 

### suggest that instead of 

### allowing a blanket 

### waiver to the 

### bacterial criteria between October 1 and May 14 

### each year that 

### permittees be 

### required to apply 

### for a

### waiver The 

### permittees should 

### explain why suspension of 

### disinfection will not adversely affect 

### water quality and 

### uses 

# 5 As 

### discussed with 

## you the 

### words 

## of human 

### origin in the 

## bac terial 

### section should be 

### deleted It can be 

### replaced with a phrase at the end of the 

### sentence 

### unless determined to be of non

## human origin by 

### sanitary

## survey

# 1i
Ii 

# I

1

ZA1 

# 2 6 The toxicity 

### statement in 

### paragraph 3 on page 4 should be expanded 

### preferably in 

### accompanying regulations to explain how determinations of 

### aquatic protection will be documented or

### predicted 

### Further the connection 

### between the toxicity policy in the 

### Standards and the issuance of 

### discharge 

## per mits should be 

### clearly

### outlined This will include 

### infor mation on 

### biomonitoring effluent toxicity 

### testing choice of river flow 

### duration and recurrence intervals for acute and chronic 

### protection 

## etc 

# 7 Consideration 

### should be 

### given to having a Class C cold water fishery 

### designation with a 

### dissolved oxygen of

## 60 instead of

## 50

# mgL This is 

### supported in a 

### paper

## The Dissolved Oxygen 

### Requirements of 

## Fish prepared by the Maine DEP in April 

### 1984 

# 8 There is an 

### apparent inconsistency in the SB 

### criteria and uses designated for this 

### class namely

### shellfishing A

### desig nation of SB implies 

### that shellfishing and its stringent 

## micro biological 

### requirements are 

### protected 

### However during the period between 

### October 1 

### and May 14 each 

### year coliformcriteria are waived 

### meaning that water quality which 

### protectsshellfish harvesting may not be 

### maintained Shellfishing nevertheless continues 

### during this 

### period This 

### discrepancy should be 

### eliminated 

# 9 The chromium 

### criterion in the 

### regulations should be 

### recon sidered It is 

### different from the EPA 

### White Book value which both EPA and 

### DEP have been 

### using most recently in the Saco River and 

### Goosefare 

### Brook 

## 10 The variance 

### language in 

### Chapter 590 

### should be expanded to include social and 

### economic 

### factors intergovernmental cooperation and 

### public participation 

## 11 Amixing zone 

### policy considering the factors in the EPA 

### Water Quality 

### Standards 

### Pandbook Chapter 2 should be 

### developedI



### iii 

# ii

u ss

### Ankij UNITED STATES

### ENVIRONMENTAL PROTECTION AGENCY

44tectono REGION

I J FKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203



### November 

## 12 1985 Henry 

# E Warren Commissioner Department of 

### Environmental Protection State 

### House Station 17 

### Augusta ME 0433 Dear Commis 

### bner

### Warren
Members bf our 

### staffs met in 

### your offices on October

# 9 1985 to discuss the 

### legislative document amending the water 

### classification system prepared for the 1986 

### session of the 

### Maine Legislature This 

### meeting was set up to 

### discuss points originally raised by the 

## Envi ronmental Protection Agency 

# EPA in response to earlier drafts of 

### Legislative Document 

## No 1503
Three major issues were 

### deliberated 

# 1 antidegradation 

### policy 

# 2 bacterial criteria for SB 

### water for 

### shellfish harvesting and

# 3 the 

### absolute prohibition of 

### discharges new and 

### existing to streams 

### with less than ten square 

### miles of 

### drainage 

### area EPAs position and my 

### understanding of future 

### actions are detailed 

### below 

# 1 Antidsgradation 

### Maines current proposal is 

### contrary to 

### EPA policy in 

### that 

# a existing uses are not 

### specifically protected 

## EPAs anti degradation policy mandates that existing uses be 

### preserved in all 

### cases Maine protects characteristics and 

### designated 

### uses without specifically providing maintenance of actual 

### existing 

### uses In 

### order to be 

### consistent with federal 

### regulations your proposal must provide for the 

### protection of 

### existing 

### uses and 

# b water quality currently exceeding that necessary for the 

### propagation of 

### fish shellfish arid 

### wildlife need 

### not be

## main tained Maines proposal protects only the 

### minimum 

### require ments of a class unless 

### the quality exceeds that 

### specified for the next 

### highest 

### class 

## EPAs policy protects all 

### incremental improvements in 

### water quality subject to the 

### standard waiver provisions For

### example a 

### class C

### waterway with a 

### dissolved oxygen criterion of 5

## mgL and an existing

# DO of

## 65mgL is not 

### protected at this 

### higher level by 

### Maines policy This is 

### because the

## 65mgL is 

### less than the 

### criterion of 7

## mgL in the next 

### highest 

### class 

# B Similarly a 

### class B 

### water with a 

### higher than 

### minimum

# DO may never be 

### guaranteed preservation since the next 

### highest 

### class

# A has an identical

# DO criterion of 7

# mgL

# Ii

Iii

I



# ii

11 

# 2

Based on the 

### discussions held by our staffs including EPA

## head quarters we 

### understand that the 

### Department of 

### Environmental 

## Pro tection 

## DEP and the 

### Office of 

### Legislative Assistants will revise the Maine 

### antidegradation policy to bring it into 

### conformance with approved water 

### quality standards in other 

### states One 

### important aspect in implementing 

### the antidegradation policy is the 

### procedure by which the 

### benefits and costs of 

### maintaining high 

### quality water are evaluated and 

### tradeoffs made regarding important 

### economic or social 

### development This 

### procedure must involve 

### intergovernmental 

### coordi nation at the State level as

### well as public 

### participation These 

### procedures currently not 

### elucidated by 

### Maine need not be 

### incorpo rated into the statute but can be 

### developed and 

### spelled out in the 

### Continuing Planning 

### Process 

# 2 Bacterial 

### criteria Maine dropped bacterial 

### criteria from the SB 

### classification waters 

### protected for the 

### propagation and harvesting of 

### shellfish EPA 

### defines a

### water quality standard as listing of

## des ignated uses and 

### criteria to 

### protect those 

### uses EPA has bacterial 

### criteria in the 

## Red Book that are 

### protective of 

### shellfish

### waters These criteria or other 

### state supported criteria should be specified for those 

### water bodies 

### that contain a

### designated or 

### existing use for 

### shellfish harvesting

I understand 

### that DEP is 

### considering bacterial 

### criteria for SB

### waters and will continue 

### discussing the 

### matter with EPA and the 

### Maine 

### Divi sion of Marine 

### Fisheries 

# 3 Discharge 

### prohibition Lines 1 

### through

# 5 page 3 of

# LD 1503 state that there shall be no 

### discharge to waters with less than 10 

### square miles

### drainage 

### area This language would require the removal of all current 

### discharges to 

### such waters ranging from large industrial dischargers to single 

### homes As 

### discussed during the 

### meeting this

### may not be 

### realistic Your 

### staff is 

### reconsidering this point and will 

### make a 

### recommendation 

### soon
In closing I 

### commend

## you your

### staff and the Office of 

### Legislative Assistants for the 

### tremendous effort put into 

### clarifying and 

### strength ening 

### Maines water quality 

### standards particularly with regard to great 

### ponds I share 

### your desire for

### early legislative action on the 

### proposal Please let 

### me know if we can 

### assist in any 

### way with the 

### revising and 

### updating of 

### your standards and 

### classifications 

## 1 Sincerely

### yours

Paul Keough Deputy Regional 

### dministrator



## cc David 

### Elliott Office of 

### Legislative Assistants David

# K Sabock Criteria and 

### Standards 

### WB585 Jennie 

### Bridge NEIWPCC 1

J

# H I



### Kenneth 

# C Young Commissioner Department of 

### Environmental Protection State 

### House Station 417 

## r Augusta Maine 04333 UNITED STATES 

### ENVIRONMENTAL

## PROTEr REGION

I JFKENNEDY FEDERAL BUILDING BOSTON MASSA 

### July

## 16 1986



### Dear Commissioner

### Young
We have reviewed the revisions to the 

### Maine water quality standards 

## stat ute contained in An Act to 

### Amend the 

### Classification System for Maine 

### Waters and Change the 

### Classification System of 

### Certain

### Waters Maine 

### Public 

### Laws 112th 

### Legislature Chapter 698 

## the Reclassification 

# Act

We would like to 

### applaud your 

### efforts as 

### well as those of 

### your staff and the legislature on this 

### important bill 

### which in many ways 

### strengthens the 

### protection afforded to 

### Maines waterways
We 

### formally approve 

### major portions of the 

### statute but there are several sections of the bill listed 

### below which do not 

### appear to be in conformance with federal 

### requirements The 

### state must specify within 30 days how it intends to 

### meet the concerns 

### listed below or the 

### Environmental Protection Agency 

# EPA will 

### disapprove those 

### sections 

# 1 Section

# 4644F Antidegradation 

### Maines Antidegradation 

### Policy as set forth in 

### Section

# 4644F of the 

### Reclassification 

## Act must be 

### consistent with 40

# CFR S13112

# a1 

# 4 Forty

# CFRS13112a1 provides that 

### existing instream uses and the level of

### water quality necessary to 

### protect the 

### existing uses shall be 

### maintained and 

### protected ° 

### Forty

# CFR S13112

# a2 goes a step further and 

### provides that if the 

### level of the 

### water quality exceeds that which is 

### necessary to

### protect the 

### Section

# 101a2 fishableswim mable goals of the Clean 

### Water 

## Act then the 

### water quality cannot be lowered below the level 

### necessary to 

### support the existing use

# ie °fishableswimmable or

### higher 

## and in 

### addition can only be lowered to 

### that level if the state 

### finds after intergovernmental coordination and 

### public participation that such 

### action is 

### necessary for 

### important economic or social 

### development Section

# 4644F5 appears to be 

### more stringent than 40

# CFR S13112 

# a12in one respect since it 

### provides that the 

### existing quality of any 

### water 

### body not just

### fishableswimmiable waters can be lowered only 

### after the board makes a

### finding 

# following opportunity for

### public participation that the 

### action is 

### necessary to 

### achieve important economic
or social 

# benefits Section

# 4644F5 however does not provide1 

# 2

that in 

