COMMENTS OFMAINE ATTORNEY GENERAL JANET MILLS IN RESPONSE TO EPA'S PROPOSED RULEMAKING TO ADDRESS THEPROCESS FOR TRIBES TO

BETREATED AS STATES FORTHE CLEAN WATER ACT IMPAIRED WATER LISTING AND TOTAL MAXIMUM DAILY LOAD PROGRAM October 29, 2014 Maine Attomey General Janet T. Mills hereby submits the following pre-proposal comments 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 ofthe Clean Water Act, 33 U.S.C. 

### §§ 1251, 

### etseq. ("CW A") for purposes ofthe CW A impaired water listing and total maximum daily load ("TMDL") program. Under EPA's current interpretation ofSection 518 ofthe CWA, 33 U.S.C. 

### § 1377(e), a tribe must demonstrate its regulatory authority before it can obtain TAS status and jurisdiction for purposes ofadministering

### any EPA-delegated regulatory programs underthe CWA. 

### See, e.g., 40 C.F.R. 

### § 131.8. This current eligibility requirement is critical in Maine because ofthe unique tribal-State relationship established by Congress and the Maine Legislature under the Maine Implementing Act, 30 M.R.S.A. 

### §§ 6201 

### etseq. ("MIA") and the Maine Indian Land Claims Settlement Act, 25 U.S.C. 

### §§ 1721 

### etseq. ("MICSA") (collectively the "Settlement Acts"). Under the Settlement Acts, Maine has primary environmental regulatory authority and jurisdictionthroughoutthe State,·includingwithin Indian territories. This was confirmed by the First Circuit Court ofAppeals inMaine v. Johnson, 498 F.3d 37 (l51 Cir. 2007). At this time it is unclearwhether EPA, as part ofits planned rulemaking with respect to the tribal TAS process for purposes ofthe CWA impaired water list and TMDLprogram, intends for such a rule to apply in Maine. 

### Itis also unclear whether, for purposes ofthe newplanned rule, EPA intends to retain the current TAS eligibility requirement that tribes demonstrate their regulatory authority over tribal lands, or replace that requirementwith a presumption thatCongress has delegated the necessary regulatory authority to all tribes (including tribes in Maine) in a manner similar to EPA's separate proposed reinterpretation ofits general approach to tribal jurisdictionto administer CW A programs under Section 518. In any event, any interpretation of Section 518 that makes the tribal TAS process applicable to Maine's tribes orthat includes a presumption that Congress has delegated any environmental regulatory authority to Maine's tribes, whether by virtue ofEPA's newplanned rulemaking orits proposed reinterpretation ofits general approach under Section 518, is unlawful and contrary to the Settlement Acts and Maine

v. Johnson. Under the Settlement Acts, the State ofMaine, rather than Maine's tribes, has the

jurisdiction and authority to administer regulatory programs under the CW A The CW A instituted "acomprehensive program for controlling and abating water pollution." Train v. Cityof New York, 420 U.S. 35, 37 (1975). In establishing this regulatory framework, Congress was careful to "recognize, preserve, and protect the primary responsibilities and rights ofStates to prevent, reduce, and eliminate pollution." 33 U.S.C. 

### § 125l(b). It is now well-established that the State ofMaine has environmental regulatory authority andjurisdictionover all waters in the State, including any waters inornear tribal territories. The 1980 Maine Indian Settlement Acts "provided that 'withvery limited exceptions,' [the Tribe] would be 'subjectto' Maine law

...." Johnson, 498 F.3d at 42. One of the cornerstones ofMIAestablishes: Except as otherwise provided in this Act, all Indians, Indian nations, and tribes and bands oflndians in the State and any lands or other natural resources owned by them, held in trust for them by the United States orby any other person or entity shall be subject to the laws ofthe State and to the civil and criminal jurisdiction ofthe courts ofthe State to the same extent as any other person or lands or othernatural resources therein.

230 M.R.S.A. 

### § 6204. The then-Interior Secretary stated to Congress "thatthe Settlement Acts

were 'intended to effectuate the broad assumption of jurisdiction over Indian land by the State of Maine.' H.R. Rep. 96-1353 at 28, reprinted in 1980 U.S.C.C.A.N. 3786,3803-3804 (report of the Department ofthe Interior)." Johnson, 498 F.3d at 45 n.lO. Congress confirmed and approved thisjurisdictional principle for federal purposes in MICSA. 25 U.S.C. 

### § 1725. At the time the Settlement Acts were adopted, the Interior Department, largely responsible for relations with Indian tribes, told Congress that the southern tribes' lands would generally be subject to Maine law. H.R. Rep. 96-1353 at 28 (report of the Department ofthe Interior). The Senate Report, adopted by the House Report, declared that "State law, including but not limited to laws regulating land use or management, conservation and 

### environmentalprotection, are fully applicable as provided in [the proposed bill] and Section 6204 ofthe Maine Implementing Act." S. Rep. 96-957 at 27; H.R. Rep. 96-1353 at 20. Johnson ,498 F.3d at 43-44 (emphasis added). Thus, Congress understood that, under the Settlement Acts, Maine would retain full environmental regulatory authority over Maine Indian territories. Congress also understood that any special environmental rights that might be afforded to Indian tribes generally or byother laws would be inapplicable in Maine. The Senate Report stated that "forexample, although the federal Clean Air Act, 42 U.S.C. § 7474, accords special rights to Indian tribes and Indian lands, such rights will not apply in Maine because otherwise they would interfere with State air quality laws which will be applicable to the lands held by or for the benefit ofthe Maine Tribes. This would also be true ofpolice power laws on suchmatters as safety, public health, environmental regulation orland use." S. Rep. 96-957 at 31. 

