Federal environmental regulators are imposing tougher water-quality standards aimed at protecting the health of Maine tribal members who eat large amounts of wild-caught fish.
But Maine Attorney General Janet Mills and other opponents say the new standards are unlawful and could drive up both costs and regulatory uncertainty for some riverfront businesses and towns.
For the first time, the U.S. Environmental Protection Agency is basing water-quality standards on certain waterways in Maine on the “sustenance fishing” rights guaranteed to members of the state’s four federally recognized Indian tribes. The standards finalized this month are an attempt to lower water pollution to levels that would allow tribal members to safely exercise those rights.
“It is a significant step in the right direction to address some of the contamination issues in the Penobscot River and other rivers in Maine that are preventing people from safely consuming the fish that they catch,” said John Banks, director of the Penobscot Nation’s Department of Natural Resources. “We are pretty excited about it.”
But Mills and industry representatives contend the EPA is only causing confusion that will harm the state’s economy because it is not clear what waters would be subject to the higher quality standards.
“It is really going to impact people economically,” said Bill Taylor, an attorney representing municipalities and industries that discharge wastewater into rivers.
EPA OVERSTEPPING, AG’S OFFICE SAYS
Mills’ office also contends the EPA is overstepping its legal authority by trying to usurp the landmark 1980 settlement between the state, tribes and federal government.
“The rule is inconsistent with both Maine’s Indian Settlement Acts and the Clean Water Act,” the Attorney General’s Office said in a written statement. “EPA’s rush to promulgate a rule now unfortunately only creates more uncertainty for Maine towns and businesses that work hard to comply with their responsibilities under the Clean Water Act.”
The new rules significantly increase the daily intake of fish in order to calculate water-quality standards for members of the state’s four Indian tribes: the Passamaquoddy Tribe, Penobscot Nation, Houlton Band of Maliseet Indians and Aroostook Band of Micmacs.
The Maine Department of Environmental Protection’s current fish consumption rate of 32.4 grams per day is applied to all Maine residents, including tribal members. The EPA’s new standard, however, is based on a consumption rate of 286 grams per day for those involved in sustenance fishing.
The new standards are part of a years-long regulatory and legal battle between the state and the federal government over tribal rights on Maine’s rivers.
Last December, Mills’ office prevailed in a federal case involving whether the Penobscot Nation’s reservation boundaries extended “from bank to bank” of the Penobscot River – as the tribe and federal government had asserted – or only extended to the shorelines of tribal islands. The judge reaffirmed tribal members’ sustenance fishing rights throughout the main stem of the Penobscot.
In February 2015, the EPA ordered the state to tighten its water-quality standards for potential toxins such as mercury and arsenic on waters within tribal lands. While Mills’ office claims that EPA decision violates the 1980 Maine Indian Claims Settlement Acts, federal officials say Maine’s general standards are inadequate to protect tribal members on reservations engaged in sustenance fishing.
Mills turned to the federal courts to try to halt the EPA’s action. That case is pending in U.S. District Court in Portland. In the meantime, the EPA pushed forward with finalizing the new rules for Maine.
DISPUTE OVER CONSUMPTION METHODOLOGY
“These water-quality standards take into account the best available science, including local and regional information, as well as applicable EPA policies, guidance and legal requirements, to protect human health and aquatic life in Indian lands and throughout the state of Maine,” the EPA said in a written statement.
Mills has accused the EPA of relying on “vague historical anthropological estimates” rather than more recent tribal fish consumption data to come up with the 286 grams-per-day standard. Mills also noted that the EPA routinely approved the state’s quality criteria for all waters for decades, and said the 1980 agreement clearly gives the state the right to treat all Maine people – including tribal members – equally with regard to water quality.
“Maine has some of the highest water-quality standards in the nation, and this office has been fighting for years at the federal level to put in place tough rules that will prevent mercury from coal-fired power plants to our south from poisoning fish in our lakes and streams,” Mills’ office said in a written statement. “That’s an important regulation that will have a real impact. EPA’s new water-quality rule for Maine, on the other hand, offers little in the way of additional environmental protection, but instead creates regulatory confusion because the agency refuses to identify exactly where in the state it applies.”
It was unclear what impact the new standards could have on industries or municipalities that discharge wastewater into rivers. Taylor, the attorney representing municipalities and industries, said the EPA rules clearly apply to three rivers – the Penobscot, the St. Croix and the Meduxnekeag in Aroostook County – but that the agency could apply the standards more broadly if other rivers are deemed to be locations for sustenance fishing.
The EPA acknowledges in its final proposal that industries, stormwater management districts or publicly owned wastewater-treatment facilities that discharge into rivers “could be indirectly affected by this rulemaking.”
THREAT TO BAILEYVILLE PAPER MILL
Taylor said one of the bigger impacts could be felt by Woodland Pulp in Baileyville, which has added production, new tissue-manufacturing machinery and jobs even as other paper or pulp mills shut down across the state. Taylor noted that Woodland Pulp received its wastewater discharge permits based on the current water-quality standards.
“Now the EPA is making a dramatic change to those levels for something that we believe has no rationale basis and no benefit,” said Taylor, an attorney at Pierce Atwood in Portland. “That means they are going to have to spend money – significant dollars – to comply with the new standards.”
The new standards will take effect 30 days after their publication in the Federal Register later this month. Depending on the timing, the rules could become effective before President-elect Donald Trump – a harsh critic of what he sees as EPA over-regulation of businesses – takes office on Jan. 20.
The Attorney General’s Office did not comment Monday on whether the state will appeal the EPA actions to the U.S. District Court, although Taylor said the municipalities and businesses he represents would be likely to join any appeal. The state’s lawsuit against the EPA also could affect the standards.
But the Penobscot Nation’s John Banks said he hopes the state will shift gears now that the rules are final.
“I would be hopeful going forward that the state of Maine will be more concerned about the welfare of its citizens who want to eat fish in a healthy way rather than spending money to fight the tribes and the EPA on these matters,” he said.
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