Technical Support

Document for

Proposal of Certain 

Federal Water Quality 

Standards Applicable 

to Maine: Scope of 

Waters

April 8, 2016

U.S. Environmental Protection

Agency
Technical Support Document: Scope of Waters April 2016

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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 designated 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 sections 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 

Tribes and Penobscot Nation (together, “Southern Tribes”) 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 waters outside of Indian lands where the designated use of 

sustenance fishing applies. This Technical Support Document (TSD) provides further 

information regarding these two categories of waters. Whether a specific water falls 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 

Economic Analysis conducted for this proposed rulemaking, EPA identified a total of only 33

facilities that discharge to waters in Indian lands or their tributaries, a small subset of the 478 

MEPDES permitted dischargers in Maine. 

I. Waters in Indian Lands. 

Based on the settlement acts1applicable to the four federally recognized Indian tribes in 

Maine, there are two types of “Indian land” located within the State: trust lands and reservations.

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.; 

Maine 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. 
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A. Trust Lands. Each of the four tribes has trust lands. The trust lands acquired for the 

tribes in Maine are 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 included waters 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 Nation 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 the 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. The State 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 

entered an order holding that under the definition in MIA section 6203(8), the Nation’s 

reservation includes only its islands in the Main Stem 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. LEXIS 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

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

the river. The 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. Common law in Maine provides 

that owners of shore 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 governing 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 the 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 head 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 lands.” 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 sections 6207(4) and (9) of MIA applies. 

As discussed in the proposed rulemaking, 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 waters in Maine where sustenance 

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 sections 6207(4) and (9) of MIA constituted a new 

or revised water quality standard and approved the provisions 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).
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forth in MIA sections 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 reservations for purposes other than sustenance fishing. This 

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

further below.

The 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 in the entire main stem of the 

Penobscot River, though its reservation 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 fishing 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 sections 6207(4) and (9) provide the Passamaquoddy with 

a right to sustenance fish on its reservation. The 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 reservation 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 

designated 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 sections 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. LEXIS 169342 at *105.

11 Id. at *114-115.