STA T E O F MAI NE '* 

• 

D E P A RTM E N T OF E N VIRONM E N T A L P R OTECT I ON 

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. .. 

PAUl R LEPAGE 

GOVERNOR 

Ms. Sarah Furtak 

U.S. Environmental Protection Agency 

November 3, 2014 

Office of Wetlands, Oceans, and Watersheds 

Assessment and Watershed Protection Division 

Watershed Branch 

William Jefferson Clinton Federal Building West, Room 7330-A 

130 l Constitution A venue, NW 

Washington, DC 20004 

Via email: furtak.sarah@epa.gov 

PATRICIA W. AHO 

COMMISSIONER 

Re: Maine Department of Environmental Protection comments on EPA's planned proposed 

rulemaking to address the process for tribes to obtain treatment in a similar manner as states 

for the Clean Water Act Impaired Water Listing and Total Maximum Daily Load program 

Dear Ms. Furtak: 

Please accept these pre-proposal comments on behalf of the Maine Department of 

Environmental Protection ("DEP"), in response to the planned rulemaking by the United States 

Environmental Protection Agency ("EPA"), which will address the process for tribes to obtain 

treatment in a manner similar as states ("TAS") under Section 518 of the Clean Water Act, 33 

U.S.C. §§ 1251 , et seq. ("CWA") for purposes ofthe CWA impaired water listing and total 

maximum daily load ("TMDL") program. 

For reasons which were described in the comment letter from the Maine Attorney General's 

office on October 29, 2014,

1 the proposed rules must not apply to tribes located within the state 

of Maine, and therefore we request that EPA explicitly affirm that the state ofMaine has 

jurisdiction over environmental matters. The State asks that EPA confirm that its new planned 

rulemaking will not apply in Maine, and that no Maine tribes are or will be eligible forT AS 

status for any purpose under Section 518 of the CW A and any corresponding regulations. This 

clarification would be consistent with the Maine Implementing Act of the Maine Indian Land 

Claims Settlement Act, as confirmed by EPA's determination in its memorandum entitled: 

1 We support the statements made by the Maine Attorney General's office on October 29, 20 14, and incorporate 

those comments into this letter. 

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Letter to Ms. Sarah Furtak 

November 3, 2014 

Page 2 of3 

Penobscot 's Treatment as a Stale Under CWA, § 518(e), at 7-8 (July 20, 1993) and by Maine v. 

Johnson, 498 F.3d 37 (1st Cir. 2007). 

In reliance on the long-standing and well-established legal conclusion that the state of Maine 

has regulatory authority over its delegated programs under the CW A, DEP has taken the severity 

of pollution and all uses (including tribal uses, if relevant to a waterbody) into consideration in 

the development of all §303(d) listings, TMDL assessments and other watershed management 

activities. In the past 16 years, EPA has approved one Northeast Regional TMDL, and 

additional TMDL evaluations accounting for approximately 280 streams, stream segments and 

other waterbodies in the state of Maine. Additionally, DEP has overseen watershed 

improvement plans, watershed management plans and undertaken enforcement actions for many 

other waterbodies that may not be covered by the listed TMDLs. Future regulatory actions that 

may impact any of the above-described waterbodies must take into consideration the impairment 

assessments that have been made. 

D EP takes a watershed-based approach in the evaluation and regulation of waters of the state. 

Given that land-based activities have the potential to impact areas that are more geographically 

complex than a discrete waterbody, utilizing a watershed-based approach to regulation ensures 

that impacts to those land-based activities are appropriately assessed. Tribal lands may not 

necessarily follow the geographic boundaries of a watershed. Therefore, if as a result of this 

proposed rulemaking, EPA does not recognize DEP's unique regulatory authority, and instead 

authorizes tribes in Maine to be treated as having status similar to states, the resulting regulatory 

system would present two regulatory authorities with the same or overlapping jurisdiction, 

implementing the same laws under the CW A in potentially different ways. 

The watershed-based regulatory approach used by DEP takes all uses within the watershed 

into consideration, including tribal uses. Conversely, if tribes in Maine were to be treated as 

regulatory authorities by EPA, a tribal evaluation may consider uses only on tribal lands, and not 

on a larger watershed basis. This is likely to result in inconsistent TMDL and impairment 

assessments, and ultimately in inconsistent or conflicting regulatory approaches. 

Beyond going against established federal law, the regulatory uncertainty that would result 

from treating tribes in Maine in a manner similar to states would be significant, and would 

potentially slow progress toward watershed improvement in numerous areas of the state. DEP 

has conducted extensive evaluations, assessments and regulation statewide in reliance on the 

determination that it is the sole regulatory authority to implement the CW A sections that are the 

subject of the proposed rulemaking. DEP's objective is to improve the water quality of all listed 

impaired waterbodies, taking into account all uses within a watershed. Application of the 

proposed rulemaking to the state of Maine would likely slow progress toward that goal, and 

would not increase or improve protection of the waters used by tribes in Maine. 

Given the legal considerations described by the Maine Attorney General's office, as well as 

the practical considerations outlined in this letter, the State asks that EPA confirm that its new 
Letter to Ms. Sarah Furtak 

November 3, 2014 

Page 3 of3 

planned rulemaking will not apply in Maine, and that no Maine tribes are or will be eligible for 

T AS status for any purpose under Section 518 of the CW A and any corresponding regulations. 

Thank you for providing us the opportunity to provide to you pre-proposal comments. If you 

have any questions, please contact me at (207) 287-7830. 

cc: Patricia Aho, Commissioner, DEP 

Michael Kuhns, Director, BLWQ, DEP 

Scott Boak, Assistant Attorney General 

Sincerely, 

~~P~-

Heather L. Parent 

Acting Deputy Commissioner