S TA 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 OTE C T I ON l


# . ..
PA U l 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 Avenue , NW Washington, DC 20004 Via email: furtak. sarah @ epa. gov P ATRI CI A W

. AH O CO MM ISSI ONER

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 behalfof the Maine Department of Environmental Protection (" DEP " ) , in response to the planned rulemaking by the United States Envir onmental 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 li sting 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 forTAS status for any purpose under Section 518 ofthe CW A and any corresponding regulations. This clarification would be consistent with the Maine Implementing Act ofthe Maine Indian Land Claims Settlement Act, as confirmed by EPA ' s determination in its memorandum entitled:

1 We support the s tatements made by the Maine Attorney General 's o ffi ce on October 29, 20 14 , and incorporate those comments into this letter. \lt;L S 1\ II

**\~(;()**

**(** PU R II \ ' ..! > P RI.SI,)I'I I:> I I I ' S I \ II II C ll S I S I \ II();-..: 1 116 II 0(; \ :\ R() \ I>. SI II I· 6 \12C\:\((ll(()\[) 12\51 1 '-I R \1 DRI\1

**~1':)\\** \\ 1' \RI': \1 (,['I\, \1 \INI 114\>i

**IIIII~ I\~(;()!(,**  \ t \1'-1 04 4 01 I'ClR II \ ' ..! > \1 \ I 'l l !14 1 !1\ I'IU SI,)L I I SI I, \I \1'- 1 0 4 '(>9 (2117)2H7 7 6HH I \ '

**7)2H~** 7!126 ( 2117)941457111 \X ( 2117)'>414581 ( 20" ) R22 6\00 I\'

**20~**

**)** H22 630\ (20") "6 4 IH'" I \ X (20" ) '60 31 4 \ ueb s nc \\\\\\

**numt~.** JtpLetter 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 ofpollution and all uses (including tribal uses, ifrelevant 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 ofMaine. 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 ofthe above-described waterbodies must take into consideration the impairment assessments that have been made. DEP takes a watershed-based approach in the evaluation and regulation of waters ofthe 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 ofthis 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 overlappingjurisdiction, implementing the same laws under the CWA in potentially different ways. The watershed-based regulatory approach used by DEP takes all uses within the watershed into consideration, including tribal uses. Conversely, iftribes 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 ofthe 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 ofthe proposed rulemaking. DEP 's objective is to improve the water quality ofall listed impaired waterbodies, taking into account all uses within a watershed. Application ofthe proposed rulemaking to the state ofMaine would likely slow progress toward that goal, and would not increase or improve protection ofthe 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 newLetter 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 TAS status for any purpose under Section 518 ofthe CW A and any corresponding regulations. Thank you for providing us the opportunity to provide to you pre-proposal comments. Ifyou have any questions, please contact me at (207) 287-7830

.

cc: Patricia Aho, Commissioner, DEP Michael Kuhn s, Director, BLWQ, DEP Scott Boak, Assistant Attorney General Sincerely,



# ~~P~- Heather L. Parent Acting Deputy Commissioner