eOPPo

§ 2111Pa

11 PACAO

February 20 1985

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

J F KENNEDY 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 your standards

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 your water quality man

agement programs and bring your Water Quality Standards into full

conformance with federal regulations I have attached detailed

staff comments for your consideration

and my staff 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

Attachment

EPA000388
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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 water quality

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 must explain how cost effective and reasonable best

management practices for nonpointsource 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

EPA000389
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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 coliform criteria

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 A mixing zone policy considering the factors in the EPA Water

Quality Standards Pandbook Chapter 2 should be developed

EPA000390
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Ankij

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

44t ectono REGION I

J F KENNEDY 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 65 mgL is

not protected at this higher level by Maines policy This is

because the 65 mgL 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

EPA000391
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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

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EPA000392
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Kenneth C Young Commissioner

Department of Environmental Protection

State House Station 417

r Augusta Maine 04333

UNITED STATES ENVIRONMENTAL

PROTEr REGION I

J F KENNEDY 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 CFR S13112a1 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

a12 in 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 provide

EPA000393
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that in allowing lower water quality in such circumstances the state must

assure water 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 CFR S13112a2 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 CFR S13112a1 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 fros 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

EPA000394
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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 for the full protection of Class C standards

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 CFR 513110g the State must first conduct a use attainability

analysis UAA in accordance with 40 CFR S13110j2 A UAA is

lefined in 40 CFR 51313g as a structured scientific assessment of

_

the factors affecting the physical chemical biological and economic

actors described in 40 CFR 513110g 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

EPA000395
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If 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 establish waterquality

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

EPA000396
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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 WH585

EPA000397
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UNITED STATE$ ENVIRONMENTAL PROTECTION AGENOY

REGION

J F KENNEDY 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 my letter of July 16 1986 the Environmental

Protection Agency EPA recently received a copy of An Act to

Clarify the 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 for Certain 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 1thermally stratify

2exceed

fnlot have any

30

upstream

acres in

direct

surface

discharges

area and

except

3

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

EPA000398
Letter to Commissioner Young

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 Class AA 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 Class GP A

under Section 363C would remove the freeflowing 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 by reclassifying 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 ormally approved by EPA

Sect12nAD ions cannotbe grinntedbLy fhe StatA to

hOroelectric projects

D The three findings that the Commissioner must make in order to

deem the waters of new or proposed hydroelectric impoundment

Class GPA seem to be inconsistent with the designated uses

and criteria protective of Class GP A waters in Section 465A

of An Act to Amend the Classification System for Maines Waters

and Change the Classification System of 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 water while 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 or deny

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

EPA000399
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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 EPA

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETTS 02203

April 24 1987

Robert A Moore

Legal Counsel to the

Governor of Maine

State of Maine

Office of the Governor

Augusta Maine 04333

Re Maine Water Quality Standards

Dear Mr Moore

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Thank you for your 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 A which 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 impoundment would be unable to meet the

dissolved oxygen criterion for the existing classification see

August 20 1986 letter

J

EPA000401
Letter 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 mAtriott

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May 21 1987

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CtION

UNITED STATES ENVIRONMENTAL PROTECTIONLAGTSY A a 28 AB MA

REGION I

J F KENNEDY FEDERAL BUILDING BOSTON MASSACHUSETth iiesliSc12511

V E

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

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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 Act LD

2283 and An Act to Clarify the Application of Water Ouality

Standards to Hydroelectric Projects the Hydroelectric Project Act LD 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 to

EPA000403
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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 GPA

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

or Tonia 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 Governor

EPA000404
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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

EPA000405
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 CFR

EPA000406
Attachment 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 on thewater 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 Commissions finding 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

EPA000407
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 Commission makes its

determination on permit issuance the Commissioner or Director

has five working days within which to issue or deny Section 401

certification According to the DEP the issuance or denial of

such certification by the Commissioner or Director is purely a

ministerial function and is based on the finding of whether

or not water quality standards will be violated already made

by the Board or Commission pursuant 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 days

EPA000408
I

II

rt1

ITI

1

1

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

Commissions water 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

EPA000409
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 well established 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

expressly provide 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 after making 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 interpretation

EPA000410
Attachment 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 water quality

to be below the standard of the appropriate classification

EPA000411
Attachment 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

similar to those in the national criteria document and that the

instantaneous minimum would be easier to monitor enforce and

model Nevertheless EPA believes that chronic criteria for

EPA000412
7

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 to water 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

