UNITED STATES ENVIRONMENTAL PROTECTION AC4ENCY

**RE~ION** I

February 2, 2015 Patricia W. Aho, Commissioner S POST OFFICE SQUARE SUITE :1.00 BOSTON, MASSACHUSE1TS 02.:J..Oq

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Maine Department of Environmental Protection 17 State House Station Augusta, ME 04333-0017 Re: Review and Decis ion on Water Quality Standards Revisions Dear Commissioner Aho: By letter of January 14, 20 13, the Maine Department ofEnvironmental Protection ("DEP") submitted revisions of the State's surface water quality standards ("WQS") to Region 1 of the United States Environmental Protection Agency ("EPA" or "Region") for review and approval or disapproval. The revisions were adopted by the DEP on July 13 , 2012. By letter to EPA dated January 9, 2013, Maine's Assistant Attorney General in the Natural Resources Division certified the revisions as having been duly adopted pursuant to state law. By letter of May 16, 2013, EPA approved the revision to the arsenic criteria to protect human health in state waters outside of Indian territories and lands, but did not act on the ar senic criteria for waters in Indian territories and lands. In the approval letter EPA also indicated that the additional revisions submitted by DEP were still under review. I commend DEP for the 2012 adoption of revisions to its water quality standards that strengt hen the ability to protect Maine's waters including the adoption of new aquat ic life criteria for acrolein, diazinon, and nonylphenol. DEP submitted additional revisions of the State's s urface water quality standards to the Region for review and approval or disapproval by letter of February 27, 20 14. The revisions were certified on February 26, 2014, by Maine' s As sistant Attorney General in the Natural Resources Division as having been duly adopted pursuant to state law. Before now, EPA had not acted on any of these revisions for any waters in Maine. ln both of the above-referenced submission letters, DEP requested that EPA approve Maine's WQS in Indian territories and lands ("Indian lands"). As discussed in the attached Decision Support Document (Attachment A), EPA has concluded that the State ofMaine has the authority to adopt WQS that are applicable to waters in Indian lands. Accordingly, EPA is herein responding to the remaining unapproved elements of the 20 13 and 2014 WQS revisions for waters throughout the State, including in Indian lands.In addition to the 2013 and 2014 submissions, DEP submitted numerous WQS revisions to EPA from August 26, 2003, through July 8, 2011, for review and approval or disapproval. 1 In EPA's letters approving WQS revisions contained in those submissions, EPA noted that it was not taking action on t he WQS with respect to any waters in Indian lands
. In light ofEPA's determination that the State of Maine has the authority to adopt WQS for waters in Indian lands, EPA is herein responding to those WQS revisions for those waters. 2 Many of the WQS revisions u nder review for approval or disapproval for waters in Indian lands are water quality criteria, and the Clean Water Act ("CW A") requires that criteria be protective ofdesignated uses . As discussed in the Decision Support Document, EPA has not yet approved any WQS, including designated uses, for waters in Indian lands. Therefore, in order to evaluate whether the submitted criteria are protective ofdesignated uses, EPA must first approve designated uses for these waters
. Accordingly, EPA is herein approving Maine's surface water classifications and corresponding designated uses for waters in Indian lands? Because EPA has not previously approved these WQS for waters in Indian lands, EPA considers them to be "new" WQS as applied to such waters. EPA is also approving 38 M.R.S. § 6207(4) and (9) (a provision of the Maine Implementing Act, or MIA, which settled the Maine Indian land claims as a matter of Maine law), as an explicit designated use for certain waters in Indian lands. The following paragraphs state EPA's decisions on Maine's new and revised WQS described above
. The decisions include approvals and disapprovals, and! the detailed explanations for the decisions are provided in Attachment A. EPA has also identified several provisions that EPA is not taking action on, prima rily because DEP is planning to update them soon , and some provisions that EPA is not taking action on because we have concluded that they are not WQS requiring EPA review and approval; these are also expla ined in Attachment A
. EPA is not responding to new or revised Maine WQS other than those explicitly identified in this letter. Approvals Pursuant to Section 303( c)(3) of the Clean Water Act and 40 C.P.R. part 131, I hereby approve the following new or revised WQS: Classifications and Designated Uses For
.all waters in Indian lands:

• Maine's standards for classification and corresponding designated uses in 38 M.R.S. § 465(l.A), (2
.A), (3.A) and (4.A)(for fresh waters);§ 465-A(l
.A) (for great ponds and natural lakes and ponds less than 10 acres in size, and impoundments of rivers that are

1 A list of these submissions is provided in Section 4.10 of Attachment A. 2 Maine's July 8, 2011 submission was for EPA's review of a reclassification of the Kennebec River
. Although EPA's July 20, 2011 letter approving the reclassification included the caveat about not acting with respect to waters in Indian lands, the Kennebec River is nowhere near Indian lands. Therefore, EPA is taking no further action today with respect to that submission
. 3 EPA intends to review and approve or disapprove all remaining Maine WQS that could apply to waters in Indian lands, such as dissolved oxygen criteria, definitions, antidegradation provisions, etc., as soon as possible. 2defined as great ponds pursuant to 38 M.R.S. § 480-B), including the definition of "great ponds" in 38 M.R.S. § 480-B(5); and § 465-B(l.A), (2.A) and (3.A) (for estuarine and marine waters); • The classification of specific water s in 38 M.R.S. § 467 (Classification of major river basins) and§ 468 (Classification of minor drainages); and 

### § 469 (Classification of estuarine and marine waters); • The addition of agriculture as a designated use to freshwaters (Classes AA, A, B , C, and GPA), submitted to EPA on August 26, 2003; and • The reclassifications, submitted to EPA on December 7, 2009, of Otter Creek, a tributary of Seboeis Stream, Alder Stream, and South Branch Stream, a tributary to the Mattarniscontis Stream, from Class B to Class A; and of Grand Falls Flowage between Route l(Princeton and Indian Township) and Black Cat Island from Class B to Class GPA. Criteria For waters throughout the State ofMaine, including in Indian lands, the following water quality criteria provisions contained in DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, Appendix A, submitted to EPA on January 14, 2013: • Freshwater and marine aquatic life criteria for diazinon and nonylphenol; • Freshwater aquatic life criteria for acrolein; • Corrections of Federal Register Cites/Sources in Tables I and II of Appendix A; clarifications in footnote II in Table I, and footnotes A and C and Additional Note 4 in Table II; and • Footnote aME in Table I ofAppendix A 

### except for the first sentence related to arsenic, which EPA is taking no action on. For all waters in Maine 

### except for waters in Indian lands, the following water quality criteria contained in DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, Appendix A, submitted to EPA on January 14, 2013: • Human health criteria for the consumption of water plus organisms for acrolein; and • Human health criteria for the consumption of organisms only for acrolein and phenol. For all waters in Indian lands, the following water quality criteria provisions: • The provision regarding dissolved oxygen measurement requirements in riverine impoundments contained in 38 M.R.S. § 464(13), submitted to EPA on August 26, 2003; • Aquatic life criteria provisions in 38 M.R.S. § 420(1-B.A.(l)),(l-B.C),(l-B.D), and (1- B.E), submitted to EPA on May 14, 2004, 

### except for revisions made at in 38 M.R.S. § 420(1-B.C.(l)) and (l-B.C.(2)) that describe the state regulatory procedures for establishing site

-specific bioaccumulation factors and which are not WQS (see below); • The Classification Attainment Evaluation Using Biological Criteria for River s and Streams, contained in DEP Rule Chapter 579, submitted to EPA o n May 14, 2004; • All provisions of DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, including Appendix A, submitted to EPA on January II, 2006, 

### except for: • All human health criteria in Appendix A, which EPA is disapproving (see

**below)~**
3• the ammonia aquatic life criteria in Appendix A and 7.C, on which EPA is taking no action at this time (see below); and • provisions which are not WQS (see below); • The 30-day average dissolved oxygen criterion of 6
.5 ppm for certain Class C waters, contained in 38 M.R.S. 