### allowing lower water quality in such 

### circumstances the state must 

### assurewater quality to fully 

### protect existing 

### uses Section

# 4644F1 does 

### affirmatively state that the 

### existing uses must be 

### protected 

## How ever this is a 

### general provision and 

### Section

# 4644F5 can be 

### inter preted as an 

### exception to the 

### general rule in 

### Section

# 4644F1 Section

# 4644F5 therefore needs to be 

### clarified We recommend that this be 

### accomplished either in the 

### rules promulgated pursuant to Section 

# 4645 or by 

### statutory 

### amendment Section

# 4644F5 is 

### missing a 

### requirement for °intergovernmental 

### coordination In 

### addition the 

### provision does not provide that Maine 

### will 

# assure that there shall be 

### achieved the 

### highest statutory and 

### regulatory requirements for all 

### new and existing point sources and all 

### cost effective and 

### reasonable best 

### management practices for non point 

### source control 

# See 40

# CFRS13112a2 The state should adopt 

### this language into a 

### statutory revision or during the rulemaking pursuant to 

### Section

# 4645 2 Section

# 4644F1 Definition of 

### Existing 

## Use
In 

### accordance with 40

# CFRS13112a1 Section

# 4644F1 of the 

### Reclassification Act provides that 

### existing uses 

### must be 

### maintained and 

### protected This 

### section however defines existing instream 

### uses as 

### significant well

### established uses that have actually 

### occurred on a 

### waterbody on or after 

### November 

## 28 1975 emphasis

## added This language is 

### narrower and 

### therefore less 

### stringent than the federal 

### definition in 40

# CFR S1313e which defines 

### existing uses as 

### uses actually 

### attained in the 

### waterbody on or

### after November 

## 28 1975 

### whether or not 

### they are 

### included in 

### the water quality 

### standards The EPA policy on 

### antidegradation provides that existing uses can be 

### established not 

### only by

### demonstrating that the uses 

### have occurred but also by

### showing that 

# the water quality is 

### suitable to 

### allow such uses to 

### occur unless there are 

### physical problems which prevent the use 

### regardless of water 

## quality emphasis 

# added2 Under 

### Maines definition 

### however the use is 

### existing if it is °well

### established and if it has 

### actually occurred The 

### addition of this 

### language appears to 

### preclude the state fro

### s finding
a 

### use exists because the 

### water quality of the reach le Suitable to allow such a use to

### occur rherefore EPA requests that the 

### Maine Department of Environmental 

### Pro tection 

# DEP clarify how it 

### specifically intends to 

### implement the 

### anti degradation policy 

### outlined in the 

### legislation In 

### particular EPA 

### requests 

## DEPs interpretation of the 

### definition of 

### existing uses contained in the 

### legislation and the 

### methods by which DEP will 

### establish existing 

## uses

177 

## See 11Questions 

### and Answers 

## on Antidegradationr7 

### August 1985 Office of

### water Regulations and 

### Standards

# 3

111 

### Sections

# 46524 Protection of 

### Salmonid Spawning
The standards 

### provide for 

### narrative salmonid spawning protection for Class B and Class C 

### waters Criterial protection for 

### salmonid spawning with regard to 

### dissolved oxygen is 

### afforded only to Class B 

### waters
Maine should afford at least as 

### high a 

### degree of 

### salmonid spawning 

## pro tection to 

### Class A waters as 

### Class B 

### waters In 

### addition rulemaking 

### specified in 

### Section

# 4654B should identify salmonid spawning areas in Class C waters and the level of 

### water quality sufficient to support 

### spawning egg 

### incubation and the 

### survival of early life 

### stages 

# 4 Sections

# 4671A2 and

# 4677A3 Androscoggin and Penobscot River 

### Impoundments
These sections 

### do not 

### provide forthe full 

### protection of Class Cstandards and 

### criteria within the 

### stated impoundments only the reasonable 

### attain ment of 

### Class C

### uses while allowing the 

### violation of 

### Class C criteria at certain 

### times By 

### allowing the 

## reasonable attainment of the uses these two 

### provisions are 

### inconsistent with federal 

### regulations The language In 40

# CFR S1316c as 

### well as the 

### federal regulation as a 

### whole make it 

### clear that these uses 

### must be 

### fully protected not 

### reasonably protected Furthermore in 

### Section 464 

### of the 

### Reclassification Act the legislature stated that its 

### intention was 

## that This 

### classification system shall be based on 

### water quality standards which designate the uses and related 

### characteristics of those uses for 

### each class of 

### water and which also 

### establish water quality criteria necessary to 

### protect those uses and related 

### characteristics 

## Thus the 

### classification system for the 

### impound xients in 

### question does not 

### follow the intent of the legislature or the structure which has been 

### established to 

### protect all 

### other waterbodies in the state since it 

### does not 

### require criteria which fully protect the instream 

### uses
rhe statement by the 

### legislature in these sections that criteria 

### viola tions may 

### occasionally Occur and 

### that Class C uses say be reasonably httained does not 

### constitute a 

### revision of the 

### classification for these 

### segments If the intent of 

### the legislature was to 

### remove designated uses 

### which are not existing 

### uses or to 

### adopt subcategories of uses pursuant to 40

# CFR513110g the 

### State must first 

### conduct a use 

### attainability analysis

# UAA in 

### accordance with 40

# CFR S13110j2 A UAA is lefined in 40

# CFR51313g as

# a structured scientific assessment of

_ the factors affecting the 

### physical chemical biological and economic actors described in 40

# CFR513110g The 

### study should focus on the current 

### condition of the 

### impoundments in 

### question and the factors relating to their 

### attainment or nonattainment of 

### Class C 

### standards The study should also 

### outline what the 

### attainable uses of the impoundments 

### are specify how those 

### attainable uses will be 

### achieved and select 

### zriteria protective of the 

### those 

## uses

# 4

SiIf the UAA 

### concludes that the 

### impoundments will not fully attain Class C



### uses and 

### criteria due to one or 

### more of the factors listed in 40

# CFR 513110g the state may 

### then reclassify 

## in accordance with the 

### provi sions of 40

# CFR S13110 the 

### designated Class C 

### uses or create 

## sub categories of Class C uses for these 

### reaches and 

### specify criteria 

## pro tective of these 

### uses
EPA 

### requests clarification of how 

### Maine intends to bring this section of the 

### standards into full 

### compliance with the federal 

### requirements listed 

### above Forty

# CFR S1312 states that 

### water quality standards

# mserve as the 

### regulatory basis for the 

### establishment of 

### water quality

### based treatment 

### controls and 

### strategies beyond the 

### technology

### based levels of treatment 

### required by 

### sections 

## 301b and 306 of 

### the

# Act Since a standard of 

### reasonable attainment is vague and 

### there is no way to determine what level of 

### water quality the 

### state would equate with 

### reasonable 

### attain Dent it 

### would be 

### difficult if not 

### impossible to 

### establishwater

### quality based 

### treatment 

### controls ince the 

### impoundments have not been 

### formally downgraded by the 

### legis 

## ature Region I will 

### continue to 

### interpret the 

### classification of the 

### eaches in 

### question as Class

# C NPDES permits issued by EPA for these 

### egments will 

### contain water 

### quality based limitations sufficient to 

### upport Class C 

### uses and 

### criteria

# ie 5

## mg1 minimum dissolved oxygen 

### oncentration fully until such time 

### the standards for these streams are 

### owngraded in accordance 

### with federal 

### requirements iscellaneous comments on the 

### Maine water quality standards are listed 

## elow
Dation 

## 465C Groundwater Classification


## us section sets standards of 

### classification for 

### groundwater 

### Ground

ter is not addressed in 

### Section 303 of the 

## CWA Therefore EPA does 

## A possess the 

### authority to 

### approve or 

### disapprove this 

### section
ironic 

### Criteria For 

### Dissolved Oxygen
A 

### has recently published 

### June 

## 24 1986 federal 

### register dissolved 

### ygen criteria which include 

### suggested average and 

### minimum criteria ther than just the 

### minimum values 

### used in 

### Maines current 

### standards 

## me should 

### examine this 

### document when updating its standards 

### again

# 5
ydroelectric Projects Act 

### EPA has recently 

### received a second 

### piece of 

### legislation 

## An Act to 

### Clarify the 

### Application of 

### Water Quality Standards to 

### Hydroelectric 

## Projects Maine Public 

### Laws 112th Legislature Chapter 

### 772 Since this 

### legislation dictates how water quality standards are to be 

### applied EPA approval of this Act 

### under 40

# CFR Part 131 is also 

### required Initial 

### review of the Act 

### has revealed that it is 

### inconsistent with federal 

### requirements EPA needs additional time to review this legislation and 

### will contact the 

### state as 

### soon as it 

### completes its 

### evaluation

I look forward to 

### working with you in the 

### resolution of the 

### aforemen tioned 

### issues If 

### you have 

### any 

### questions please feel free to 

### contact Don Porteous 

# 6172235043 or Larry 

### Brill 

## 6172235600 of the 

### Water Management Division for

### assistance Sincerely 

## 91c7oy Michael 

# R D41and 

### Regional Administrator 

## cc Jennie 

### Bridge NEIPCC David

# K Sabock Criteria and 

### Standards 

### Division 

# WH585y00S70 ORTA 411Ifa

414

## PRO r

UNITED STATE$

### ENVIRONMENTAL PROTECTION 

### AGENOY REGION JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022a3


### August

## 20 1986 

### Kenneth 

# C Young Commissioner Maine Department of 

### Environmental Protection State House 

### Station 

## 17 Augusta Maine 

### 04333 Dear Commissioner

### Young As I 

### mentioned in 

### myletter of 

### July

## 16 1986 the 

### Environmental Protection Agency 

# EPA recently received a 

### copy of 

### An Act to 

### Clarifythe 

### Application of

### Water Quality Standards to 

### Hydroelectric 

### Projects Hydroelectric Projects

# Act Maine Public 

### Laws 112th 

### Legislature Chapter 

## 772

# LD 2107 EPA approval of this Act is 

### required under 40

# CFR Part 131 

### because this legislation concerns the 

### reclassification of 

### water quality standards
Our 

### review of the Act 

### reveals that Sections 

### 363C and 

## 6341 are not in 

### conformance with federal requirements The State 

### must specify how it intends to 

### meet the 

### concerns listed below 

### within 30 days of 

### receipt of this 

### letter or 

### EPA will 

### disapprove the 

## non conforming portions of the

## Act 

# I Section 

## 363C Classification

## forCertain Hydroelectric Impoundments Section 

### 363C of the 

### Hydroelectric Projects Act provides 

### that
For the 