EPA000413
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 study however has been delayed several times

In addition no study is being performed or planned for the

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

EPA000414
J

TED 54

01

k111101a

pRoie

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

J F KENNEDY 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 wellestablished 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 2107

EPA000415
1

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 EA Headquarters

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 Maine

EPA000416
9

E1 S T4

re

a+

4 ft

i11017

141 PRo0

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

JF KENNEDY 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 GPA

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 EPA proposed 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 regulations which implement certain

provisions of the Maine Water Quality Standards 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

EPA000417
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 in the 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 must be 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

Quality Standards

The proposectliaiDn also includes language which is

incoriSTETZFEwith the federal antidegradation policy

Specifically the revision states that factual determinations of

what constitutes an existing instream water use on a particular

water body and the extent of allowable 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 particular water 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 would be 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 simply because the shellfish are not currently

being harvested See EPAs Qutions and Answers on

Antidegradation dated Aug ta485 Therefore although EPA

would not disapprove Section 464F1as proposed we do

recommend that Maine add language to either the statute or the

EPA000418
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

regarding the States antidegradation policy Under the federal

antidegradation policy any proposed discharge which would

cause a lowering of water 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

determining whether 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 primarily to human uses 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 or testimony which document the species of fish

in a particular waterbody or habitat suitability information

confirming that certain aquatic uses could occur in a waterbody

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 any water 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 quality degradation 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

significant

EPA000419
17

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 particular water body etc

Finally the 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 from the 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 by the 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 or submit a formal Attorney Generals Statement

which indicates that it is being read consistently with federal

requirements

EPA000420
5

Please feel free to call Eric Hall of my staff or Tonia D

Bandrowicz or Jonathan Kaledin of the Office of Regional Counsel

if you have any questions 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 RRC2203

EPA000421
7

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 1

JF KENNEDY 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 of your 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 not valid and a

statutory change is necessary it is our understanding 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 I

EPA000422
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION

JF KENNEDY 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 of water`tkses

The specific documents reviewed are

Regulations

Chapter 580 Procedures for sampling and analysis

Chapter 581 Assimilative capacity of streams and ponds

stream minimum flows zone

of great ponds

of passage and trophic state

Chapter 582 Temperature

Chapter 584 Numeric criteria Option 1

Chapter 585 Identification and designation of spawning

areas in Class B and C waters

Chapter 586 Discharge restrictions in Class A waters

1989 Legislation

Repeal of 38 MRSA §363C Automatic reclassification

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 T 0

011W0

PRINTED ON RECYCLED PAPER

EPA000423
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 Permit schedules of

compliance

Enactment of 38 MRSA §420 sub §2 IT A to G AdoptiOn

of numeric criteria Option 1 through legislation

Interpretation

A letter from the 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 ¶ C An 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 your classifications numeric criteria adop

tion antidegradation policy and proper interpretation 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

standards development and implementation We are prepared to offer

assistance in the drafting and review of companion policy and

guidance documents at your convenience If you have any questions

please call me or have your staff call Eric Hall 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 Legislature

EPA000424
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June 28 1999

UNTED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

JOHN F KENNEDY FEDERAL BUILDING

BOSTON MASSACHUSETTS 022030001

Dennis A Purington Acting Director

Bureau of Land Water Quality

INLE Dept ofEnvironmental Protection

State House Station 17

Augusta ME 043330017

Dear Mr Purington

OPTIONAL FORM Si 7DOJ

FAX TRANISMiTTAL

A11 g

11 a PI961

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NprUkcprocy

NPuAg1=1M6 ite6 D6e44 11te e2

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N S N 7s40 I 3 17 Tad OD I DI GeNERAL SERVICES A01493STRAZION

This letter is to acknowledge your June 21 1999 submittal of a complete and current effective

water quality standards WQS package for inclusion in the Clean Water Jict WQS docket for

Maine As you are aware the Water Quality Stamdards WQS docket is mecessary to support the

WQS program after EPA revises its WQS rule in response to the Alaska court Riling Alaska

Clean Water Alliance v Clark No C961762 Tuly 8 1997 In conjunction With the rule

making Process EPA will offer the public an opportunity to review the WQS docket We will

contact you if the public review or further review by EPA identifies any omissions or erroneous

inclusions that may need to be corrected

thank you for your assistanCe in creating the WQS docket Pleae contact me 6179181501 or