### § 465(4.B), submitted to EPA on January 11, 2006; • The instream design flows for the application of water quality criteria for aquatic life and human health protection, which are consistent with EPA's current guidance (IQ 10 low flow for acute aquatic life criteria, 7Q1 0 low flow for chronic aquatic life criteria, and harmonic mean flow for human health criteria), contained in DEP Rule Chapter 530, § 4.B, submitted to EPA on January 11, 2006; and • Revisions at 38 M.R.S. § 465(3.C.(2)) and§ 465-B(2.C) enacted in Chapter 291, L.D. 1274, "An Act to Allow the Discharge of Aquatic Pesticides Approved by the Department ofEnvironmental Protection for the Control ofMosquito-borne Diseases in the Interest ofPublic Health and Safety,"), submitted to EPA on April 8, 2008. General For all waters in Indian lands: • The provisions in 38 M.R.S. § 464(3.B) that ensure that a hearing will be held at least once every three years for the purpose of reviewing Maine's water quality standards, and revising them as appropriate, consistent with 40 C
.F.R. § 131.20, submitted to EPA for review on May 14, 2004. 

### Disapprovals Pursuant to Section 303(c)(3) of the CWA and 40 C.F.R. part 131, I hereby disapprove the following new and revised water quality standards: For all waters in Indian lands : • The mercury human health criteria revision at 38 M.R.S. § 420(1-B.A

.(2)), submitted to EPA May 14, 2004; • All human health criteria in DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, Appendix A, submitted to EPA on January I l, 2006; and • Human health criteria revisions related to arsenic, acrolein, and phenol in DEP Rule Chapter 584, Surface Water Quality Criteria for Toxic Pollutants, Appendix A, and the last sentence in Ch
. 584, § 5.C related to t he fish consumption rate, submitted to EPA on January 14, 2013. 

### Revisions for Which EPA is Not Making a Decision at This Time EPA is not deciding to approve or disapprove the following new or revised WQS at this time: For all waters in Indian lands: • The ammonia criteria for protection ofaquatic life in DEP Rule Chapter 584, Appendix A, submitted to EPA on January 11, 2006;

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### • The recr eational (bacteria) numeric criteria for the protection of primary contact recreation for Class Band C waters in 38 M.R.S. § 

### 465(3.B) and (4.B), submitted to EPA on January 1 1, 2006; • The revisions made in L.D. 1450 at 38 M.R.S. § 

### 465-B(2.B) and (3.B), which extended the applicability of the bacteria cr iteria for Class SB and Class SC waters to include bacteria of domestic animal origin, submitted to EPA on January 

### 11, 2006; and • The first sentence of Footnote aME in Table 

### I of Appendix A and the last sentence in Ch. 584, § 

### 4 (the cancer risk level to be used to calculate human health criteria for inorganic arsenic). For all waters throughout Maine, including in Indian lands: • The revision made in L.D
. 1304 at 38 M.R.S. § 

### 464(4.A(3)(a)), and§ 465((3
.C.(1)) and (4.C), related to certain pesticide discharges, submitted to EPA on January 11, 2006; • The revisions made in L.D. 1304 at38 M.R.S. 

### § 465(3.B) and (4.B), which extended the applicability of the bacteria criteria for C lass B and Class C waters to include bacteria ofdomestic animal or igin, subm itted to EPA on January 11, 2006; • The revision made in L.D. 1778 at 38 M.R.S. § 

### 465

-A(l.B), which extended the applicability of the bacteria criteria for Class GPA waters to include bacteria of domestic animal origin, submitted to EPA on April 8, 2008; • The phenol criteria for the protection of human health consumption ofwater plus organisms, in DEP Rule Chapter 584, Appendix A, submitted to EPA on January 14, 2013; and • The revision made in L. D. 1430 at 38 M.R.S. § 

### 464(4.A(3)(b)), related to certain pesticide discharges to tributaries of GPA waters, submitted to EPA on February 27, 2014. For waters outside of waters in Indian lands: • The reclassification of a 0.3 mile segment of Long Creek that flows through Westbrook from Class B to Class C, submitted to EPA on December 7, 2009. 

