UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1

September 21, 2015 5 POST OFFICE SQUARE, SUITE 100 BOSTON , MA 02 109-3912

Avery Day, Acting Commissioner Maine Department ofEnvironmental Protection 17 State House Station Augusta, Maine 04333-0017

Re: Water Quality Standards in Maine

Dear Commissioner Day: OFF ICE OF THE REG IONAL ADMINISTRATOR

I am writing to address questions and concerns raised in Governor LePage's letter ofAugust 31, 2015, addressed to the Congressional delegation for the State ofMaine and former Commissioner Abo's letter ofthe same date regarding water quality standards in the State. I am hoping to clarify EPA' s understanding ofevents that led to the Agency initiating the process of promulgating certain water quality standards (WQS) in the State and to address what appear to be misunderstandings about the meaning ofEPA doing so.

As youknow, the current situation arose in connection with an EPA decision in direct response to a request by the State ofMaine in 2013 that EPA approve certain revisions to the State's WQS in the territories ofthe federally recognized tribes in Maine. Maine's request raised challenging and unique questions. As EPA has concluded, the Maine Indian Claims Settlement Act (MICSA) gives the State authority to set water quality standards in tribal waters, but as is the
case in all states, those standards must be consistent with the requirements ofthe Clean Water Act (CW A). MICSA also secures to the tribes in Maine the ability to take fish for their individual sustenance in those waters. EPA was deliberating the challenging question ofhow to reconcile the provisions ofMJCSA withthe requirements ofthe CWA when in 2014 the State filed suitto compel EPA to make a decision. At the State' s request, EPA agreed to decide whether to approve not only state WQS that implicated the tribes' ability to take fish, but also all the other state WQS as they applied in tribal waters.

Int

ernet Adidress (URL) • http:// www

.epa.gov/region1 Recycled/Recyclable • Printed with Vegetable 011 Baaed Inks on Recycled Paper(Minlrnt.lm 30% Po.tconaumer)EPA ultimately approved the majority ofthe State's WQS in tribal waters in three sets of decisions issued in February, March, and June 2015. EPA did disapprove state WQS designed to protectpublic health becausethey were not based on the bestavailable evidence ofa fish consumption rate that represented a tribal sustenance use oftheir waters, a use which is provided for by both state and federal law. In addition, EPA was required to disapprove several state WQS that did not meet basic requirements ofthe CWA unrelated to tribal uses. Formany of these latter WQS, the record shows that EPA had for years informed the State that these WQS
were not approvable or needed to beupdated, and the Agency had worked to support DEP's attempts to revise those standards.

In each ofthe three sets ofdecisions EPA issued to address the State's WQS involved in Maine's suit against the Agency, EPA made it clear that it is the Agency's strongpreference that the State take the lead in developing a response to EPA's disapprovals. The CW A imposes on EPA an obligation to promptly propose a federal WQS ifa state has not revised its WQS to address an EPA disapproval within 90 days following that disapproval, and to promulgate final WQS 90 days thereafter. Nevertheless, EPA has consistently explained that ifMaine was diligently working to develop protective replacement WQS but was unable to complete the effort in 90 days, the Agency would be prepared to work with DEP beyond the 90-day period provided to the State under the CW A. Any federal promulgation ofWQS would not come until next summer at the earliest, leaving substantial time for the State to develop revised state standards.

ButEPA cannot ignore its statutory duty to move toward a prompt proposal offederal WQS in the absence ofany evidence that the State is prepared to revise state WQS to address the deficiencies identified in EPA's disapprovals. EPA is concerned that our repeated efforts to meet with DEP simply to talk overwhether the State might undertake any standards revisions

- requests we made in each ofourdecision letters in February, March, and June- have been put offuntil laterthis month. Press reports ofthe Governor's reaction to EPA's disapprovals, position papers DEP has posted on its official website, and the Governor's letter ofFebruary 11, 2015 suggest strongly that there is a significant number ofEPA's disapprovals that Maine is not prepared to address, but would instead challenge in court. In addition, several oftheWQS EPA hadto disapprove**ar~** codified in state statute. So even ifDEP supported revising those standards, the ability ofDEP to follow through is entirely dependent on legislative approval, whichhad been denied when DEP sought to remedy several ofthese WQS in the past. Therefore, while EPA stands readyto work with Maine to remedy any or all ofthe disapproved WQS, and continues to prefer state action over a federal promulgation, the Agency needs to begin the promulgation process to ensure that adequate WQS are inplace in the event discussions withDEP do not reach agreement on revising state standards or DEP is not able to complete those revisions. This is particularly important for the WQS that EPA disapproved for tribal waters, since those WQS are not in effect in the meantime.Let me be clear

-- EPA has no desire to "federalize" the State ofMaine's water quality standards. The Agency is prepared to work with Maine on any ofthe disapproved WQS that the State is willing to revise and will forgo final promulgation ofany federal standard where the State has adopted a revised state standard that addresses EPA's disapproval. EPA does, however, have a duty under the Clean Water Act to ensure there are standards in place that adequately protect the

uses ofthe relevant waters and are consistent with the Clean Water Act. We sincerely hope that you are able to indicate a willingness on the State's part to work in cooperation with EPA on revising the disapproved WQS so thatwe can continue to provide the public with a level of protection for Maine's water resources that state and federal law both mandate

.
Thank you for your c nsideration. 

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t urtis Spalding Regional Administrator

cc: Senator Susan M. Collins Senator Angus S. King Congressman Bruce L. Poliquin Congresswoman Rochelle M. Pingree Honorable Paul R. LePage Honorable Brenda Commander Honorable Edward (Charlie) Peter Paul Honorable Fred Moore Honorable WilliamNicholas Honorable Kirk Francis