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AUGUSTA, Maine — After years of disagreement, the state of Maine, tribes and the federal government appear to agree that a long-running lawsuit over water quality standards is nearing its end, though procedural disagreements stand in the way.
The lawsuit over who has the authority to regulate waters on tribal lands used for cultural sustenance fishing, has been paused for a year, while the EPA reconsidered a February 2015 decision to approve Maine’s water standards everywhere except on Indian territories, which the state said created regulatory uncertainty.
It looks like all parties are close to getting what they want. The EPA approved in November Maine’s sustenance fishing rules supported by the tribes. The new rules were seen as a possible path to ending the yearslong court case earlier this year and part of Democratic Gov. Janet Mills’ efforts to improve the state’s rocky relationship with its tribes.
The EPA proposed in November to withdraw its 2015 decisions and approval of certain parts of a 1980s law allowing the state to treat tribes largely like municipalities — though the tribes have never ceded their federal rights — related to inland waters of the Penobscot Nation and the Passamaquoddy Tribe’s reservations, according to a report filed in U.S. District Court.
Parties disagree on the next steps, however. Attorneys for the Houlton Band of Maliseet Indians and the Penobscot Nation, intervenors in the case, have asked for a delay on the EPA’s reconsideration of its previous ruling to continue until Maine’s finalizes new water quality criteria. Rulemaking must be finished by next March.
Attorneys for the tribes argued in October that allowing the EPA to withdraw prior decisions before Maine finishes rulemaking will create “regulatory uncertainty” and undermine any regulatory framework the state and the tribes have agreed on. They said taking action now does not give the tribes enough time to review the EPA’s proposals.
The state and the EPA countered in November that the EPA needs to revisit prior decisions to address other issues at stake in the lawsuit, including a disagreement over sustenance fishing rules that apply to waters other than the tribal waters the 2015 decision regulates.
While attorneys for the state note it’s unclear what the EPA will do after it withdraws previous decisions, they argued the proposal process is the “proper course” to resolve the dispute. The comment period was extended by 30 days and will end Jan. 6, 2020.
Water quality standards around tribal lands previously allowed for the safe consumption of 8 ounces of local fish per week. Maine new law will update its standards to allow for the consumption of 7 ounces of fish daily to acknowledge cultural fishing practices.
The parties met Monday to discuss prolonging the stay in U.S. District Court in Portland. The stay of the case has been temporarily extended until Judge Jon Levy decides whether to extend it further.