UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION I 

J.F. KENNEDY FEDERAL BUILDING, BOSTON, MASSACHUSETTS 02203-2211 

November 3, 1988 

stephen w. Groves, Director 

Bureau of Water Quality Control 

state of Maine 

Department of Environmental Protection 

state House Station 17 

Augusta, Maine 04333 

Re: Proposed Changes to 38 M.R.S.A. §§ 363-C and 464(4) (F) (1) and 

Related Matters 

Dear Mr. Groves: 

By letter dated May 21, 1987, the Environmental Protection Agency 

("EPA") disapproved, pursuant to Section 303 of the Clean Water 

Act, 33 u.s.c. § 1313, and the regulations promulgated thereunder 

at 40 C.F.R. Part 131, the following sections of the Maine's 

Water Quality Standards: 

38 M.R.S.A. § 464(F) (1) (Definition of "existing use"); and 

38 M.R.S.A. § 363-C (Reclassification of proposed 

hydroelectric impoundments to Class GP-A). 

In our May 21st letter, we also requested that the DEP provide written assurance that it would make other specified changes to 

38 M.R.S.A. §§ 464(4) (F) (5) and 465(2)-(4) during its next water 

quality review and provide an interpretation of 38 M.R.S.A. § 

467(1)(A) (2) and 467(7) (A) (3) from the Maine Attorney General's 

Office. 

On November 25, 1987, the Maine Department of Environmental 

Protection ("DEP") sent EPA proposed changes to 38 M.R.S.A. §§ 

363-C and 464(4)(F) (1). Consistent with the informal comments 

provided to the DEP on April 10, 1988, EPA's position with 

respect to these proposed changes is set forth below. Maine has 

also recently proposed regulations which implement certain 

provisions of the Maine Water Quality Standards. Chapter 587 of 

these regulations directly relates to the definition of existing 

use proposed by the State in Section 464(4) (F) (1). We have 

therefore included comments on this regulation as well. 

1. Section 464CFl (1) (Definition of "Existing Use"): 

The definition of "existing use" in the proposed revision to 

Section 464(F) (1) is missing certain key language which is in the 

federal definition of that term at 40 C.F.R. § 131.3(e). 
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Specifically, the federal index date of "November 28, 1975"--

which is in Maine's current version of Section 464(F) (1)--is 

omitted in the proposed revision. This date or, if preferred, 

an earlier date, must be included in the State's definition of 

"existing use. " In addition, the proposed definition does not 

provide that uses are existing "whether or not they are included 

in the water quality standards." Such language must be added to 

the State's definition so it is clear that a use may be existing 

even though it is not a designated use under Maine's Water 

Quality Standards. 

The proposed revision also includes language which is 

inconsistent with the federal antidegradation policy. 

Specifically, the revision states that "factual determinations of 

what constitutes an existing in-stream water use on a particular 

water body and the extent of allowable impact on the existing use 

shall be made on a case-by-case basis • • • " (Emphasis added). The 

phrase "and the extent of allowable impact on the existing use" 

must be deleted since it indicates that existing uses will not 

be fully maintained and protected as required by federal law. 

Unless the changes noted above are made, the statutory provision 

will not be approvable. 

In the proposed definition of "existing use," Maine has also 

listed specific criteria for the State to examine in making caseby-case determinations of "what constitutes an existing in-stream 

water use on a particular water body." The recently proposed 

regulations in Chapter 587.1 of the Bureau of Water Quality 

Control Regulations expands on the criteria the Board will 

examine. In general, this approach of including the criteria the 

State will examine in determining whether a use is "existing" in 

the State's definition of "existing use," is acceptable to EPA. 

It is not clear, however, if, based on the specific criteria the 

State has chosen, all the uses that would be considered 

"existing" under the federal definition would also be considered 

"existing" under the State's definition. 

In particular, since the criteria listed in both the proposed 

statutory provision and the regulation emphasize the length and 

number of times a use has occurred, EPA is concerned that the 

State could determine that a particular use was not "existing" 

because such a use was not currently occurring or documented as 

occurring even though the water quality was suitable to allow 

such a use to occur. For example, the state might improperly 

determine that "shellfishing" is not an existing use in an area 

where shellfish are propagating and surviving and are suitable 

for harvesting simply because the shellfish are not currently 

being harvested. See, EPA's "Questions and Answers on 

Antidegradation," dated August, 1985. Therefore, although EPA 

would not disapprove Section 464(F)(1) as proposed, we do 

recommend that Maine add language to either the statute or the 
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regulations that would make it clear that the State will take 

into account whether the existing water quality is suitable to 

allow certain uses to occur even though they may not be currently 

occurring. 