Bill Becicwith of my staff 6179181544 if you have any questions

Sincerely

Linda Murphy Director

Office of Ecosystem Protection

cc Fred eutner EPA SASD

Ronald Poltak NEIWPCC

Eniomet Address UM httpilwwwapecpv

Rocycis4Racy AN PrfcitdWfth Vagetabla01 841381 OmonR DCycled P epeir pnimurn 2 Postconsurma5

EPA000425
Water Quality Criteria Bibliography Maine

Bureau of Land and Water Quality

Maine Department of Environinental Protection

June 16 1999 CORRECTED COPY 63099

NameTitle Citation Date of last

amendment

Number

of Paves

Statutory Sections

Definitions 38 IvIRSA 361A July9 1998 2

Waiver or modification of protection and improvement

laws

38 MRSA 363D July 14 1994 1

Definitions 38 MRSA 410H Oct 9 1991 1

Program implementation 38 VERSA 410J June 30 1992 1

Waste discharge licenses 38 MRS A 413 July 9 1998 3

Conditions of licenses 38 MRSA 414A July 9 1998 5

Publicly owned treatment works 38 MRSA 414B July 9 1998 1

Color pollution control 38 MRSA 414C Sept 19 1997 2 Certain deposits and discharges prohibited 38 lvIRSA 417 July 14 1990 1

Log driving and storage 38 MRSA 418 July 9 1998 1

Protection of the lower Penobscot River 38 MRSA 418A July 13 1982 1

Prohibition on the use of tributyltin as an antifouling

agent

38 MRSA 419A March 29 1993 2

Certain deposits and discharges prohibited 38 MRSA 420 June 11 1999 5

Discharge of waste from watercraft 38 MRSA 423 June 30 1989 1

Discharge of waste from motor vehicles 38 MRSA 423A Sept 29 1987 1

Enforcement 38 MRSA 451 July 9 1998 1

Time schedule variances 38 MRSA 451A Oct 13 1993 3

Classification of Maine waters 38 MRSA 464 July 9 1998 11

Standards for classification of fresh surface waters 38 MRSA 465 July 14 1990 2

Standards for classification of lakes and ponds 38 MRSA 465A July 14 1990 1

Standards for classification estuarine and marine waters 38 MRSA 465B July 14 1990 2

Definitions 38 MRSA 466 July 14 1990 2

Classification of major river basins 38 MRSA 467 July 14 1994

1

15

Classification of minor drainages 38 MRS A 468 June 30 1992

I

4

Classification of marine waters 38 MRSA 469 June 24 1991 7

Approval criteria 38 MRSA 636 Sept 29 1995 2

As amended by An Act to Amend the Water Quality

Laws to Establish a New Standard for Mercury

Discharges

PI 1999 ch 500 June 11 1999 5

Amended by An Act to Amend Certain Laws

Administered by the Department of Environmental

Protection Bureau of Land and Water Quality

PL 1999 ch 243 September 18

1999

9

Amended by An Act to Reclassify Certain Waters of

the State

PL 1999 ch 277 September 18

1999

15

Rule Chapters

Administrative Regulations for Hydropowei Projects 06096 CMR 450

and 04061 CivLR

11

May 4 1996 13

Regulations Concerning the Use of Aguatic Pesticides 06096 CMR 514 May 4 1996 i

Environmental Regulation Surface Waters Toxics

Control Program

06096 5305 Augr 13 1997 13

Discontinuance of Wastewater Treatment Lagoons 06096 CMR 550 May 4 1996

A

1

EPA000426
r

=1

i

Stormwater and Combined Sewer Overflows 06096 OAR 570 May 4 1996 1

Snow Dumps Exemption from Waste Discharte License 06096 CMR 573 May 4 1996 2

Relating to Water Quality Evaluations 06096 CMR 581 4 1996 2 Regulations

Regulations Relating to Temperature 06096 CMR 582

May

May 4 1996 1

Identification of Fish Spawning Areas and Designation of

Salmonid Spawning Areas

06096 CMR 585

r

May 4 1996 2

Rules Pertainingto Class A Waters 06096 CMR 586 May 4 1996 2

Other

Letter from Jon H Edwards Assistant Attorney General

12990 supporting a statutory interpretation

Outside of statute or

regulation

NA 5

Not yet determined Enacted or amended by the First Regular Session of the 119th Legislature non

emergency provisions

EPA000427