EPA also approves revisions to Maine’s water quality standards

On November 6, 2019 the U.S. Environmental Protection Agency (EPA) issued public notice of a proposed action to withdraw its February 2, 2015 decision that unilaterally imposed a Sustenance Fishing Designated Use Subcategory (SFDU) in Maine’s water quality standards (WQS). EPA took the 2015 action without state input, and required use of a 286 grams/day fish consumption rate for establishing human health criteria (HHC) to protect the fish consumption use, in an effort to protect tribal sustenance fishing. EPA has simultaneously approved several revisions to Maine’s WQS, including the creation of an SFDU and the use of a 200 grams/day fish consumption rate for purposes of establishing HHC in certain designated waterbodies.

Under Clean Water Act (CWA) Section 303(c), states have primary responsibility for reviewing, establishing, and revising WQS, which designate uses of a waterbody and set the water quality criteria necessary to protect those designated uses. Section 303(c) requires states to submit new or revised WQS to EPA for review and approval at least once every three years to ensure consistency with the standards in the CWA.

Maine submitted new and revised WQS to EPA for review on January 9, 2013 and February 27, 2014. On February 2, 2015, EPA approved many of Maine’s revised WQS, but disapproved some of those standards as they applied to waters asserted to be within Indian territory. Specifically, in its February 2015 action, EPA interpreted Maine’s “fishing” designated use to mean “sustenance fishing” for all waters allegedly in Indian territory, thereby unilaterally imposing an SFDU on a large swath of Maine waters.

EPA also rejected a number of Maine’s proposed HHCs as inadequate to protect that SFDU. Instead of utilizing Maine’s proposed 32.4 grams/day fish consumption rate for the “fishing” designation, EPA recommended that WQS for “waters in Indian lands” be based on a fish consumption rate of 286 grams/day. EPA relied on an EPA-funded and Tribal-sponsored analysis of traditional Native American lifeways as a basis for this high fish consumption rate.

On behalf of a coalition of potentially-affected dischargers, Pierce Atwood submitted comments opposing EPA’s imposition of the SFDU and use of the 286 grams/day fish consumption rate. The state of Maine also challenged EPA’s actions in federal district court in Maine v. Wheeler, and the Houlton Band of Maliseet Indians and the Penobscot Nation (the Tribes) intervened in support of the EPA’s action.

In July 2018, EPA filed a motion for a voluntary remand back to EPA of its challenged decisions, stating its intention to reconsider its February 2015 decisions. In support of the remand, EPA stated its intention to reconsider its February 2015 decisions and to provide an opportunity for public comment on its proposed decisions prior to reaching any final decisions. Given EPA’s intention to make substantive changes to its February 2015 changes, the court agreed that such reevaluation could alter that status of, or even resolve, the underlying litigation. The court accordingly granted EPA’s motion for remand and stayed the case until December 3, 2019, pending EPA’s reconsideration of its 2015 decisions.

On June 21, 2019 Governor Mills signed into law “An Act to Protect Sustenance Fishing” (L.D. 1775), which establishes an SFDU and applies that new subcategory to certain listed waterbodies (which are set forth in 38 M.R.S. §§ 465-A(1); 467(7), (13), and (15); 468(8); and 469(7)). L.D. 1775 also directs the Maine Department of Environmental Protection (DEP) to adopt human health criteria to protect the new sustenance fishing designated use subcategory using a fish consumption rate of 200 grams/day, by March 1, 2020. On September 25, 2019, DEP announced its proposal to amend the existing Maine WQS regulations to be consistent with L.D. 1775 by creating the SFDU and by developing HHC protective of that use subcategory by using a 200 grams/day fish consumption rate. The Board of Environmental Protection will take testimony on the proposed regulatory change at its November 21, 2019 meeting. The comment period on the proposed rule ends on December 6, 2019.

DEP submitted L.D. 1775 to EPA for review in August 2019. Through its approval issued on November 6, 2019, EPA agreed to the creation of an SFDU, allowed Maine to use a fish consumption rate of 200 grams/day, and endorsed the list of waterbodies to which the SFDU applies. EPA deferred a decision on the adequacy of certain cancer risk levels referenced in L.D. 1775 until Maine develops and submits a new HHC.

EPA’s proposal to withdraw its February 2015 action is subject to a 30-day comment period, which also closes on December 6, 2019. Meanwhile, the Tribes filed a motion in Maine v. Wheeler to stay EPA’s voluntary remand, which the state of Maine and the EPA have opposed. A decision on this motion is still pending.