UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 1 

September 21, 2015 

5 POST OFFICE SQUARE, SUITE 100 

BOSTON, MA 02109-3912 

A very Day, Acting Commissioner 

Maine Department of Environmental Protection 

17 State House Station 

Augusta, Maine 04333-0017 

Re: Water Quality Standards in Maine 

Dear Commissioner Day: 

OFFICE OF THE 

REGIONAL ADMINISTRATOR 

I am writing to address questions and concerns raised in Governor LePage's letter of August 31, 

2015, addressed to the Congressional delegation for the State of Maine and former 

Commissioner Abo's letter of the same date regarding water quality standards in the State. I am 

hoping to clarify EPA's understanding of events 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 of EPA doing so. 

As you know, the current situation arose in connection with an EPA decision in direct response 

to a request by the State of Maine in 2013 that EPA approve certain revisions to the State's WQS 

in the territories of the 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 of the 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 of how to 

reconcile the provisions ofMJCSA with the requirements of the CWA when in 2014 the State 

filed suit to 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. 

Internet Adidress (URL) • http://www.epa.gov/region1 

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EPA ultimately approved the majority of the 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 

protect public health because they were not based on the best available evidence of a fish 

consumption rate that represented a tribal sustenance use of their 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 of the CWA unrelated to tribal uses. For many of 

these latter WQS, the record shows that EPA had for years informed the State that these WQS 

were not approvable or needed to be updated, and the Agency had worked to support DEP's 

attempts to revise those standards. 

In each of the three sets of decisions 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 strong preference 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 if a 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 if Maine 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 of WQS would not come until next summer at 

the earliest, leaving substantial time for the State to develop revised state standards. 

But EPA cannot ignore its statutory duty to move toward a prompt proposal of federal WQS in 

the absence of any 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 over whether the State might undertake any standards revisions -

requests we made in each of our decision letters in February, March, and June- have been put 

off until later this month. Press reports of the Governor's reaction to EPA's disapprovals, 

position papers DEP has posted on its official website, and the Governor's letter of February 11, 

2015 suggest strongly that there is a significant number of EPA's disapprovals that Maine is not 

prepared to address, but would instead challenge in court. In addition, several ofthe WQS EPA 

had to disapprove ar~ codified in state statute. So even if DEP supported revising those 

standards, the ability ofDEP to follow through is entirely dependent on legislative approval, 

which had been denied when DEP sought to remedy several of these WQS in the past. 

Therefore, while EPA stands ready to work with Maine to remedy any or all of the 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 in place in the event 

discussions with DEP 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 of Maine's water quality standards. 

The Agency is prepared to work with Maine on any of the disapproved WQS that the State is 

willing to revise and will forgo final promulgation of any 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 of the 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 that we 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. 

s1//) 

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 William Nicholas 

Honorable Kirk Francis