COMMENTS OF MAINE ATTORNEY GENERAL JANET MILLS IN RESPONSE TO 

EPA'S PROPOSED RULEMAKING TO ADDRESS THE PROCESS FOR TRIBES TO 

BE TREATED AS STATES FOR THE CLEAN WATER ACT IMP AIRED 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 of the Clean Water Act, 33 U.S.C. §§ 1251, et seq. 

("CW A") for purposes of the CW A impaired water listing and total maximum daily load 

("TMDL") program. Under EPA's current interpretation of Section 518 of the CWA, 33 U.S.C. 

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

jurisdiction for purposes of administering any EPA-delegated regulatory programs under the 

CWA. See, e.g., 40 C.F.R. § 131.8. This current eligibility requirement is critical in Maine 

because of the unique tribal-State relationship established by Congress and the Maine Legislature 

under the Maine Implementing Act, 30 M.R.S.A. §§ 6201 et seq. ("MIA") and the Maine Indian 

Land Claims Settlement Act, 25 U.S.C. §§ 1721 et seq. ("MICSA") (collectively the "Settlement 

Acts"). Under the Settlement Acts, Maine has primary environmental regulatory authority and 

jurisdiction throughout the State, ·including within Indian territories. This was confirmed by the 

First Circuit Court of Appeals in Maine v. Johnson, 498 F.3d 37 (l 51 Cir. 2007). 

At this time it is unclear whether EPA, as part of its planned rulemaking with respect to 

the tribal TAS process for purposes of the CWA impaired water list and TMDL program, intends 

for such a rule to apply in Maine. It is also unclear whether, for purposes of the new planned 

rule, EPA intends to retain the current TAS eligibility requirement that tribes demonstrate their 

regulatory authority over tribal lands, or replace that requirement with a presumption that 
Congress has delegated the necessary regulatory authority to all tribes (including tribes in Maine) 

in a manner similar to EPA's separate proposed reinterpretation of its general approach to tribal 

jurisdiction to 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 or that includes a 

presumption that Congress has delegated any environmental regulatory authority to Maine's 

tribes, whether by virtue of EPA's new planned rulemaking or its proposed reinterpretation of its 

general approach under Section 518, is unlawful and contrary to the Settlement Acts and Maine 

v. Johnson. 

Under the Settlement Acts, the State of Maine, rather than Maine's tribes, has the 

jurisdiction and authority to administer regulatory programs under the CW A 

The CW A instituted "a comprehensive program for controlling and abating water 

pollution." Train v. City of 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 of States to prevent, reduce, and eliminate pollution." 33 U.S.C. § 

125l(b). It is now well-established that the State of Maine has environmental regulatory 

authority and jurisdiction over all waters in the State, including any waters in or near tribal 

territories. The 1980 Maine Indian Settlement Acts "provided that 'with very limited 

exceptions,' [the Tribe] would be 'subject to' Maine law .... " Johnson, 498 F.3d at 42. One of 

the cornerstones of MIA establishes: 

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 or by any other person or 

entity shall be subject to the laws of the State and to the civil and criminal 

jurisdiction of the courts of the State to the same extent as any other person or 

lands or other natural resources therein. 

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30 M.R.S.A. § 6204. The then-Interior Secretary stated to Congress "that the 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 of the Interior)." Johnson, 498 F.3d at 45 n.lO. Congress confirmed and 

approved this jurisdictional 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 of the 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 environmental protection, are fully applicable as 

provided in [the proposed bill] and Section 6204 of the 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 by other laws would be inapplicable in Maine. 

The Senate Report stated that "for example, 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 of the Maine 

Tribes. This would also be true of police power laws on such matters as safety, public 

health, environmental regulation or land use." S. Rep. 96-957 at 31. 

Id. at 44 n.7. Under the final terms of the 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 or preempted Maine's civil regulatory jurisdiction (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 Indian tribes and affecting or preempting Maine's laws, such as the 1987 

passage of Section 518, would apply in Maine unless those laws were made specifically 

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applicable to Maine. 25 U.S.C. § 1735(b). 

This Congressional understanding of the State of Maine's environmental jurisdiction and 

authority over Maine tribal territories was subsequently confirmed again by 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 of Maine, a tribe may now, as a result of the passage of Section 518 in 1987, 

be granted T AS jurisdiction to regulate water resources within its borders in the same manner as 

states. Outside of Maine, this might include the authority to administer EPA-approved tribal 

programs involving tribal water quality standards ("WQS") or to issue National Pollution 

Discharge Elimination System ("NPDES") permits for discharges into such waters. 33 U.S.C. § 

1377( e); 40 C.P.R. § 131.8; City of Albuquerque v. Browner, 97 F.3d 415, 418 (91

h Cir. 1996). 

However, because it would affect Maine's regulatory jurisdiction and it was not made 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 of the Maine Indian Claims 

Settlement Act (25 U.S.C. § 1725). Consistent with subsection (h) of the 

Settlement Act, the tribes addressed by the Settlement Act are not eligible 

to be treated as States for regulatory purposes ... 

Water Quality Act of 1987, Section-by-Section Analysis, reprinted in 1987 U.S.C.C.A.N. 5, 43 

(emphasis added); see also Johnson, 498 F.3d at 43 n.5. In addition, EPA itself addressed this 

issue in a 1993 guidance document, and reached the same conclusion: 

The critical jurisdictional section of the Federal [Settlement] Act is§ 1725, 

which ratifies the State Act, limits the application of federal Indian law in 

Maine if it would affect State law, and bars the application of future federal 

Indian law in Maine unless the federal legislation specifically notes its 

applicability in Maine .... 

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Subsection 1725(h) is a critical provision of the Federal [Settlement] Act 

that explicitly and completely prohibits the application to the [Maine Indian 

tribes] of any federal law that (I) gives special status to the [Maine Indian 

tribes) and (2) "affects or preempts" Maine's civil, criminal, or regulatory 

jurisdiction. 25 U.S. C.§ 1725(h). This provision specifically includes state 

environmental law and land use law ... This subsection would seem to 

invalidate federal laws that might give the [Maine Indian tribes] special 

status, including treatment as a state, for cettain environmental programs or 

purposes if it would "affect or preempt" the State's authority, including the 

State's jurisdiction over enviromnental and land use matters. 

The final critical provision of the 1980 Federal Act for jurisdictional 

analysis relates to future legislation. Future federal legislation for the 

benefit oflndians that "would affect or preempt" 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 of a Tribal envirotm1ental program 

equivalent to a state enviromnental program delegated by EPA to the state) 

could not provide the [Maine Indian tribes] with such jurisdictional 

authority unless the federal legislation specifically addressed Maine and 

made the legislation applicable within Maine. 

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 idea that, 

under the Settlement Acts, Maine tribes have (or could have) any environmental regulatory 

jurisdiction or authority over Indian territories. In Maine v. Johnson, the First Circuit Court of 

Appeals reached the same conclusion in the context of the CW A. 

Maine is concerned that EPA's new planned rulemaking with respect to the tribal TAS 

process for purposes of the CW A impaired water list and TMD L program may fail to 

acknowledge the unique tribal-State relationship in Maine under the Settlement Acts and Maine 

v. Johnson. Congress has not delegated any regulatory authority under the CW A to Maine's 

tribes, but has instead taken pains to emphasize the opposite- namely, that Section 518 of the 

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CW A (and thus any TAS eligibility for Maine's tribes) does not apply in Maine for purposes of 

any CWA regulatory programs. The State of Maine 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 5 I 8 of the CW A 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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