## JOINT

# COMMENTS OFMAINE ATTORNEY GENERAL JANET MILLS 

# AND PATRICIA 

# AHO COMMISSIONEROF THE MAINE

# DEPARTMENT OF ENVIRONMENTAL PROTECTION 

# ONTHE DRAFT 

# WATER QUALITY STANDARDS PROPOSED BY THE PENOBSCOT INDIAN 

# NATION AUGUST 7 2014 The State 

### of

## Maine by and through its Office 

### ofAttorney General 

### and its 

### Department of 

### Environmental Protection collectively the 

# State hereby submit the following joint 

### comments in response to the recent 

### Public Notice 

### ofHearing and 

### Request for

## Comments by the 

### Penobscot Indian Nation 

# PIN in connection with 

## PINs draft 

### proposed water quality standards

# WQS dated June 

## 10 2014 These comments are intended to notify 

### PIN ofthe States position that the State rather than 

## PIN has the authority under the 

### Maine Implementing 

## Act 30

# MRSA §§ 

### 6201 et

### seq

# MIA and the 

### Maine Indian 

### Land Claims Settlement 

## Act 25 

# USC §§ 1721 et

### seq

# MICSA collectively 

### Settlement 

# Acts and the 

### Clean Water 

## Act 33 

# USC §§ 1251 et 

### seq

# CWA to set

# WQS for 

### Maine waters within or near 

## PINs territory Pursuant to the operative statutes the State has the authority 

### and responsibility to establish

# WQS for all ofthe waters ofthe State of

## Maine including those within or near 

## PINs and other Indian territories 

### and the statutes 

### do not permit 

### PIN or any other 

### Maine tribe to set

# WQS inthe States stead as is 

### more fully explained 

## below By submitting these 

## comments the State is not in 

### any 

## way 

# 1 submitting itself to 

## PINs tribal jurisdiction 

### andor

# 2 recognizing 

## PINs authority or jurisdiction to promulgate 

# WQS or take 

### any other environmental regulatory 

### measures for any waters within the State including those waters arguably within or near 

## PINs territory



## The State rather 

### than 

## Maines Indian tribes has the authority 

### and jurisdiction 

### under the 

# CWA and the Settlement Acts to establish

# WQS in 

### or near

## Maine Indian Territories 

### The 

# CWA instituted 

# a comprehensive program forcontrolling 

### and abating water 

### pollution Train 

### v City 

### of

## New York 420 

# US 35 37 

# 1975 The 

# CWA aims to restore

### andmaintain the 

### chemical physical and biological integrity 

### ofthe 

### Nations 

## waters 33

# USC § 

## 1251a 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

# USC § 

## 12516

It is

## now wellestablished that the State has primary environmental regulatory jurisdiction over all waters in the State 

### of

## Maine including 

### any waters in or near tribal territories 

### The 1980 Maine Indian Settlement 

### provided that with very limited 

### exceptions the Tribe would be subject 

### to Maine

# law Maine 

## v Johnson 498 

## F3d 37 42 1st

### Cir

## 2007 One ofthe cornerstones of

## MIA establishes 

### Except as otherwise provided in this 

## Act all Indians Indian nations 

### and tribes 

### and bands 

### ofIndians in the State 

### and any lands orother 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 

### ofthe State to the 

### same extent as 

### any other person or lands orother natural resources therein 

### 30

# MRSA § 

## 6204 

# The then Interior Secretarys 

### stated to 

### Congress that the Settlement Acts 

### were intended to effectuate the broad assumption 

### ofjurisdiction over Indian land 

### by the State of

## Maine 

# HR Rep 961353 at

## 28 reprinted in 

### 1980

# USCCAN 3786 38033804 report

### ofthe 

### Department ofthe 

### Interior Johnson 498 

## F3d at 

### 45 

## n10 This jurisdictional principle 

### was confirmed 

### and approved for federal purposes in

# MICSA 25

# USC § 

### 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 

# HR Rep 961353 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 environmental protection are fully applicable as provided in 

### the proposed bill 

### and Section 

### 6204 ofthe 

### Maine Implementing

# ActS Rep 96957 at

## 27

# HR Rep 961353 at

## 20

2

### Johnson 

## 498 

## F3d at

## 4344 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

## forexample although the federal 

### Clean Air

## Act 42 

# USC § 

## 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 such matters as safety public health environmental regulation or land