Furthermore, the criteria the state has chosen to include in 

Chapter 587.1 relate primarily to "human uses" such as boating, 

swimming, fishing, etc. Since Maine's Water Quality Standards 

specifically designate "habitat for fish and other aquatic life" 

as a use, EPA also recommends that additional criteria be 

developed which relate to the "aquatic life use. " This could 

include reports or testimony which document the species of fish 

in a particular waterbody, or habitat suitability information 

confirming that certain aquatic uses could occur in a waterbody 

in the absence of testimony. 

The proposed regulations in Chapter 587 also raise a question 

regarding the State's antidegradation policy. Under the federal 

anti-degradation policy, any proposed discharge which would 

cause a lowering of water quality requires a demonstration of 

"important economic and social benefits. " 40 C. F.R. 

§ 131.12(a)(2). EPA's currect view is that, if a discharge will 

not "significantly" lower water quality, the antidegradation 

requirements will be met and a detailed economic and social 

benefit analysis need not be performed. Since there is no EPA 

national guidance identifying a single acceptable method for 

determining whether a discharge is significant, the Region has 

proposed that the definition of "significant" be left up to the 

states, subject to EPA approval. 

Under the proposed Chapter 587.5.8., Maine has chosen to operate 

"under the rebuttable presumption that •lowering of the existing 

quality of any water body' will occur when a proposed discharge 

or activity consumes greater than 20% of the remaining 

assimilative capacity allowed in the appropriate class. " Thus, 

all discharges below the 20% cutoff would automatically be 

determi ned to be "insignificant." Such an approach could have 

results which are contrary to the federal antidegradation policy 

since repeated or small discharges below the 20% cutoff could 

result in significant water quality degradation without a 

demonstration of economic and social benefit. For this reason 

the Region finds that the proposed regulation, as drafted, may 

not be approvable without changes. 

Until national policy on this issue is established, the Region 

would find this provision acceptable if it is redrafted in the 

following manner: First, the regulation should be changed so 

that all discharges greater than 20% of the remaining 

assimilative capacity would be automatically deemed 

"significant." 
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Second, the regulation should provide that all discharges less 

than t he 20% cutoff will be subject to a case-by-case review by 

the State to determine whether or not the discharge is 

significant. In examining each discharge on a case-by-case 

basis, the State will consider certain listed criteria such as 

the degree of degradation that has been permitted previously, the 

sensitivity of the particular water body, etc. 

Finally, the regulation should state that notice of the state 

finding of significance or insignificance and an opportunity to 

comment on such finding will be included in the public notice of 

the permit proposed to be issued to the discharger. 

2. 38 M.R. S.A. § 363-C (Reclassification of Proposed 

Hydroelectric Impoundments 

The proposed provisions on state certification and dam licensing 

are acceptable but the state must clarify Section 635-B(l) (C) so 

that it is understood that it is the change in the 

characteristics of the waterbody both upstream and downstream 

resulting from the proposed dam that must not violate Section 

464 (4)(F) . 

3. Other Issues 

To date EPA has not received written assurances that the State 

will incorporate specific requirements on nonpoint source control 

in 38 M.R. S.A. § 464(4) (F) (5) or include dissolved oxygen 

criteria protective of salmonid spawning in 38 M.R.S.A. § 

465(2)-(4) as required by EPA's May 21, 1988 letter referred to 

above. These written assurances should be submitted to the 

agency as soon as possible. 

In addition, EPA has not received an interpretation of 38 

M.R.S.A. § 467(1) (A) (2) and 467(1) (A) (3) from the Maine Attorney 

General's Office. The Region recognizes that the State has been 

following the interpretation put forth by EPA in its May 6th 

letter regarding these two provisions. However, until this 

interpretation is confirmed by the Attorney General, the 

provision is subject to alternative interpretations in the future 

which may not be consistent with federal requirements. For this 

reason, the state must either remove the language in question 

from the statute or submit a formal Attorney General's Statement 

which indicates that it is being read consistently with federal 

requirements. 
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Please feel free to call Eric Hall of my staff or Tonia D. 

Bandrowicz or Jonathan Kaledin of the Office of Regional counsel 

if you have any questions regarding this matter. Mr. Hall can be 

reached at (617) 565-3533. Mr. Kaledin can be reached at (617) 

565-3334. Ms. Bandrowicz will be on detail to EPA's Washington 

D.C. Office until February, 1989 but can be reached at (202) 

475-8180. 

Sincerely, 

David A. Fierra, 

~ Director 

Water Management Division 

cc: Ron Kriesman, Natural Resources Council, Maine 

David K. Sabock, WH-585 

Jonathan Kaledin, RRC-2203