### purposes of

### water quality classification the 

### waters of a 

### new or 

### proposed hydroelectric impoundment shall be 

### deemed to be Class GP

# A if 

### the commissioner finds 

### that it is 

### reasonably likely that the 

### impoundment 

### would 

# 1thermallystratify 

# 2exceed 30 

### acres in 

### surface 

### area and

# 3

fnlot have any 

### upstream direct discharges except for 

### cooling 

### water
To

# deem a

### waterbody a 

### different classification than its 

### present classification 

## is in 

### effect a 

### reclassification of that 

### waterbody Although a state 

### may redefine its 

### classification system under the 

### federal water 

### quality 

### regulations it is subject to the constraints listed in 40

# CFR Part 

## 131 Our 

### review indicates that Section 

## 363C does not meet the 

### requirements of 40

# CFR Part 131 for the 

### following 

### reasons

V1

### Letter to 

### CommissionerYoung 

### August 

## 20 1986 

### Page 2 

# A Section 

# 13110e specifically states that 

### npjrior to adding or 

### removing any

# usethe State 

### shall provide notice and an 

### opportunity for a 

### public 

## hearingunder 40

# CFR g

# 13120b Section 

### 363C does not meet the 

### requirements of 

### Section 

# 13110e because it does not 

### provide for 

### such public 

### participation even though a change from

### ClassAA to Class GP

# A under this section 

### would involve 

### both the 

### removal and 

### addition of

### uses 

# B Since a change in 

### classification from Class

### AA to ClassGP

# A under Section 

## 363C would remove the free

### flowing characteris tic uses of the 

### stream without adding 

### criteria or 

### uses which are

### more protective of the 

### stream this section is also in 

### conflict with 

### Section 

# 13110h Section 

# 13110h specifically provides that a state 

### may not 

### remove an existing use unless a use requiring 

### more stringent criteria is 

### added iContrary to

# 40CFR 13120c the Commissioner can revise 

### water quality standards byreclassifying certain 

### water bodies under 

### Section 

## 363C without the approval of

## EPA Section 

# 13120c specifically requires the 

### EPA Regional 

### Administrators approval of 

### revisions to

### water quality standards it should be 

### noted that until the 

### revisions are ormallyapproved by 

### EPA Sect12nAD ions

### cannotbe grinntedbLy fhe StatA

# to hOroelectric 

### projects 

# D The three 

### findings that the 

### Commissioner mustmake in order to 

### deem the 

### waters of 

### newor proposed hydroelectric impoundment 

### Class GP

# Aseem to be 

### inconsistent with the 

### designated uses and 

### criteria protective of Class

### GP

# Awaters in 

### Section 

### 465A of

## An Act to 

### Amend the Classification System for

### Maines Waters 

### and Change the 

### Classification Systemof Certain

### Waters 

# Re classification

# Act Section 

## 363C provides that any

### waterbody may be deemed Class 

### GP

# A if there are no 

### upstream discharges except cooling 

### waterwhile that 

### classification is 

### characterized in the 

### Reclassification Act as 

### having no 

### new discharges upstream EPA requests that the State 

### clarify the apparent 

### discrepancy between the 

### prohibition of 

### certain discharges to Class GP

# A waters in the two

### provisions 

## II Section 

### 634 Subsection 

# 1 Coordinated Permit 

### Review Section 

## 6341 of the 

### Hydroelectric Projects Act 

### requires the 

### Department of 

### Environmental Protection 

# DEP to issue ordeny 

### Section 401 

### water quality certification within five days of the 

### applicants 

### request Failure to act on the 

### certification 

## re quest results in the 

### waiver of the 

### States certification 

### deter mination This time 

### period is 

### unreasonably short and therefore in 

### conflict with Section

# 401a1 of the Clean 

### Water Act which 

### provides that the 

### certification authority of the 

### State will 

### only

### La

1 

### Letter to 

### Commissioner Young 

### August 

## 20 1986 Page 3

be 

### waived if the State fails 

### or refuses to act 

### within

# a reason able period of 

### time not to 

### exceed one

## year Further such waivers are to be 

### made in 

### writing as specified at 40

# CFR 12116 and 

### cannot be

### made by

### default
Please feel 

### free to call the 

### members of

### my staff to discuss these 

### issues Questions regarding this matter should be referred to David 

### Lederer at

## 6175653539

Sincerely 

### ifects Michael 

# R Deland Regional 

### Administrator


## cc Jennie

### Bridge NEIPCC David

# K Sabock Criteria and Standards 

### Branch EPA11

71 A 

## IP744 Al4 tkirri7 

# 1140

4iMVO t
UNITED STATES ENVIRONMENTAL PROTECTION 

### AGENCY REGION I JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

April

## 24 1987

Robert

# A Moore Legal Counsel to the

Governor ofMaine State of Maine

Office of the 

### Governor Augusta Maine 

### 04333


## Re Maine Water 

### Quality Standards
Dear

## Mr Moore 

## 0

s 

### r=

Thank you foryour 

### March 

## 24 1987 

### letter regarding 

### EPAs 

## con cerns relating to

# LD 391 and other recently passed 

### water quality legislation in 

### Maine In 

### your letter you requested a list of

# 1 the 

### changes in Maine law which reflect the recent trend in the State 

### toward the 

### relaxation of water quality 

### stan dards to allow 

### specific projects to be Certified Outside normal State 

### procedures and

# 2 the identity of such specific 

### projects The 

### changes to 

### Maines standards which reflect this trend are set forth in detail in our 

### earlier letters of July 16 and August 

## 20 1986 

### copies

## of which are 

### attached and our recent letter of march

# 6 1987 Set forth below is a summary of several points in these 

### letters which 

### relate to your 

### questions 

# 1 38

# MRSA SS

# 4671A2 and

# 4677A3 provide for the 

### reasonable attainment of Class C standards in certain impoundments on the 

### Androscoggin and Penobscot Rivers which are downstream of the 

### Boise 

### Cascade International 

### Paper and Great Northern paper

### mills Inasmuch as the legislature intended to provide for the 

### establishment of water quality

### based permit limits which would be less 

### stringent than those required for full attainment of 

### Class C uses and 

### criteria these sections are inconsistent with the 

### water quality standards 

# see July 

## 16 1986 

## letter 

# 2 38

# MRSA S

## 363C automatically reclassifies without the public 

### participation or EPA 

### approval required by federal 

### law any proposed 

### hydroelectric impoundment that has certain characteristics to a 

### Class GP

# Awhich has no dissolved oxygen 

### criterion This 

### legislation was 

### enacted after the Board of Environmental 

### Protections decision to deny 

### certification for the construction of a dam by 

### Great Northern on the West Branch of the Penobscot 

### River The 

### decision was based 

### partially on the fact that the 

### resulting impoundmentwould be unable to meet the dissolved oxygen 

### criterion for the existing 

### classification 

# see August

## 20 1986 

## letter

JLetter to moore 

# AP11 

### 24 1987 

### Page 2 

# 3 Section 6 of

# LD 391 

### attempted to alter the 

### tempersture criterion for the Class C waters behind the 

### Hacketts Mill 

### dam in order to relax the 

### discharge requirements to be applied to the Palls Tissue plant in 

### Mechanics Falls

# see NtirCh

# 6 19117 

## letter It is our 

### understanding that section 6 has been deleted from the 

### bill EPA recognizes that no specific 

### project has yet been certified under any of the above

### referenced statutes however we are concerned over the trend in Maine toward the passage of such legislation and are 

### pleased to see that the 

### Governors office is interested in taking an active role in investigating this 

### matter If we can be of any further assistance in your efforts please feel free to 

### contact either David

# 0 Lederer of the 

### Water Management Division or Tonia

# D Bandrowicz of the Office of Regional Counsel at

# 617 5653539 or

# 617 5653450 respec tive

Patrick

# A Parenteau Regional 

### Counsel Region I
Enclosures

tmclikr mAtriott121 411 DS7or 

## el

44 Preoltc

May 

### 21 1987 urrciVF nr cwviln1181 CtION UNITED STATES ENVIRONMENTAL 

### PROTECTIONLAGTSY 

## Aa28 

### AB MA REGION

I JFKENNEDY FEDERALBUILDING BOSTON MASSACHUSETth iiesliSc12511 VE

Dean 

### Marriott Commissioner Maine Department of 

### Environmental Protection State 

### House Station 

## No 17 

### Augusta ME 04333 

## Re

# LD 2283 and 2107
Dear Commissioner

### Marriott 

# gft j

As you 

### know by letters 

### dated July 16 and August 

## 20 1986 I informed the State of

### Maine Department of 

### Environmental 

### Protec tion

# DEP of the 

### results of the Environmental 

### Protection 

### Agencys

# EPA initial 

### review of

## An Act to Amend the 

### Class ification System for 

### Maine Waters and Change the 

### Classification System of 

### Certain

### Waters 

## the Reclassification 

# ActLD 2283 and 

## An Act to 

### Clarify the 

### Application of

### Water Ouality Standards to 

### Hydroelectric 

### Projects 

## the Hydroelectric Project 

# ActLD 2107 respectively
While approving major

### portions of 

### both statutes we 

### commented on several provisions which did not 

### appear to be in 

### conformance with the federal 

### water quality 

### regulations 40

# CFR Part 

## 131 promul gated pursuant to 

### Section 303 of the 

### Clean Water

## Act The 

### provi sions in 

### question were 38

# MRSA §

# 4644F1 and

# 5 465 

# 4671A2 and

# 7A3 in 

### Section 15 of the 

### Reclassification 

## Act and 38

# MRSA gi§ 

## 363C and 634 in Sections 1 and

# 2 respec tively of the 

### Hydroelectric Projects

## Act In our letter we requested further 

### clarification of these provisions and an 

### explan ation of how the State 

### intended to meet our 

### concerns By letters dated 

### September 5 and 

### November

# 4 1986 former 

### Cbmmis sioner Kenneth Young 

### responded to 

## EPAs comments Subsequently on 

### January 

## 21 1987 representatives of 

### EPA met with 

### members of the DEP to further 

### discuss the issues raised by the 

### provisions in 

### question In light of our 

### discussions with the 

### State several issues regarding 

### Sections

# 4644F5 465 and 634 have been 

### resolved provided that 

### EPA receives written assurance that the State will be taking the 

### necessary action regarding Sections 

# 4644F5 nonpoint source control requirement and 465 during the next 

### standards revision 

## see Attachment

# A

To 

### date however the 

### State has not 

### adequately reconciled the remaining 

### provisions with federal requirements or 

### committed to take the action 

### necessary to 

### change the 

### provisions to 

### conform to the federal 

### water quality 

### regulations Therefore pursuant toTj Letter to 

### Marriott May 

### 21 1987 Page 2

Section