### Revisions That are not WQS and do Not Require an EPA Decision I have concl uded that the following revisions, which relate to exemptions from discharge prohibit ions, testing and licensing provisions related to discharges, updates of federal statutory and regulatory references, and procedural provisions that establish processes for adopting alternative cr iteria and establishing site-specific bioaccumulation factors, are not water quality standards requiring EPA review and approval or disapproval:

• Revisions made at 38 M.R.S. § 

### 465(l.C.(2)) and (2
.C.(2)), enacted as Chapter 574, L.D. 1 833 "An 

### Act to Amend Water Quality Laws to Aid in Wild Atlant ic Sa lmon Restoration," submitted to EPA on May 14, 2004; • Revisions made at 38 M.R.S. § 

### 420(1-B.B) related to discharger compliance, submitt ed to EPA on May 14, 2004; • Revisions made at in 38 M.R.S. § 

### 420( 1-B.C.(l )) and ( l-B.C.(2)) that describe the sta te regulatory procedures for establishing site-specific bioaccumulation factors, submitted to EPA on May 14, 2004;


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### • Revisions made at 38 M.R.S. § 

### 361-A(l-J) and (1-K), enacted as Chapter 330, L.D. 1588, Sections 7 and 8, which updated the definitions of "Code OfFederal Regulations" and "Fede ral Water Pollution Control Act" to include their amendments through January 1, 2005, submitted to EPA on January 11, 2006; • Revisions made at 38 M.R.S. 

### § 464(4.A.(l)(c) and (d));§ 465(l.C.(3)) and (2.C.(3)); and§ 465-A(l.C), enacted as Chapter 182, L.D. 1304 "An Act Concerning Invasive Speci es and Water Quality Standards," submitted to EPA on January 11 , 2006; • Revi sions made at DEP Rule Chapter 584 

### § 3, submitted to EPA on January 11, 2006, regarding adoption procedures for alternative statewide and site specific criteria. This includes: the requirement in Chapter 584 § 3(A.(2)) that " stat ewide criteria mu st be initiated in accordance with the petition for rulemak.ing provision s of the State Administrat ive Procedures Act, 5 M.R.S.A., Section 8055"; the provision in the first paragraph of Chapter 584 § 3(B) that site specific criteria "must only be adopted by the Board as part of a waste discharge license proceeding pursuant to 38 MRSA Sections 413,4 14 and

**414-A"~** 

### and the first two sentences ofthe second paragraph of Chapter 584 § 

### 3(B); • Revisions made at 38 M.R.S. § 

### 464(4.A.(l)(e)); 

### § 465(1.C.(4)) and (2.C.(4)); § 465- A(l.C.(4)); and§ 465-B(l.C.(2)), enacted as Chapter 291, L.D. 1274, "An 

### Act to Allow the Discharge of Aquatic Pesticides Approved by the Department of Environmental Prot ection for the Control of Mosquito-borne Diseases in the Interest ofPublic Health and Safety," submitted to EPA on AprilS , 2008; • Revisions made at 38 M.R.S. § 

### 420(1-B)(F) and§ 464(4)(1) and (K), related to testing and licensing requirements for waste discharges that were included in LD 515, submitted to EPA on January 14, 2013; and • Revisions made at 38 M.R.S. § 

### 464(4.A.(l)(f)); 

### § 465(1.C.(5)) and (2.C.(5)); 

### § 465-A (l.C.(5)); and§ 465-B(l.C.(4)), enacted as Chapter 193, L.D. 1430, "An 

### Act to Clarify the Permitted Use ofAquatic Pesticides," submitted to EPA on February 27, 2014. EPA looks forward to continued cooperation with Maine in the deve lopment, review and approval ofwater quality standards pursuant to our responsibilities under the Clean Water Act. EPA would like to begin discussions with DEP as soon as possible about the criteria that EPA is disapproving and those about which EPA is making no decision. EPA will contact you next week to schedule such discussions. In 

### the meantime, please contact Ellen Weitzler (a t weitzler.ellen@epa.gov or 617

-918-1582) if 

### you have any questions.



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**4.'c~n~** Regional Administrator

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