### Id. at 44 n.7. Under the final terms ofthe 1980 federal Settlement Act (MICSA), Congress made clear that no existing federal laws that afforded Indian tribes any special rights or status, and that affected orpreempted Maine'scivil regulatoryjurisdiction (including Maine's environmental laws), would apply in Maine. 25 U.S.C. 

### § 1725(h). Congress also made clear that no

### future federal laws benefitting Indiantribes and affecting or preempting Maine's laws, such as the 1987 passage ofSection 518, would apply in Maine unless those laws were made specifically

3applicable to Maine. 25 U.S.C. § 1735(b). This Congressional understanding ofthe State ofMaine's environmentaljurisdiction and authority overMaine tribal territories was subsequently confirmed againby Congress in 1987 when it amended the CW A by, inter alia, adding Section 518, which generally set forth tribal rights and responsibilities and permitted tribes to apply for TAS status. 33 U.S.C.§ 1377(e). Generally, outside ofMaine, a tribe may now, as a result ofthe passage ofSection 518 in 1987, be granted TASjurisdiction to regulate waterresources within its borders in the same manner as states. Outside ofMaine, this might include the authority to administer EPA-approved tribal programs involving tribal water quality standards ("WQS") orto issueNational Pollution Discharge Elimination System ("NPDES") permits for discharges into such waters. 33 U.S.C. § 1377(e); 40 C.P.R. § 131.8; Cityof Albuquerque v. Browner, 97 F.3d 415, 418 (91 h Cir. 1996). However, because it would affect Maine's regulatoryjurisdiction and it was notmade explicitly applicable to Maine, Section 518 does not apply in Maine. 25 U.S.C. § 1735(b). Indeed, Congress considered this very issue: This section does not override the provisions ofthe Maine Indian Claims Settlement Act (25 U.S.C. § 1725). Consistent with subsection (h) ofthe Settlement Act, the tribes addressed by the SettlementAct are noteligible to be treatedasStates for regulatorypurposes ... Water Quality Act of 1987, Section-by-SectionAnalysis, reprintedin 1987 U.S.C.C.A.N. 5, 43 (emphasis added); see also Johnson, 498 F.3d at43 n.5. In addition, EPA itselfaddressed this issue in a 1993 guidance document, and reached the same conclusion: The criticaljurisdictional section ofthe Federal [Settlement] Act is§ 1725, whichratifies the State Act, limits the application offederal Indian lawin Maine ifit would affect Statelaw, and barsthe application offuture federal Indian lawinMaine unless the federal legislation specificallynotes its applicability inMaine

....

4Subsection 1725(h) is a criticalprovision ofthe Federal [Settlement] Act that explicitly and completely prohibits the applicationto the [Maine Indian tribes] ofany federal law that (I) gives special status to the [Maine Indian tribes) and (2) "affects or preempts" Maine's civil, criminal, orregulatory jurisdiction. 25 U.S.C.§ 1725(h). This provision specifically includes state environmental law and land use law

... This subsection would seemto invalidate federal laws that might give the [Maine Indian tribes] special status, including treatment as a state, for cettain environmental programs or purposes ifit would "affect orpreempt"the State's authority, including the State'sjurisdiction overenviromnental and land use matters. The final critical provision ofthe 1980 Federal Act forjurisdictional analysis relates to future legislation. Future federal legislation for the benefit oflndiansthat "would affect orpreempt" state laws (including the State Act) would not apply in Maine unless the federal legislation specifically addressed its application in Maine

... Thus, anypost-1980 special federal legislative provisions that might give Indians special jurisdictional authority (if, for example, any federal laws in the 1980's provided authority for EPA approval ofa Tribal envirotm1ental program equivalentto a state enviromnental programdelegated by EPA to the state) could notprovide the [Maine Indiantribes] with suchjurisdictional authority unless the federal legislation specifically addressed Maine and made the legislation applicable withinMaine. EPA Memorandum: Penobscot's Treatment as a State Under CWA, § 518(e), at 7-8 (July 20, 1993) (emphasis in original). Thus, Congress expressly considered and rejected the ideathat, underthe Settlement Acts, Maine tribes have (or couldhave) any environmental regulatory jurisdiction or authority over Indian territories. In Maine v. Johnson, the First Circuit Court of Appeals reached the same conclusionin the contextofthe CW A. Maine is concerned that EPA's newplanned rulemaking with respectto the tribal TAS process for purposes ofthe CW A impaired water list and TMDL program may fail to acknowledge the unique tribal-State relationship in Maine underthe Settlement Acts andMaine

v. Johnson. Congress has not delegated any regulatory authority underthe CWA to Maine's tribes, but has instead taken pains to emphasizethe opposite- namely, that Section 518 ofthe 

### 5CWA (and thus any TAS eligibility for Maine's tribes) does not apply in Maine for purposes of any CWA regulatory programs. The State ofMaine asks that EPA confirm that its new planned rulemaking will not apply in Maine, and that no Maine tribes are orwill be eligible forTAS status for any purpose under Section 5 I 8 ofthe CWA and any corresponding regulations.

Dated: October 29,2014

6 JANET T. MILLS ATTORNEY GENERAL



# J~ 6 State House Station Augusta, ME 04333-0006 (207) 626-8800



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