# 303c3 of the Clean 

### Water 

## Act EPA is 

### disapproving the following 

### sections for federal 

### water quality 

### standard 

## pur poses
38

# MRSA §§

# 4644P1 definition of 

### existing

# use and 

# 38MRSA § 

### 363C reclassification of 

### proposed hydroelectric impoundments to Class GP

# A

The basis for the 

### disapproval and the changes needed to 

### assure compliance with the 

### requirements of the Act and the 

### regulations promulgated 

### thereunder are set forth in detail in 

### Attachment

# A You have the 

### opportunity to 

### revise the disapproved 

### sections to 

### conform to the 

### requirements set forth in the 

### Attachment within 90 days of your receipt of this 

### letter If such revisions are not 

### made it is 

### EPAs obligation to 

### publish proposed standards in the Federal 

### Register as a 

### preliminary step toward 

### federal promulgation
As 

### noted in

### Attachment

# A before taking formal approval or disapproval action on the 

### following provisions we are 

### requiring further 

### clarification on these 

### provisions from the Maine 

### Attorney 

### Generals Office within 30 days of 

### receipt of this 

### letter

38

# MRSA §

# 4671A2

on 

### Androscoggin 

### River

38

# MRSA §

# 4677A3

on Penobscot 

### River classification of 

### impoundments

classification of 

### impoundments

If you have any 

### questions please have your staff

### contact David 

# O Lederer of the 

### Water Management Division at

# 617 5653539 orTonia 

### DBandrowicz of the 

### Office of Regional Counsel at 

# 617 5653450 Sincerely A

Michael

# R Deland Regional 

### Administrator Region I 

## CC Steven

# W Groves Maine 

### Department of 

### Environmental Protection
Tim Glidden Office of 

### Policy and 

### Analysis
James

# E Tierney Maine 

### Attorney General
Robert

# A Moore 

## Esq Maine Office of the 

### GovernorTI

Til

711 Lettel to 

### Mariott May 

### 21 1987 Page

# 3

Ron 

### Kreisman 

### Esq Natural Resource 

### Counsel of Maine
David 

# K Sabock Office of Standards and 

### Criteria 

## LeeC Schroer 

## Esq Offiae of General 

### Counsel

### ATTACHMENT A 

# 1 Hydroelectric Projects Act 

# a Section 1 

## 38

# MRSA S

## 363C
Section 

## 363C of the Hydroelectric Projects Act 

### provides 

### that
For the purposes of water 

### quality classification 

## the waters of a new or 

### proposed hydroelectric 

## im pbundment shall be deemed to be Class GP

# A if the



### commissioner finds that it is reasonably 

### likely that the 

### impoundment 

### would 

# 1 Stratification 

### Thermally stratify 

# 2 Area Exceed 30 acres in 

### surface 

### area and

# 3 Discharge Not have 

### any upstream 

### direct 

## dis charges except for 

### cooling 

### water
As we 

### pointed out in our letter of

### August 

## 20 1986 to

## deem a water body a 

### different classification than its current 

### classi fication for

### water quality 

### purposes 

## is in 

### effect a 

### reclassi fication of that 

### waterbody

## and as

## such is subject to the 

### procedures on standards revisions 

### contained in 40

# CFR S 

## 13120 Our 

### review of 

### Section 3637C 

### reveals that it is inconsistent with the 

### procedural requirements of 

### Section 

### 13120 because it allows the State to 

### change the 

### classification of a

### waterbody without a public 

### hearing 40

# CFR 13120b and the approval of the Regional 

### Administrator 40

# CFR S

# 13120c

The DEP 

### indicated in its 

### November

# 4 1966 letter that the 

### auto matic 

### reclassification mechanism of 

### Section 

## 363C is 

### necessary in order to 

### simplify hydroelectric 

### certification proceedings 

## How ever to be in full 

### conformance with federal 

### requirements it is 

### necessary that all standards 

### revisions be conducted on a case

# by
case basis 

### following the 

### Section 

## 13120 procedures This is to ensure that 

### there is adequate 

### opportunity for public 

### participation as well as 

### EPA review in the 

### standards revision 

### process Accordingly EPA is 

### disapproving 38

# MRSA §

## 363C This 

### provision must therefore be 

### repealed or modified so as to be in 

### accordance with federal 

### requirements within 90 

### days or EPA shall 

### initiate federal promulgation action pursuant to 

### Section 

# 303c4 of the 

### Clean Water Act 

## the

# Act 33

# USC
S

# 1313c4

It is noted that in its 

### discussions with 

### EPA the DEP 

### expressed a concern that unless the 

### classification of an 

### existing river segment for 

### which an 

### impoundment is 

### proposed can he 

### changed to a 

### classification which contains 

### no dissa1ved oxygen 

### criteria

# ie
GP

# A hydroelectric projects will 

## be in 

### effect precluded in Maine because the 

### stratified impoundment which 

### results from the 

### construction of a dam will be 

### unable to 

### meet the 

### dissolved oxygen criteria under the 

### existing riverine classifications Reclassification is not 

### necessary however Rather the State 

### may conduct a site specific 

### study pursuant to 40

# CFRAttachment A May

### 21 1987 Page 2 

# 13111b1ii to 

### determine if the existing instream uses would be protected in the 

### proposed impoundment with a dissolved 

### oxygen level lower than that in the existing 

### classification 

### If based on the 

### study the State 

### determines that the 

### existing uses will be protected even though the 

### current dissolved 

### oxygen 

### criter ion would be 

### violated the 

### State may then 

### propose to 

### modify the 

### criterion for the 

### segment in 

### which the proposed impoundment will be 

### located Such a 

### change must be 

### justified by 

### acceptable 

### scien tific procedures and be in 

### accordance with 

### proper procedures for 

### standards modifications in 40

# CFR g 

## 13120 including public participation and 

### EPA

### approval Regardless Of the 

### classification of any 

### Segment any proposed hydroelectric 

### project must be 

### consistent with the federal 

### anti degradation 

### provisions at 40

# CFR 13112 and the State counterpart at 38

# MRSA §

# 4644F1 which are 

### designed to 

### ensure that 

### existing uses and the level of

### water quality necessary to protect those uses 

### are maintained and

## protected Thus it 

### must be 

### demonstrated that the 

### proposed impoundment 

## ill not lower 

### water quality 

### below the level 

### necessary to 

### protect the uses 

## cur rently existing in the 

### river

### segment 40

# CFR 13112a1
Furthermore if the 

### water quality of the river segment currently 

### exceeds levels 

### necessary to 

### support the 

### propagation of 

### fish shell fish and wildlife and 

### recreation in and 

### onthewater 

## fishable swimmable 

## waters the 

### antidegradation provisions also require a 

### demonstrationof important social and 

### economic benefits to the

## con struction of the 

### dam in 

### order to

### justify lowering the 

### water

### quality 40

# CFR 5

# 13112a2 and 38

# MRSA S

# 4644F5 b Section 2 

## 38

# MRSA g

# 6341
Section

## 6341 which concerns the 

### issuance of hydroelectric ject permits 

### provides 

### that
the 

### commissioner 

### of Environmental Protection or director 

## of Maine Land Use 

### Regulation 

### Commission shall issue or 

### deny

# a water quality certificate pursuant to 

### Section 401 of the

## Act based on the 

### Board of 

### Environmental 

### Protections or the Maine Land Use 

### Regulation 

### Commissionsfinding pursuant to 138

# MRSA Section 

## 636 subsection 

# 7 para graph G 

## as to 

### whether there is 

### reasonable 

## pro

In other

### words even if site 

### specific criteria are 

### developed or the water 

### segment was reclassified to a 

### Class GP

# A the 

### proposed project 

### must be shown to be 

### consistent with 

### antidegrada tion provisions

### Attachment A May 

### 211987 Page 3

assurance that the 

### project will not violate 

## ap plicable water 

### quality standards within 5

## work ing days of the 

## permit applicants request or the issuance of a

# permit If the 

### commissioner or director fails to act on the 

### certificate the federal certificate 

### requirement 

## ofSection 401 shall be

### waived 7 In our August 20th letter we 

### informed the DEP that 5 

### working days was an 

### unreasonably 

### shortperiod of time within which to issue or deny 

### certification and 

### therefore inconsistent with 

### Section

# 401a1 of the Act which states that the 

### certification authority of the State will only be waived if the State fails to act 

### within

# a reasonable period of

### time not to exceed one

# year2 EPA further 

### commented that 

### any waiver of 

### certification authority mutt be in 

### writing as required 

### by40

# CFR 12116 and cannot be made by 

### default

In its November 4th 

### letter the DEP stated that under the 

### DEPs interpretation of Section

# 6341 the Board of 

### Environmental Protection 

# Board or

### the maine Land Use 

### Regulation Commission 

## Commission in the 

### organized and 

### unorganized territories of the 

### State respectively have 105 days after receiving a 

### hydro electric project permit 

### application in which to make a 

### determina tion of 

### whether to issue such 

## permit3
This determination is based on a 

### number of

### factors including whether there is reasonable 

### assurance that the 

### discharge from the 

### proposed project will not 

### result in a violation of applicable 

### water quality 

### standards After the Board or 

### Commissionmakes its 

### determination on permit 

### issuance the 

### Commissioner or 

### Director has five working days 

### within which to issue ordeny 

### Section 401 

### certification According to the 

## DEP the issuance or denial of such certification by the 

### Commissioneror Director is 

### purely a 

### ministerial function and is 

### based on the finding of

### whether or not water quality 

### standards will be

### violated alreadymade by the Board or 

### Commissionpursuant to Section

# 6367G Since the actual determination of 

### whether water quality 

### standards will be met is made by the Board or 

### Commission and those 

### agencies have 60 days and 105 

### days respectively in which to 

### make their 

### finding the DEP argues 

### that the 

### time 

### period in 

### effect meets the federal requirement of 

### reasonableness


# 2 40

# CFR 12116 promulgated under Section 401 of the 

## Act provides that the reatonahle 

### period of time 

### shall generally he 

### considered to be 6 months but in 

### any event shall not 

### exceed 1 

# year 

# 2 While it is true that 

### under 38

# MRSA S

## 635A the 

### Commission has 105 days within which to 

### make its 

### decision it is 

## EPAs under standing that Section 

## 635A only provides the Board with 60 

### daysI

II

rt1

ITI



### 11 Attachment A May 

### 21 1987 Page 4

In accordance 

