April 03, 2020
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EPA ruling on water quality standards in Penobscot River tribal sections could cost towns millions

INDIAN ISLAND, Maine — If federal regulators follow through with their mandate to the state to increase its water quality standards in tribal sections of the Penobscot River, it could result in towns and others with discharge permits each having to spend millions of dollars on upgrades within the next five years, according to an attorney involved in a legal dispute over the issue.

On Feb. 2, in what some have described as an “unprecedented” decision, the federal Environmental Protection Agency told state officials that Maine must adopt tighter water standards along the Penobscot River to better protect the sustenance fishing rights of the Penobscot Nation Indian tribe.

Penobscot Chief Kirk Francis said the tribe “couldn’t be happier” with the ruling, but representatives of the state and some municipalities have said it could establish a “double standard” in Maine and appears to contradict the 1980 Maine Indian Claims Settlement Act.

The EPA ruling comes at a time when the Penobscot Nation is suing the state in federal court over the state’s interpretation of whether the tribe’s jurisdictional authority applies to parts of the river that abut tribal islands in the river. Among intervenors in that suit are 18 municipalities and other entities with discharge permits into the river who have an interest in its water quality standards.

Portland attorney Matt Manahan, who represents the towns of Bucksport and Millinocket and many others in between in the lawsuit, said Wednesday that the EPA decision could have a significant financial effect on his clients and that there is no sound scientific basis for requiring the higher standards. Maine already has some of the most stringent water quality standards in the country, he said.

“These [discharge] permits need to get renewed every five years,” Manahan said, adding that some likely will have to be renewed in 2015. “It could result in municipalities having to spend millions of dollars to upgrade their wastewater treatment plants [to get new permits], for no reason.”

The ruling has the potential to affect every permitted discharger along the river or its tributaries, Manahan said, because of the ability of fish to swim upstream or downstream into tribal waters, the boundaries of which are at issue in the tribe’s federal lawsuit.

According to a letter and associated documents sent this month from EPA Regional Administrator Curt Spalding to Maine Department of Environmental Commissioner Patricia Aho, the federal agency is requiring the state to adopt tighter water quality standards in the river where the tribe fishes in order to protect the health of members of the tribe who, because of their traditional sustenance fishing rights along the river, eat more fish caught in the Penobscot River than nontribal Maine residents who live in the area.

“[The state’s human health criteria] are based on a fish consumption rate of 32.4 grams per day, with the exception of arsenic which is based on 138 grams per day,” the EPA said in an analysis of its decision. “However, the [tribal] study indicates that consumption values between 286 and 514 grams per day represent the sustenance fishing use in tribal waters.”

Traditional tribal sustenance fish consumption rates must factor into the state’s water quality standards for tribal areas, the EPA told the state. The federal agency said the state has the right to set the water quality standards in tribal territories, but those standards must comply with federal law.

“EPA concluded that this sustenance fishing practice had to be protected as a designated use of the tribal waters under the Clean Water Act, and the state’s standards did not adequately protect that use,” the agency said in a prepared statement about the Feb. 2 decision.

The state has 90 days from Feb. 2 to address the EPA’s position on increasing standards to protect human health along what is called the “main stem” of the Penobscot River, stretching about 70 miles from the Milford Dam up to Millinocket. If the state does not respond within that time, EPA officials said, the federal agency “will propose and promulgate appropriate human health criteria for waters in Indian lands in Maine.”

According to Manahan, the 1980 Maine Indian Claims Settlement Act explicitly states that water quality standards will be determined by the state and that the same set of standards will apply to all Maine residents. The EPA ruling, he added, contradicts the act by calling for a separate set of standards in tribal waters.

Manahan also said the Penobscots’ estimates for the amount of fish that they consume daily are suspect and may be just a distraction from their true objective. What the tribe really wants, he said, is to establish itself as a separate entity within the state of Maine.

“This may just be a mechanism by them to overturn the Settlement Act,” Manahan said. “That’s what I think their ultimate goal is.”

Francis said Tuesday that the EPA decision supports the tribe’s claim that its territory as approved in the 1980 Maine Indian Claims Settlement Act includes all sections of the Penobscot River from the Milford Dam to Millinocket. The tribe’s lawsuit against the state was filed in 2012 after then-Attorney General William Schneider issued an opinion that the Penobscots’ territory was limited to islands in the river and does not extend to the river itself.

“We’re extremely delighted [with the EPA ruling],” Francis said, adding that the tribe’s traditional identity as a community that sustains itself with fish caught in the river is at stake.

Francis said that the water quality along the river has been “irresponsibly degraded” for more than a century by pollution from other, nontribal communities that have sprouted up along the river and from industrial uses that have been built along its banks. By demanding higher human health standards along tribal sections of the river, he said, EPA is affirming the Penobscots’ right to maintain their traditional presence and uses along the river.

“What matters in the end is what those standards are going to be,” Francis said, adding that it doesn’t matter if they are set by DEP, EPA or the tribe, as long as they are sufficient to protect the health of tribal members exercising their federally protected fishing rights.

“The goal and objective here is to protect a culture and waterway that is essential to who we are,” Francis said.

The Penobscot chief added Wednesday that the EPA ruling will benefit every community along the river, not just the tribe. He said the tribe and other river communities should be able to coexist and cooperate to maintain higher water quality standards for the water body.

“We know of no reason why cleaner water to support our sustenance fishery would be incompatible with the ability of wastewater dischargers on the river to obtain [discharge] permits,” Francis said in an email. “We have always believed that the interests of our tribe can coexist with the interests of our neighbors on the river. Our problem has been that, until now, no one has recognized our interests.”

In a brief prepared statement, Timothy Feeley, spokesman for the state attorney general’s office, said Tuesday that the EPA issued its decision after it was sued by the state, separately from the tribe’s lawsuit, for saying that the state’s water quality standards were insufficient in some areas but not specifying where in Maine those areas were.

“It is unclear, as a practical and legal matter, what the effect of the EPA’s unprecedented action will be,” Feeley said. “[The attorney general’s office] will seriously weigh the prospect of an appeal based on the impracticability of a possible double standard for Maine waters and based on an apparent misreading of the Maine Settlement Act.”

Karl Wilkins, spokesman for Maine Department of Environmental Protection, declined on Tuesday to comment on the EPA ruling.

“We’re still in the process of reviewing it,” Wilkins said. “It’s a very complicated issue.”

The Passamaquoddy Tribe, though not a party to the Penobscots’ pending lawsuit against the state, issued a statement Friday saying that the EPA decision is a recognition of the tribes’ rights to manage the natural resources on which its members depend, including its right to fish for food and to protect the species its members consume.

“We are encouraged by the EPA’s decision to recognize the importance of sustenance fishing to the vitality of the Wabanaki people,” Fred Moore III, chief of the Passamaquoddy community at Pleasant Point, said in the statement, referring to all of Maine’s Indian tribes. “Access to healthy fisheries has been and continues to be critical to the identity and survival of the Passamaquoddy Tribe.”

A particular point of contention between the Passamaquoddys and the state has been the state’s regulation of the elver fishery, which has become lucrative in recent years as the value of the baby eels has increased significantly. The Passamaquoddys have repeatedly and publicly feuded with Maine Department of Marine Resources over the extent to which the state agency can regulate the tribe’s elver fishery.


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