# Technical Support

Do c u m e n t f o r

Proposal of Certain

Federal Water Quality

Standards Applicable

to Maine : Scope of

Waters

April 8 , 2016

U.S. Environmental Protection AgencyTechnical Support Document : Scope of Waters April 2016

2 As explained in the preamble to EPA’s proposed rulemaking, EPA is proposing numerous water quality standards (WQS) for waters in Indian lands in Maine, including human health criteria (HHC), bacteria, ammonia, pH, and tidal temperature criteria, a mixing zone policy, and

restrictions on the use of certain natural conditions clauses. This paper describes the “waters in Indian lands” to which EPA’s rulemaking applies.

EPA’s proposed HHC are designed to protect the designat ed use of sustenance fishing by members of the four federally recognized Indian tribes in Maine. To ensure protection of this use, the HHC will apply to all waters subject to this designated use. EPA has interpreted and approved Maine’s designated use of “fishing” to include sustenance fishing for all waters in Indian lands. EPA also approved section s 6207(4) and (9) of MIA as an explicit designated use of sustenance fishing applicable to any inland waters in the reservations of the Passamaquoddy

Tribe s and Penobscot Nation (together, “ Southern Tribe s”) to which those statutory sections apply.

Because of unique circumstances associated with the relevant waters in Maine

– including a unique federal and state statutory arrangement and ongoing litigation in federal court

– EPA believes it is appropriate to provide additional information clarifying the waters to which all of the proposed WQS, including the HHC, would apply, and an additional set of waters where only the HHC would apply. Such waters can be usefully described in two general categories: (1) all “waters in Indian lands” and (2) all water s outside of Indian lands where the designated use of sustenance fishing applies. This Technical Support Document (TSD) provides further

infor mation regarding the se two categories of waters

. W hether a specific water fall s within one of these categories will depend on the status of such water under applicable federal and state law,

and the status of such a water may therefore change due to litigation or other legal developments regarding that specific waterbody. The two general categories to which the HHC apply , however,

will remain constant.

EPA notes that the waters that fall within these two categories are located in a limited number of

areas in Maine and represent a small fraction of all waters within the State. As noted in the

E conomic Analysis conducted for th is proposed rulemaking, EPA identified a total of only 33

facilities that discharge to waters in Ind ian lands or their tributaries , a small subset of the 478 MEPDES permitted dischargers in Maine.

I. Waters in Indian Lands.

Based on the settlement acts 1 applicable to the four federally recognized Indian tribes in Maine, t here are two types of “Indian land ” located within the State : trust lands and reservation s

. Any waterbody located within either of these types of Indian land is a “water in Indian lands” as that term is used in EPA’s proposed rulemaking.

1 The “settlement acts” are as follows: Maine Indian Claims Settlement Act (MICSA), 25 U.S.C. §§ 1721, et seq

. ; Ma ine Implementing Act (MIA), 30 M.R.S. §§ 6201, et seq .; Aroostook Band of Micmacs Settlement Act (ABMSA), 25 U.S.C. § 1721; Micmac Settlement Act (MSA), 30 M.R.S. §§ 7201, et seq.Technical Support Document : Scope of Waters April 2016

3 A. Trust Lands

. Each of the four tribes has trust lands. The trust lands acquired for the

tribes in Maine ar e the product of modern conveyances. Under the settlement acts, the U.S. Secretary of the Interior was authorized to acquire “land or natural resources ” and to hold them in trust for the respective Indian tribe. 2 The term “land or natural resources” includes “water and water rights.” 3 Thus, any waters within Indian trust land as provided for in the settlement acts are
“waters in Indian lands.” This includes waters that are interior to the trust lands as described in

the relevant deeds of trust as well as waters to which the tribes, or the U.S. as a trustee for the tribe, hold riparian or littoral rights. Generally, based on the default Maine common

- law property rule under which owners of riparian land also own out to the thread, or middle, of most streams, Wilson & Son v. Harrisburg , 107 Me. 207, 212

- 213 (1910), any such trust acquisition would

have include d water s adjacent to land taken into trust where the deed in trust does not specifically indicate to the contrary

. Thus, such adjacent waters out to the thread of the waterbody are included in the trust holding, and are “ waters in Indian lands. ”