### with the 

## DEPs interpretation Section 

## 6341 pro vides that the 

### certification decision will be based on the 

### Board Commissionswater quality determination It also 

### states 

## how ever that the 

### Commissioner or 

### Director shall issue or 

### deny 

### certi fication 

### within 5 working days of the 

### applicants 

# request emphasis

## added This 

### could be 

### taken to mean that the 

### certifica tion decision is to be 

### made prior to the 

### Boards or

### Commissions determination on permit 

### issuance and 

### consequently their finding on whether the 

### discharge will meet 

### water quality 

### standards To correct any 

### misinterpretation that 

### might result from this language the DEP has 

### clarified the meaning of 

### Section 

### 634C in the 

### Adminis trative 

### Regulations For

### Hydroelectric Projects adopted 

### December 

## 10 1986 by 

### providing 

### that
The 

### Commissioner or

### Director as 

### appropriate shall 

### act to issue or deny 

### water quality certification within

### 5 working days 

### following the decision by the Board or 

### Commission to 

### approve or

### disapprove a 

### proposedproject pursuant to

# 38MRSA Section 636 

### emphasis

# added

In light of the 

### DEPs clarification of the 

### meaning of 

### Section 

## 6351 in the 

### regulations EPA finds that this provision is consistent with federal 

### requirements
With respect to the issue of the 

### written notification of the 

### States intention to waive its 

### certification authority the DEP in its 

### November 4th 

### response argued 

### that notwithstanding 40

# CFR §

## 12116 federal law does not require

### written notification of the 

### States waiver but that the State

### would be requiring such 

### notification through its rulemaking 

### process The regulations 

### subsequently issued 

### pursuant to 38

# MRSA 630 however did not 

### contain a

### written notification 

### require ment and the DEP at the 

### January 21st 

### meeting stated that it 

### would not be 

### requiring such 

### notification in

### writing
Section 

### 12116 requires written notice to EPA of the 

### States waiver of 

### certification in 

### order that 

### EPA may initiate its review under Section

# 401a2 of the Act 

### and Sections 

## 12113 12114 and 

### 12115 of the federal 

### regulations EPA is not 

### disapproving the absence of the 

### written notification provision in

## thStates regulations but 

### wishes to 

### make clear that the 

### States failure to provide such 

### notification may potentially delay permit or license 

### issuance 

# 2 Reclassification Act 

# a Section 15 

## 38

# MRSA g

# 4644F1

The term 

### existing instream water

## uses is 

### defined in 

### Section 

# 4644F1 as 

### significant well

### established uses that have 

### actually occurred on a

### water body on or after 

### November 

## 28 1975

### Attachment A May 

### 21 1987 Page 5 

### emphasis

## added As noted in our 

### August 20th 

### letter this 

### definition is narrower than 

### and therefore 

### inconsistent with the federal definition at 40

# CFR 6

# 1313e

# ie uses actually attained in the water 

### body on or after 

### November 

## 28 1975 whether or not they are included in the 

### water quality 

## standards
By including the terms 

### significant and 

### wellestablished in its 

### definition Maine 

### may be 

### precluded from finding 

### that a use exists 

### insituations where the 

### water quality is 

### suitable to allow 

### such a use to occur 

### even though the use 

### may not 

### currently be 

### occurring or has only been 

### occurring for a short 

### period of 

### time This would be 

### inconsistent with the federal 

### definition Accordingly EPA is 

### disapproving the definition of 

### existing use in Section

# 4644F1

In order to be consistent 

### with the federal 

### definition the State must delete the phrase 

### significant well

### established from its 

### definition In 

### addition to 

### clarify that a use can be an existing use even though it is not a 

### designated 

## use the State 

### must also 

### expresslyprovide that the use is 

### existing whether or not it is included in the water 

### quality 

### standards Unless such 

### action is taken within 90 

### days EPA 

### shall in 

### accordance with federal 

### requirements initiate 

### promulgation 

### action 

# b Section 15

## 38

# MSRA §

# 4644F5

The 

### States antidegradation provision is 

### contained in 38

# MRsA
6

# 4644F Subsection

# 5 of 

### Section

# 4644F provides 

### that
The board may

### only issue a 

### discharge license

## pur suant to Section 

## 414A or approve 

### water quality certification 

### pursuant to the United 

### States Clean Water

## Act Section 

## 401 Public Law

## 92500 as 

### amended which 

### would result in 

### lowering the 

### existing quality Of any 

### water body aftermaking a 

### finding following 

### opportunity for

### public participation that the action is 

### necessary to achieve 

### important economic or social 

### benefits to the State and 

### when the action is in 

### conformance with subparagraph 

# 3 That finding must be 

### made following procedures established by rule of the 

### board

In 

### accordance with 40

# CFR 6

# 13112a2 this provision 

## re quires a finding of 

### important economic and social 

### development prior to the approval of a 

### discharge which would result in a lowering of the 

### water quality

### within a 

### waterbodys classification 

### however as we noted in our 

### July 16th 

### letter this 

### section does not expressly 

### provide that the 

### water quality cannot be 

## low ered below the level 

### necessary to 

### fully protect 

### existing 

### uses 40

# CFR S

# 13112a2

In its September

# 5 1986 

### letter the DEP 

### explained that this Section does not stand on its 

### own and must be 

### read in 

### conjunction With 

### Section

# 4644F1 which does expressly require the full protection of existing 

### uses EPA finds the 

### States interpretationAttachment A May 

### 21 1987 Page 6
of Section

# 4644F satisfactory especially since it is 

### support ed by the 

### Water Reclassification Report of the Joint 

### Standing Committee on 

### Energy and 

### Natural Resources 

## March 

# 19864

We also noted in our July letter that Section

# 4644F5 does not contain a 

### requirement that the State satisfy the 

## intergov ernmental 

### coordination and 

### public participation provisions of the

# Stas continuing planning process

# CPP 40

# CFR

g

# 13112432 However the DEP has informed EPA that 

### public Participation and authority for 

### intergovernmental coordination are 

### required by the draft Rules 

### Relating to 

### Antidegradation Policy and 38

# MRSA S 

## 366 respectively EPA finds the federal 

### requirements are 

### therefore satisfied provided that the draft 

### antidegradation rules are 

### adopted Finally Section

# 4644F5 does not contain a specific 

### require ment that the State assure that there will be achieved 

## the highest statutory and 

### regulatory requirements for all 

### new and 

### existing point sources and all 

### costeffective and 

### reasonablebest management practices 

### fornonpoint source 

## control AO

# CFR 13112a2 In its 

### September 5th 

### letter the DEP 

### explained that these 

### require ments are 

### covered by Secton 

## 414A of Title 38 of the

# MRSA That 

### section provides that the Board of Environmental 

### Protection shall issue a license for the 

### discharge of any 

### pollutant only if it finds among 

### other

### things that
The 

### discharge will be 

### subject to 

### effluent 

### limita tions which require 

### application of best 

### practicable treatment Effluent limitations means any 

### restriction or 

### prohibition including hut not 

### limited to 

### effluent limitations standards of 

### performance for new 

### sourCes toxic 

### effluent standards and other 

### discharge criteria regulating 

### rates quantities and 

### concentrations of

### physical chemical biological and other 

### constituents which are 

### discharged directly or 

### indirectly into waters of the 

### State Best practi able 

### treatment means the 

### methods of 

### reduction 

### treat ment control and 

### handling of 

### pollutants 

### includ ing 

### process methods and the 

### application of best 

### conventional pollutant control technology or hest 

### Available technology economically achievable for a 

### category or class of 

### disCharge sources which the board 

### determines are best 

### calculated to protect and 

### improve the quality of the 

### receiving water and which are 

### consistent with the 

### requirements of the Federal 

### Water Pollution Control

## Act as 

### amended In 

### deter mining best 

### practicable treatment for each such



# 4 See page

# 8 In no instance 

### may the 

### Board of Environmental 

### Protection approve a discharge 

### which would cause 

### waterquality to be 

### below the 

### standard of the 

### appropriate 

### classificationAttachment A May 

### 21 1987 Page 7 category or

### class the 

### board shall 

### consider the then existing state of 

### technology the effectiveness of the available 

### alternatives for control of the type of discharge and the 

### economic feasibility of such alternatives 

### emphasis 

## added
Because the State has 

### interpreted this language to 

### cover both point and 

### nonpbint source 

### control EPA is not 

### disapproving Section 

# 4644F5 at this

## time however EPA believes that the 

### States interpretation is 

### vulnerable to a legal challenge and therefore expects the State to 

### incorporate a 

### specific requirement on non point source control in 

### either the 

### statute or the rules and regulations 

### promulgated under the 

### statute during the next 

### stan dards 

### revision The DEP 

### should submit written assurance to EPA 

### within 30 days of 

### receipt of this letter that it will be 

### recommend ing such a 

### requirement to the 

### legislature during 

### the next standards 

### revision 

# C Section 15 

## 38

# MSRA S 465

# 24 Protection of Salmonid 

### Spawning

In our July

## 16 1986 

### letter we 

### noted that the 

### dissolved oxygen 

### criterion in 

### Section 465 

### protective of 

### salmonid spawning areas was provided for in Class

### A and 

### Class B 

### waters but not in Class C

### waters The 

### States September

# 5 1986 

### response indicated that the dissolved 

### oxygen criterion for salmonid 

### spawning was not included in the 

### standards since the EPA 

### national water quality criteria document 51 FR 

### 22978 

## June 24 

## 1986 for 

### dissolved oxygen was not final 

### during legislative action on the 

### bill The DEP 

### stated 

### however that it 

### would use 

### EPAs dissolved oxygen criterion for the 

### Maine standard in 

### designated spawning areas in Class B and C

### waters In 

### light of these 

### facts EPA is not 

### disap proving this section at 

### this 

### time however the DEP 

### should submit 

### written assurance to EPA

### within 30 

### days of receipt of this letter that it will be 

### recommending adoption of the EPA 

### national criterion to the 

### legislature during the next 

### standards revision 

# d section 15 

## 38

# MRSA S 465 

### Chronic Criterion for 

### Dissolved 

### Oxygen EPAs July 

## 16 1986 

### letter pointed out that the 

### Maine instantaneous dissolved oxygen 

### criterion in 

### Section 465 

### might not provide full 

### protection in light of the final 

### national criterion

### document 51 FR 22978 

### Jane 

## 24 

## 1986 which recommends that a 

### chronic criterion be utilized in 

### addition to an 

### instantaneous 

### minimum
The 