# use S Rep 96957 at 

## 31 Id at 

### 44

# n7 This Congressional understanding 

### ofthe States environmental jurisdiction 

### and authority
over 

### Maine Indian tribal territories 

### was subsequently confirmed again 

### by Congress in 

### 1987 

## when it 

### amended the

# CWA by inter alio adding Section 

## 518 which sets forth tribal rights

### and responsibilities Section 

### 518 allows Indian tribes to apply for 

### treatment as state status 33 

# USC § 

## 1377e Generally outside 

### of

## Maine an Indian tribe

## may

## now as a result 

### ofthe passage 

### ofSection 

### 518 ofthe

# CWA be granted jurisdiction to regulate water resources within its borders in the 

### same manner as states Outside 

### of

## Maine this includes the authority to establish tribal 

# WQS subject to 

## EPA approval and the authority to issue National Pollution Discharge Elimination 

### System

# NPDES permits for discharges into such 

### waters 33

# USC § 

## 1377e 40 

# CFR § 

## 1318 City

### ofAlbuquerque v 

## Browner 97

## F3d415 418 Cir

## 1996 However because it 

### would affect 

## Maines regulatory jurisdiction 

### and it 

### was not 

## made explicitly applicable to 

## Maine Section 

### 518 does not apply in 

## Maine 25

# USC § 

# 1735b Indeed Congress considered this very issue This section does not override the provisions of the 

### Maine Indian 

### Claims Settlement 

### Act 

## 25

# USC § 

## 1725 Consistent with subsection 

# h of the

3Settlement 

## 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

## bySection Analysis reprinted in 

### 1987 

# USCCAN 5 43 

### emphasis

## added see also 

### Johnson 498 

## F3d at 

### 43 

# n5 EPA also addressed this issue in a 1993 guidance 

### document and reached the 

### same conclusion 

# Aprovision 

### ofthe 

### 1980 Federal Settlement 

## Act 25

# USC § 

# 1725h would seem to invalidate federal laws that 

### might give the Penobscots special status including treatment as a state for certain environmental 

### programs or purposes if it 

### would affect or

## preempt the States authority including the States jurisdiction over environmental 

### and land use matters 

### The final critical provision 

### ofthe 

### 1980 Federal 

### Act forjurisdictional analysis relates to future legislation Future federal legislation for the benefit 

### ofIndians 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 any post

## 1980 special federal legislative provisions that 

### might give Indians special jurisdictional authority 

## if for 

### example any federal laws in the 

### 1980s provided authority for

## EPA approval 

### ofa Tribal environmental 

### program equivalent to a state environmental 

### program delegated 

### by

## EPA to the state could not provide the Penobseots with such jurisdictional authority unless the federal legislation specifically addressed 

### Maine and 

## madethe legislation applicable within 

## Maine 

# US EPA Memorandum Penobscots Treatment as a State 

### Under 

# CWA §

# 518e at 8 

### July 

## 20 

## 1993 Thus Congress expressly considered and rejected the idea that under the Settlement 

### Acts Maine Indian Tribes including 

## PIN have any environmental regulatory jurisdiction over Indian territories In 

### Maine v Johnson the First Circuit Court of

### Appeals reached the 

### same conclusion in the context 

### of the

# CWA Therefore under the Settlement Acts 

### and the 

# CWA the State and not 

### PIN or

### any other 

### Maine Indian tribe has the authority to promulgate 

# WQS In 

### any event 

## PINs proposed

# WQS in addition to being unlawful under the Settlement Acts 

### and the 

# CWA are unnecessary because 

## Maines 

# WQS were promulgated 

### by the State
4following full notice 

### and hearing including consideration of

### comments from 

## PIN other 

### Maine tribes 

### and 

## members of the public 

### and are 

### more than adequate to protect all 

### Maine waters for the benefit 

### of all citizens residing in

## Maine including 

### members of

# KN

Dated 

# 24 ap40 JANET

# T MILLS 

# ATTORNEY GENERAL Dated 

## PATRICIA

# W AHO COMMISSIONER MAINE DEPARTMENT ENVIRONMENTAL PROTECTION

2 

# I

I 

## F1 1 N 111 

# T

# MILLSUu FATKIciA

# WAHO 6 State 

### House Station 

### Augusta 

# ME 043330006 

# 207 6268800 17 State 

### House Station 

### Augusta

# ME 043330017 

# 207 2877688

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