B. Reservations

. The Passamaquoddy Tribe and Penobscot Indian Nati on have

reservation lands as defined in MIA. 4

1. Penobscot Reservation

. The boundaries of the Penobscot Nation’s
reservation are the subject of ongoing litigation between the State and Tribe in federal district

court. 5 The United States intervened in that case , taking the position that the reservation includes
Penobscot River waters . The United States argued that under applicable law, including the Maine Settlement Acts and the treaties referenced therein, the Penobscot Reservation extends bank to
bank in t he Penobscot River Main Stem, but that at a minimum the Reservation extends to the
thread of the River around the Nation’s reservation islands in accordance with Maine common law property rules . T he S tate of Maine rejected both of these arguments, and took the position that the Reservation consists of the island uplands only . On December 16, 2015, the court

e ntered an order holding that under the definition in MIA section 6203(8), the Nat ion’s reservation includes only its islands in the Main S tem of the Penobscot River from Indian Island
north to the confluence of the East and West branches of the Penobscot River. 6

The court did not address “whether the Penobscot Nation has common law riparian rights as an

island owner in the Penobscot River

, ” pursuant to which the islands include part of the bed of the

Penobscot River , which in turn is encompassed in the Nation’s reservation. 7 The United States

filed a motion for reconsideration, citing Maine common law rules under which owner of an

island would own to the thread of the River. On February 18, 2016

, the court denied the motion without opinion

. 8 The time for appeal in the case has not yet expired; to date, no party has filed an appeal. EPA will follow the law of the case in Mills

, noting that the district court did not rule

2 MICSA § 1724(d); ABMSA § 5(a).

3 MICSA § 1722(b); ABMSA § 3(4).

4 30 M.R.S. §§ 6203(5) (defining Passamaquoddy Indian Reservation ); 6203(8) (defining Penobscot Indian Reservation).

5 Penobscot Nation v. Mills , No. 1:12

- cv

- 254

- GZS, 2015 U.S. Dist. L EXIS 169342 (D. Maine Dec. 16, 2015) (formerly, Penobscot v. Schneider ).

6 Id . at *117

- 118.

7 Id . at *116, n.48.

8 Penobscot Nation v. Mills , No. 1:12

- cv

- 254

- GZS (D. Maine Feb. 18, 2016) (order denying motion to amend).Technical Support Document : Scope of Waters April 2016

4 on the government’s argument concerning the Penobscot Nation’s common law riparian rights in

the river. T he outcome of any appeal of Mills or other litigation may clarify the scope of the
Penobscot Nation’s Reservation

.

2. Passamaquoddy Reservation

. The Passamaquoddy Reservation includes
three areas

. The first is a coastal area on Pleasant Point, Maine. Com mon law in Maine provides
that owners of s hore land above the mean high water mark presumptively hold title in fee to
intertidal land. See Bell v. Town of Wells , 557 A.2d 168 ( Maine , 1989). In Bell (often referred to as the “Moody Beach case”), the court explained that such title is subject only to the public’s right to fish, fowl, and navigate, and that the rule of law g overning titles to intertidal land has its origin in the Colonial Ordinance of 1641

- 47 of the Massachusetts Bay Colony. As stated in an article written by the Marine Law Institute, University of Maine School of Law, “[t]he Moody
Beach Case affirms that in Maine owners of beachfront property or property adjoining tidelands (also called littoral or riparian owners) have property rights to the low water mark or low tide area subject only to a public easement for fishing, fowling, and navigation.” See Citizens’ Guide to Ocean and Coastal Law, Public Shoreline Access and the Moody Beach Case, August, 1990. Therefore, the Passamaquoddy Tribe’s reservation at Pleasant Point includes at least the waters present in the intertidal zone

, and such waters are “waters in Indian lands

. ”

MIA also defines the Passamaquoddy Reservation to include an area at Indian Township. Under

Maine common law regarding riparian ownership rights, the Passamaquoddy Tribe’s reservation at Indian Township includes waters to th e thread of waterbodies adjacent to the reservation. Such
waters are “waters in Indian lands.”