### states September 

# 5 1986 

### response indicated that the standards only contain an 

### instantaneous minimum criterion since the national 

### criteria document for 

### dissolved oxygen was not final at the time of legislative 

### action The DEP 

### further stated that the 

### instantan eous 

### minimum criterion listed in the 

### standards would yield averages 

### similarto those in the 

### national criteria document and that the instantaneous 

### minimum would be 

### easier to

### monitorenforce and 

### model Nevertheless EPA believes that 

### chronic criteria for7

J 

### Attachment A Hay 

### 21 1987 Page 8
dissolved oxygen are 

### needed in 

### water quality 

### standards This is 

### particularly true for 

### the many flow regulated 

### streams in 

### Maine where nearly 

### steadystate low flows during long 

### periods of 

### summer time conditions may 

### cause chronic impacts on 

### fisheries
Since the national 

### document was not finalized until after 

### legisla tive action on the 

### bill EPA is not disapproving this section at this

### time however the 

### DEP should 

### submit written 

### assurance to EPA wittiln 30 days of its 

### receipt of this letter that it will be recommending adoption of 

## EPAs chronic criterion for dissolved oxygen to the legislature 

### during the next standards 

### revision 

# e Section 15 

## 38

# MRSA S§

# 4671A2 and

# 7A3

In Sections

# 4671A2 and

# 7A3 the Maine 

### legislature recognizes that at 

### certain times the impoundments oh the 

### Andro scoggin and Penobscot 

### Rivers respectively have not and 

### maynot continue to meet the 

### Class C 

### requirements for aquatic life and 

### dissolved oxygen due to 

### conditions existing in the 

### impoundments The legislature further 

### recognizes that these 

### impoundments 

## con stitute a valuable 

### indigenous and 

### renewable energy resource for 

### hythoelectric energy The legislature concludes by stating 

### that
the value and 

### importance to the people of the state of hydroelectric 

### energy and the unavoidable 

### conse quences towater

### quality resulting from the 

### exist ence of these 

### impoundments shall be 

### considered when the board 

### determines the impact of a

### discharge on designated uses of 

## impoundments These 

### impound ments shall be 

### considered to 

### meet their

### classifica tion if the 

### department finds that conditions in those impoundments are 

### not preventing their 

### designated uses from being 

### reasonably 

### attained
As pointed out in our

### August 20th 

### letter the federal 

### regulations 1 

### require the full 

### protection 

## not reasonable attainment of a 

### classifications designated 

### uses Accordingly if it was the 

### legislatures intent to 

### provide for soniething less than the full 1 

### protection of uses and to 

### permit the 

### violation of the Class C A 

### critetia in these 

### impoundments this language is 

### inconsistent with federal 

### requirements and 

### must be 

### disapproved
The DEP has 

### indicated 

### however that the 

### provisions in 

### question merely state the intent of the 

### legislature to 

### create subcategories of the existing 

### classifications uses and assign 

### criteria specific to these impoundments 

### pursuant to 40

# CFR 13110 after the State 

### conducts the 

### necessary studies and follows the 

### proper procedures for such a 

### suhcategorization 

# see September 

# 5 1986 

## letter5 Thus the 

### State notes in its letter that a 

### UAA 

# 5 As we pointed out in 

### our July 16th 

### letter under 40

# CFR

S

# 13110g the State 

### may adopt subcategories of an 

### existing classifications uses 

### after showing through a use 

### attainability Footnote continued on next 

## page

### Attachment A May 

### 21 1987 Page 9
is 

### currently being conducted for the impoundments on the 

### Andro scoggin 

### River and that once the 

### study is 

### completed hearings will be 

### held and criteria 

### selected and 

### legislated Completion of the 

## studyhowever has been delayed several 

### times In 

### addition no study is being 

### performed or planned 

### forthe 

### impoundments on the 

### Penobscot 

### River Since the UAAs are not 

### completed the 

### States attempt at 

### subcategorizing these 

### impound ments is 

### hot yet 

### effectuated 

### Therefore until a change in criteria is 

### developed and 

### justified by a UAA and the 

### section 

### 13120 standards revision procedures followed the language in Sections

# 4671A2 and

# 7A3 has no effect on the 

### classifi cation of the impoundments 

### which under Sections

# 4671A1 and

# 7A2 are 

### Class

# C6

Inasmuch as the legislative intent of Sections

# 4671A2 and 

# 7A3 is 

### consistent with 

### EPAs interpretation as 

### outlined 

### above the 

### provisions are

### approved 

## If however the intent of the provisions is to permit the 

### violation of existing 

### criteria prior to

a proper 

### subcategorization under Section 

# 13110g or the 

### develop ment of site specific 

### criteria under Section

# 13111b1ii these 

### sections must be 

### disapproved The State should 

### therefore submit a 

### written statement to EPA within 30 days of its 

### receipt of this 

### letter from the Maine 

### Attorney 

### Generals Office on their 

### interpretation of these 

### sections

5

# cont
analysis

# UAA that the 

### attainment of the 

### designated uses is not feasible because of one or

### more of the 

### reasons set forth in 

### subsections

# 1 through

# 6 of 

### Section 

# 13110g and 

### following the 

### procedures for a 

### standards revision under 40

# CFR 13120
The DEP was also informed at the 

### January 21st 

### meeting that it 

### could in the 

### alternative develop site specific criteria for these 

### impoundments 

### if after 

### conducting a study based on 

### accept able 

### scientific procedures the State 

### determined that the existing 

### uses will be 

### protected even though 

### specific criteria may be 

### violated 

# see 40

# CFR S

# 13111b1ii 6 The 

### States water 

### quality 

### standards in 

### addition to 

### establishing the 

### water quality goals for 

### specific 

### waterbodies also serve as the 

### regulatory basis for the 

### establishment of 

### water quality

### based treatment 

### controls Since the 

### UAAs have not been 

### completed and different 

### criteria established for 

### these impoundments EPA will continue to 

### write permits for the 

### upstream dischargers based on Class C

### criteria

### J TED54 

## 01

k111101a
pRoie UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

August 

## 32 1967

Dean

# C Marriott Commissioner Maine 

### Department of 

### Environmental Protection State House 

### Station 17 

### Augusta Maine 04333

Dear 

### Commissioner 

### Marriott
Thank you for

### your July

## 16 1987 letter outlining the plans the Maine 

### Department of 

### Environmental Protection 

# DEP has to correct the 

### deficiencies in state law which necessitated 

### EPAs May

## 21 1987 

### disapproval of 

### certain sections of

### Maines water quality 

### standards

I felt our recent 

### discussion on this matter was helpful and I am 

### delighted that the 

### DEP plans to 

### work with 

### EPA the 

### Legislature and the 

### Governors Office to 

### develop the changes necessary to comply fully with the 

### federal statutes and 

### regulations
We 

### encourage your efforts to 

### substitute measurement criteria for the 

### adjectives significant and 

### well

### established in

# LD 2283 to clarify the 

### procedure by which 

### existing uses will be established in the 

### standards implementation 

### process
In response to 

### your 

### letter we 

### request the following information 

## andor clarification of

## DEPs planned future course of 

### action 

# 1 Your letter 

### stated your intention to

# comply fully with the public 

### notice and 

### EPA review criteria while preserving the 

### coordination intent of 

### the Maine Waterway Development and 

### Conservation

# Act It is 

### unclear how the 

### procedural scheme 

### outlined for dam 

### certification under

# LD 2107 can be altered to 

### comply with the 

### public notice and 

### EPA review 

### requirements short of the repeal of these 

### sections Therefore we request 

### clarification of what 

### specific proposals the DEP intends to make to the 

### Legislature on this 

### issue In 

### addition we request that DEP inform us of the number and locations of potential projects which could be 

### affected by

# LD 21071 

# 2 With regard to the 

### Androscoggin and Penobscot River 

### classifications we 

### request that the DEP submit a detailed schedule for the 

### preliminary decision making steps regarding the future 

### classification of the 

### segments

# ie public 

### hearings

In 

### addition there are a 

### number of issues contained in our May 

## 21 1987 

### disapproval letter on 

### which we still require specific 

### confirmation 

# 1 Written assurance from 

### DEP that it will recommend the required changes to the non

### point source control language 

### contained in the

# LD 2283 

### during the next 

### standards revision 

# 2 Written 

### confirmation that DEP will recommend adoption of the national 

### dissolved oxygen criteria for salmonid 

### spawning in accordance with the 

### national criteria document 51 FR

### 22978 June 

## 24 1986 to the 

### Legislature when the standards are next 

### revised 

# 3 Written confirmation that the DEP will recommend adoption of a chronic 

### dissolved oxygen criterion in accordance with the national 

### criteria 

### document 51 FR 

### 22978 June

## 24 1986 to the Legislature 

### during the next 

### standards revision
We 

### must begin the 

### process of 

### preparing a 

### promulgation package for 

### publication in the 

### federal register due to the framework set forth in our 

### regulations at 40

# CFR §13122 Publication of the proposed rules 

### should coincide with the next state Legislative 

### sessions efforts to 

### address correction of the disapproved standards 

### provisions

I thank you for

### your continued cooperation and trust that by working together we can reach a 

### mutually acceptable solution to the issues 

### outlined 

### above

Sincerely 

### yours

I 

## 1 N Michael 

# R Deland Regional 

### Admistrator



## cc David 

### Sabock 

# EAHeadquarters Steven 

### Groves 

## Mane DEP Tim

### Glidden Office of 

### Policy and Analysis James

# E Tierney Maine Attorney General Ron 

### Kriesman 

## Esq Natural Resources Council Lee

# C Shroer

# Esq EPA 

### Headquarters Robert 

### Moore 

## Esq Office of the 

### Governor of Maine9 E1 ST4 re a+ 4

## ft

i11017

141PRo0 UNITED 

### STATES ENVIRONMENTAL PROTECTION 

### AGENCY

REGION

I JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211

November

## 3 1988 Stephen

# W Groves Director Bureau of

### Water Quality Control State of

### Maine Department of Environmental Protection State 

### House Station 17 

### Augusta Maine 04333 117 n 

## Re Proposed Changes to 38

# MRSA §§ 

### 363C and

# 4644F1 and 

### Related Matters
Dear

## Mr Groves By letter 

### dated May

## 21 1987 the 

### Environmental Protection Agency 

# EPA disapproved pursuant to 

### Section 303 of

### the Clean 

### Water 

## Act 33

# USC § 

### 1313 and 

### the regulations promulgated thereunder at 40

# CFR Part 

## 131 the following sections of the 

### Maines Water Quality

### Standards

1 38

# MRSA §

# 464F1 Definition of

### existing

# use and

38

# MRSA § 

## 363C Reclassification of 

### proposed hydroelectric impoundments to Class GP

# A

In our May 21st 

### letter we also 

### requested that the 

### DEP provide 

### written assurance that it 

### would make other 

### specified changes to 38

# MRSA §§

# 4644F5 and

# 46524 during its next water 

### quality review and provide an 

### interpretation of 38

# MRSA § 

# 4671A2 and

# 4677A3 from the 

### Maine Attorney Generals 

### Office
On 

### November

## 25 1987 the Maine Department of 

### Environmental Protection

# DEP sent EPAproposed changes to 38

# MRSA §§ 

## 363C and

# 4644F1 Consistent with the 

### informal comments 

### provided to the DEP on 

### April

## 10 1988 

## EPAs position with 

### respect to 

### these proposed changes is set forth 

### below Maine has also 

### recently proposed regulationswhich implement 

### certain provisions of 

### the Maine Water QualityStandards Chapter 587 of 

### these regulations directly relates to the 

### definition of existing use 

### proposed by the 

### State in 

### Section

# 4644F1 We have therefore 

### included comments on 

### this regulation as

### well 

# 1 Section

# 464F1 Definition of

### Existing

# Use

The definition of 

### existing 

## use in

### the proposed revision to 

### Section

# 464F1 is 

### missing certain key language which is 

### in the federal 

### definition of 

### that tern at 40

# CFR §

# 1313e

# 2

Specifically the 

### federal index date of

### November

## 28 1975 which is in 

### Maines current version of Section

# 464F1

# is omitted in

### the proposed 

### revision This date

## or if 

### preferred an 

### earlier

### date must be included inthe 

### States definition of 

### existing

# use In 

### addition tkeproposed definition does 

### not provide that uses 

### are existing

# whether6770Eiare included In the 

### water quality

## standards Such language 

### mustbe added to 

### the 

### States definition so it is clear that a use 

### may be existing even 

### though it is 

### not a 

### designated use under

### Maines Water QualityStandards The 

### proposectliaiDn also includes language which is 

### incoriSTETZFEwith the federal antidegradation 

### policy Specifically the 

### revision states that 

### factual determinations of 

### what constitutes an existing in

### streamwater use on a 

### particular water body and the 

### extent ofallowable impact on the 

### existing use shall 

### be made on a case

# bycase

# basis Emphasis

## added The phrase 

## and the 

### extent of 

### allowable impact on the 

### existing 

## use must be 

### deleted since it 

### indicates that existing uses will 

### not be fully maintained and 

### protected as required by federal 

### law Unless theachangesnoted above are 

### made the 

### statutory provision will not be 

### approvable
In the 

### proposed dkixiition of

### existing

# use Maine has also 

### listed specific criteria for

### the State to 

### examine in 

### making

## case by

## case determinatiOns of

## what constitutes an 

### existing in

### stream water use on a 

### particularwater

# body The 

### recently proposed regulations in 

### Chapter 

## 5871 of

### the Bureau of

### Water Quality Control Regulations expands on 

### the criteria the 

### Board will examine In 

### general this 

### approach of including 

### the criteria the State 

### will examine in 

### determining whether a use is 

## existing in 

### the

### States definition of

### existing

# use is 

### acceptable to

## EPA It is 

### not 

### clear however 

## if based on the 

### specific criteria the State has 

### chosen all 

### the uses that wouldbe considered 

## existing under the federal definition would also be 

### considered 

## existing under the 

### States definition 

# In particular since the criteria listed in both the 

### proposed

statutory provision and 

### the regulation emphasize the 

### length and

I 

### number of times a 

### use has 

### occurred EPA is 

### concerned that the 

### IState could determine that a

### particular use was 

### not 

## existing because such a use was not 

### currently occurring or

### documented as 

### occurring even 

### though the water quality was suitable to 

### allow 

### such a 

### use to 

### occur For

### example the 

### State might improperly

determine that 

### shellfishing is 

### not an 

### existing use in an 

### area where shellfish are 

### propagating and surviving and are 

### suitable for

### harvesting simplybecause the shellfish are 

### not currently being harvested 

### See 

## EPAs

## Qutions and 

### Answers on 

### Antidegradation dated Aug t

# a485 Therefore although EPA would not 

### disapprove Section

# 464F1as proposed we do 

### recommend that 

### Maine add language to 

### either the 

### statute or the

# 3

regulations that would make it clear that the State will take into 

### account whether the existing water 

### quality is 

### suitable to 

### allow certain uses to 

### occur even though they 

### may not be currently 

### occurring



# 1 The proposed regulations in 

### Chapter 587 also raise a question 

### regardingthe 

### States antidegradation 

### policy Under the federal anti

### degradation policy any 

### proposed discharge which would cause a 

### lowering ofwater quality requires a 

### demonstration of 

### important economic and social 

## benefits 40

# CFR

§

# 13112a2 EPAs currect view is 

### that if a 

### discharge will 

### not 

### significantly lower water quality the antidegradation requirements will be met and a 

### detailed economic and social 

### benefit analysis need not be 

### performed Since there is no EPA 

### national guidance identifying a single 

### acceptable method for 

### determiningwhether a 

### discharge is 

### significant the 

### Region has 

### proposed that the definition of

### significant be left up to the 

### states subject to EPA 

### approval

Furthermore the criteria the State has chosen to include in 

### Chapter 

## 5871 relate primarilyto 

### humanuses such as

### boating swimming

### fishing 

## etc Since 

### Maines Water Quality Standards 

### specifically designate 

### habitat for fish and 

### other aquatic 

### life
as a

## use EPA also recommends that additional 

### criteria be 

### developed which relate to the 

### aquatic life

# use This could include 

### reports ortestimonywhich document 

### the species of fish in a 

### particular

### waterbody or 

### habitatsuitability information confirming that certain aquatic uses 

### could occur in

## awaterbody in the 

### absence of 

### testimony

Under the proposed Chapter

# 5875B Maine has chosen to operate 

### under the rebuttable presumption that 

### lowering of the existing 

### quality of 

### anywater 

### body will occur 

### when a 

### proposed discharge or 

### activity consumes greater than

## 20 of

### the remaining assimilative capacity allowed in

### the appropriate

## class Thus all 

### discharges below the

## 20 cutoff would automatically be 

### determined to be 

## insignificant Such an 

### approach could 

### have results 

### which are contrary to the federal 

### antidegradation policy since 

### repeated or small discharges below the

# 20 cutoff could 

### result in 

### significant water qualitydegradation without a 

### demonstration of 

### economic and social 

### benefit For this reason the 

### Region finds 

### that the proposed regulation as

### drafted may not be 

### approvable without 

### changes
Until 

### national policy on 

### this issue is 

### established the 

### Region would find 

### this provision acceptable if it is 

### redrafted in the 

### following 

### manner First the 

### regulation should be 

### changed so that all 

### discharges greater than

## 20 of 

### the remaining assimilative capacity would be automatically deemed 

## significant17

J 

# 4

Second the 

### regulation should provide that all 

### discharges less than 

### the

# 20 cutoff will be 

### subject to a case

## bycase review by the State 

### to determine whether or not the discharge is 

### significant In 

### examining each discharge on a case

# bycase basis the State

### will consider certain listed 

### criteria such as the 

### degree of

### degradation that has been 

### permitted previously the 

### sensitivity of

### the particularwater

### body etc Finallythe regulation should state that notice of 

### the State finding of 

### significance or 

### insignificance and an 

### opportunity to 

### comment on such 

### finding will be included in the 

### public notice of the 

### permit proposed to be 

### issued to the 

### discharger 

# 2 38

# MRSA 363C Reclassification of 

### Proposed Hydroelectric Impoundments
The 

### proposed provisions on 

### state certification and 

### dam licensing are 

### acceptable but the 

### State must clarify Section 

# 635Bl

# C so that it is 

### understood that it is the change in the 

### characteristics of the 

### waterbody both 

### upstream and 

### downstream resulting fromthe proposed dam that must not 

### violate Section 

# 4644F
3 other Issues
To date 

### EPA has 

### not received written assurances that 

### the State will 

### incorporate specific requirements on 

### nonpoint source control in 38

# MRSA §

# 4644F5 or include 

### dissolved oxygen criteria 

### protective of

### salmonid spawning in 38

# MRSA § 

# 46524 as 

### required by

## EPAs May

## 21 1988 letter 

### referred to 

### above These written assurances should 

### be submitted to the agency as 

### soon as 

### possible
In 

### addition EPA

### has not 

### received an 

### interpretation of 38 

# MRSA §

# 4671A2 and

# 4671A3 from the 

### Maine Attorney 

### Generals Office The Region recognizes that the 

### State has been following 

### the interpretation put forth by EPA in its 

### May 6th letter 

### regarding these two 

### provisions However until this 

### interpretation is 

### confirmed bythe Attorney 

### General the provision is 

### subject to 

### alternative interpretations in the future which 

### may not be 

### consistent with federal 

### requirements For this 

### reason the State must either remove the 

### language in 

### question from

### the statute orsubmit a 

### formalAttorney 

### Generals Statement which 

### indicates that it is 

### being read 

### consistently with federal 

### requirements

# 5

Please feel 