Finally , MIA states that the Passamaquoddy Reservation includes “15 islands in the St. Croix River in existence on September 19, 1794 and located between the hea d of the tide of that river

and the falls below the forks of that river .

. . .” 9 The Passamaquoddy Tribe and the U.S. Department of the Interior are working together to confirm the status of such islands . Given that MIA explicitly enumerates these islands for inclusion in the Tribe’s reservation, EPA presumes

that riparian waters associated with the islands in this stretch of the St. Croix River are also

within the reservation and thus “ waters in Indian l ands. ” Further efforts to confirm the status of these islands may clarify the specific locations of these waters.

II. Waters outside of Indian lands where the designated use of sustenance fishing set forth

in section s 6207(4) and (9) of MIA applies

.

As discussed in the proposed ru lemaking, EPA is making a determination pursuant to
section 303(c)(4)(B) of the Clean Water Act regarding the same HHC in Maine that EPA has disapproved

. That determination applies, in part, to any water s in Maine where sustenan ce fishing is a designated use but such water is determined not to be a “water in Indian lands.” In its February 2015 Decision, EPA concluded that section s 6207(4) and (9) of MIA constituted a new or revised water quality standard and approved the provisio n s as a designated use of sustenance fishing applicable to all inland waters of the Southern Tribes’ reservations in which populations of fish are or may be found. Accordingly, the approved designated use of sustenance fishing set

9 30 M.R.S. § 6203(5).Technical Support Document : Scope of Waters April 2016

5 forth in MIA section s 6207(4) and (9) applies to all inland waters where the Southern Tribes have a right to sustenance fish, irrespective of whether such waters are determined to be within

or outside of the scope of their reservation s for purposes other than sustenance fishin g. This

conclusion is consistent with and follows from the district court decision in Mills , as explained

further below.

T he court in Mills held that the Penobscot Nation’s sustenance fishing right based on MIA section 6207(4) is broader in scope than its reservation under MIA section 6203(8). The court
held that the Penobscot Nation has a right to sustenance fish i n the entire main stem of the
Penobscot River , though its r eservation under section 6203(8) consists solely of the islands

. The
court based this conclusion on the intent of MIA to “provide broad protection for tribal sustenance fishing.” 10 The court cited to clear evidence that the Nation had exercised sustenance fishing rights on the main stem historically, and held that the resulting ambiguity in the meaning of the term “reservation” in section 6207(4) should be resolved “to allow the Penobscot Nation’s longstanding, continuous practice of sustenance fishing in the waters adjacent to its island
reservation.” 11

The designated use of sustenance fish ing tracks the scope of the section 6207(4) fishing right. Accordingly, under the court’s ruling, it follows that the designated use of sustenance fishing applies to the entire main stem of the Penobscot River, including any portion of that waterbody
that may be located outside of Indian lands.

Similar to the Penobscot Nation

, MIA section s 6207(4) and (9) provide the Passamaquoddy with a right to sustenance fish on its reservation. T he Passamaquoddy’s sustenance fishery reservation under MIA section 6207(4)

, at a minimum

, encompasses the entirety of its inland reservation

waters under MIA section 6203(5). However, under the rationale of Mills , it may be that the
Tribe’s section 6207(4) fishery reservat ion is larger than its reservation under MIA section 6203(5). There is a substantial historical record that the Passamaquoddy Tribe fished consistently
in , at a minimum, the waters adjacent to the Indian Township reservation, as well as the stretch
of the St. Croix River that includes the “15 islands” referred to in MIA section 6203(5). Accordingly, in addition to waters in the Passamaquoddy’s reservations and trust lands, EPA presumes that

– as is the case with the Penobscot Nation in light of the Mills ruling

– the
d esignated use of sustenance fishing would apply to any portion of inland waters outside of the lands identified in MIA section 6203(5) to which the Passamaquoddy has a right to sustenance fish pursuant to MIA section s 6207(4) and (9)

. As with several of the other conclusions in this TSD, EPA’s understanding of the relevance of the Mills decision to the analogous Passamaquoddy situation could be subject to change based on future court decisions and other legal developments.

10 Mills , 2015 U.S. Dist. L EXIS 169342 a t *105.

11 Id

. a t *114

- 115.