### free to call Eric Hall of

### mystaff or Tonia

# D Bandrowicz or

### Jonathan Kaledin of the Office of 

### Regional Counsel if 

### you have 

### anyquestions regarding this 

### matter 

## Mr Hall 

### can be 

### reached at

# 617 5653533 

## Mr Kaledin can 

### be reached at

# 617 5653334 

## Ms Bandrowicz will 

### be on detail to

## EPAs Washington 

# DC Office until 

### February 1989 but can be 

### reached at

## 202 4758180 Sincerely

David

# A Fierra Director Water Management Division


## cc Ron 

### Kriesman Natural Resources Council Maine David

# K Sabock 

## WH585 Jonathan 

### Kaledin RRC22037

7

11 00sto ArA h410P1

447 44 rcto19 

### UNITED STATES ENVIRONMENTAL PROTECTION 

### AGENCY REGION 1 JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211


### May 

## 11 1989



### Philip

# F Aherns Deputy Attorney General Department of

### Attorney General State 

### House Station 6 

### Augusta ME 04333 

## Re 38 

### MRSA

# 4671A2 and

# 4677A3

Dear

### Chip
It is 

### our understanding that the Maine Departmentkof Environmental Protection

# DEP at the request of

### the

# US EPA has 

### asked your office 

### for an 

### interpretation of 38 

### MRSA 

# 4671A2 and

# 4677A3 lam writing to find 

### out the outcome ofyour review of

### this legislation specifically as to 

### whether you agree 

### with 

## EPAs interpretation as set forth in our 

### May

## 21 1987 

### letter to 

### the Maine DEP 

## attached
would appreciate if 

### you could provide us

### with a 

### response in the 

### near future

### because if 

## EPAs interpretation in 

### notvalid and a 

### statutory change is 

### necessary it is 

### ourunderstanding that the state legislature will only be in 

### session until the end of

### June Thank you for

### your assistance in 

### this 

### matter Sincerely

Ifonia

# D Bandrowicz Assistant General Counsel 

## CC John 

### Edwards ME 

### AG Steve 

### Groves ME 

### DEP Tim

### Glidden Policy Office Bill 

### DiamondDave Sabock OWRS Ron

### ManfredoniaEric Hall Region IUNITED

### STATES ENVIRONMENTAL PROTECTION 

### AGENCY
REGION JFKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022032211

December 

### 20 1990


## 1 Dean 

### Marriott Commissioner Department of 

### Environmental Protection State House Station 17 

### Augusta ME 04333
Dear 

### Commissioner

### Marriott
The Environmental 

### Protection Agency has 

### completed its review of several 

### pieces of 

### legislation and 

### regulation revising and adding to the 

### Maine water 

### quality standards program Also considered in this review is a 

### letter from 

### the Maine Attorney 

### General containing a critical 

### interpretation of

### reasonable attainment ofwater`tkses The specific documents 

### reviewed 

## are Regulations Chapter 580 

### Procedures for sampling and 

### analysis Chapter 581 

### Assimilative capacity of

### streamsand

### ponds streamminimum 

### flows zone ofgreat 

### ponds of

### passage and 

### trophic state


### Chapter 582 

### Temperature Chapter 584 

### Numeric criteria Option 1 

### Chapter 585 

### Identification and

### designation ofspawning areas in 

### Class B and C

### waters Chapter 586 

### Discharge restrictions in Class

### A waters
1989 

### Legislation Repeal of 38 

### MRSA 

## §363C Automaticreclassification Enactment of 38 

### MRSA 

### §464 Sub

## §411F Antidegradation Repeal and 

### amendment of 38 MRSA 

### §634 sub

# §1 38 MRSA §635

# B 38 

### MRSA 

### §636 sub

# §7 1

## AE and

# F Repeal of 38 

### MRSA 

### §636 sub

# §7 1

# G Enactment of 38 

### MRSA

## 063 sub

# §8 All 

### dealing with water quality 

### certification of 

### hydroelectric 

### projects
1990 

### Legislation Amendment of 38 

### MRSA 

### §464 sub

# §4 1

# F Antidegradation

S T0


## 011W0

PRINTED ONRECYCLEDPAPER

# 7

Amendment of 38 

### MRSA 

### §467 Reclassification of 

### several 

### basins Androscoggin 

### River Dennys 

### River East 

### Machias 

### River Machias 

### River Mousam 

### River Narraguagus 

### River Penobscot

### River Pleasant

### River Presumpscot

### River Royal 

### River Saco 

### River

## St Croix

### River 

## St George

### River

## St John 

### River Salmon Falls 

### River Union 

### River Kennebec River and 

### Maine Coastal Basins Enactment of 38 

### MRSA 

### §414C and 

### §466 sub

# §§2A and

# 9C Color 

### pollution control Amendment of 38

## MRSA4467 sub

# §15 T

# C An act 

### preven ting the 

### Board ofEnvironmental Protection from

### consider ing 

### the impact on 

### water quality of the 

### Squa Pan 

## hydro electric 

### project Amendment of 38 

### MRSA

## §414A sub

# §2 Permitschedules of 

### compliance Enactment of 38 

### MRSA 

### §420 sub

# §2 IT 

### A to

# G AdoptiOn of

### numeric 

### criteria Option

# 1 through legislation Interpretation A letter fromthe Maine Department of 

### the Attorney

## Gen eral 

### interpreting 38 

### MRSA

# §4671A2 and

# 7A3 indicating that 

### reasonable attainment means full 

### compliance with Maine law and regulation Pursuant to 

### sections 303

# c1 and 303

# c2B I am 

### approving your submittals 

### with one 

### exception the 1990 

### amendment of 38 

### MRSA 

### §467 sub

# §15 ¶

# CAn Act 

### Regarding Squa Pan

## Stream Under

## sep arate

### cover I am 

### sending formal 

### notification of 

### EPA disapproval of the Squa Pan 

### legislation With this approval of

### yourclassifications numeric criteria 

## adop tion antidegradation 

### policy and properinterpretation of

### attain ment of

### designated 

## uses the State of Maine is in 

### compliance with the federal 

### regulations 40 

### CFR

### 131 governing water quality 

## stan dards My staff and I 

### look forward to continued cooperation with DEP and 

### to better coordination with the Maine Legislature in the areas of 

### standardsdevelopment and implementation We are 

### prepared to

### offer assistance in the 

### drafting and 

### review of 

### companion policy and 

### guidance documents at

### yourconvenience If you have any 

### questions please call me or

### have your staff call 

### EricHall at

# 617 5653533 SiRcerely

f 

### U 

### e4iona AatInfsirator 

### tavidrk Satock 

## EPA WH585

epSichrioer 

## EPA LE

## 132W 

## Davedaurtafhanche ME DEP Tim

### Glidden Office of 

### Policy Analysis ME 

### Legislature40Dar4ki 

### 4

# CA aTii

PRcai

June28 1999 

### UNTED STATESENVIRONMENTAL PROTECTION 

### AGENCY REGION I JOHN

### FKENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 022030001

Dennis

## APurington Acting Director Bureau ofLand Water Quality
INLEDept ofEnvironmental Protection StateHouse Station 17 Augusta

## ME 043330017

Dear

### MrPurington OPTIONAL FORM Si7DOJ 

## FAX TRANISMiTTAL A11 g

11a PI961

Iirnik 

## 7J

orLefe Ali41 NprUkcprocy ite6 

### D6e 11te

# e2 NPuAg1=1M6 

### 44

11zo

### 71

## F7

# 29 fa

NSN 7s40 I 3 17Tad OD IDI GeNERALSERVICES A01493STRAZION

This letter is toacknowledge yourJune

### 21 1999submittalofacompleteand current effective water qualitystandards

# WQSpackage forinclusion intheClean Water Jict

## WQS docket for Maine Asyou areaware theWater Quality Stamdards

# WQS docket is mecessarytosupport the 

## WQS program after

### EPArevises its

## WQS rule inresponse tothe Alaska court RilingAlaska CleanWaterAlliance

### v Clark 

### NoC961762 Tuly

### 8

### 1997 Inconjunction With therule making Process

### EPAwill offerthepublicanopportunity toreview the

## WQSdocket 

### We will contact you ifthepublic review orfurtherreview by

### EPA identifies anyomissions orerroneous inclusions thatmayneedtobecorrected

thankyouforyourassistanCe increating the

## WQSdocket Pleae contact me

### 6179181501 or
Bill Becicwith of

### mystaff

### 6179181544 ifyouhaveanyquestions
Sincerely

LindaMurphy Director Office ofEcosystem Protection

cc Fred eutner

### EPASASD RonaldPoltak

### NEIWPCC

Eniomet Address

# UM httpilwwwapecpv Rocycis4Racy AN PrfcitdWfth Vagetabla01 841381 OmonRDCycled Pepeirpnimurn

# 2 Postconsurma5Water Quality Criteria Bibliography

### Maine Bureau ofLand andWater Quality MaineDepartment ofEnvironinental Protection June 16 1999CORRECTED 

### COPY 63099

NameTitle Citation Date oflast amendment Number

ofPaves Statutory Sections Definitions 38IvIRSA361A July9 1998 2 Waiver ormodification ofprotection and improvement laws 38

### MRSA363D July14 1994 1

Definitions 38

### MRSA410H Oct9 1991 

## 1 Programimplementation 38VERSA410J June30 1992 1 Waste discharge licenses 38MRSA413 July9 1998 3 Conditions oflicenses 38

### MRSA414A July9 1998 5 Publiclyowned treatment works 38

### MRSA414B July9 1998 1 Colorpollution control 38MRSA414C Sept19 1997 

## 2
Certaindeposits and discharges prohibited 38 lvIRSA 417 July14 1990 1 Logdriving and storage 38

### MRSA418 July9 1998 1 Protection ofthe lowerPenobscotRiver 38

### MRSA418A July13 1982 1 Prohibition onthe useoftributyltin as an antifouling agent 38

### MRSA419A March 29 1993 2

Certaindeposits and discharges prohibited 38

### MRSA420 June11 1999 

# 5 Discharge ofwaste fromwatercraft 38

### MRSA423 June30 1989 1

Discharge ofwastefrommotorvehicles 38

### MRSA423A Sept29 1987 1 Enforcement 38

### MRSA 451 July

### 9 1998 1 Timeschedule variances 38

### MRSA451A Oct 13 1993 3 Classification ofMaine waters 38MRSA464 July

### 9 1998 11 Standards forclassificationoffresh surface waters 38MRSA

### 465 July14 1990 2 Standards forclassification oflakes and ponds 38

### MRSA

## 465A July14 1990 1 Standards forclassification estuarine and marine waters 38

### MRSA465B July14 1990 2 Definitions 38

### MRSA466 July14 1990 2 Classification ofmajorriverbasins 38

### MRSA

## 467 July14 1994 1 15 Classification of minordrainages 38MRSA

## 468 June30 1992 I 4 Classification ofmarine waters 38

### MRSA

## 469 June24 1991 7 Approval criteria 38

### MRSA636 Sept29 1995 2

As amended by

### An Act toAmend theWater Quality Laws toEstablish aNew Standard forMercury Discharges PI 1999ch 500 June 11 1999 5



### Amended by

### An Act toAmend Certain Laws Administered bythe Department ofEnvironmental Protection Bureau ofLand andWaterQuality PL 1999ch 243 September 18 1999 9


### Amended by

### AnAct toReclassify CertainWaters of
theState PL 1999ch 277 September 18 1999 15

Rule Chapters Administrative Regulations forHydropowei Projects 06096

### CMR450 and 04061 CivLR
11 May4 1996 13

Regulations Concerning the UseofAguatic Pesticides 06096

### CMR514 May4 1996 i Environmental Regulation Surface Waters Toxics Control Program 06096 5305 Augr13 1997 13

Discontinuance ofWastewater TreatmentLagoons 06096

### CMR550 May4 1996 A

1r

=1

i Stormwater andCombined SewerOverflows 06096

### OAR570 

### May41996 1 SnowDumps ExemptionfromWaste Discharte License 06096

### CMR573 May4 1996 2 Relating toWater Quality Evaluations 06096

### CMR581 41996 2 Regulations

Regulations Relating toTemperature 06096

### CMR582 

### May May4 1996 1 Identification of FishSpawning Areasand Designation of SalmonidSpawning Areas 06096

### CMR585

r May4 1996 2

Rules Pertainingto ClassAWaters 06096

### CMR586 May

### 41996 2

Other LetterfromJon

## HEdwards Assistant Attorney General 

### 12990 supporting a statutory interpretation Outside ofstatuteor regulation NA 5

Not yetdetermined Enacted oramended bytheFirstRegular Sessionof the 119th Legislature

### non emergency provisions