by the BDN editorial board
Bangor Daily News editorial
Unfortunately, a water quality dispute involving state and federal regulators and the state’s Indian tribes is moving further away from resolution. The uncertainty over water quality standards has gotten so bad that Gov. Paul LePage is threatening to quit a system that allows the state to issue and monitor compliance with federal permits.
We understand the governor’s frustration with slow and contradictory decisions from the Environmental Protection Agency, but giving up the state’s authority to issue discharge permits is not the right solution.
If the state were to give up its authority, it would no longer have the ability to monitor compliance with the wastewater discharge permits issued to treatment plants, paper mills and others. It also would increase regulatory uncertainty for businesses and municipalities because they would deal with EPA officials instead of the Department of Environmental Protection staff they have worked with for years, Nick Bennett of the Natural Resources Council of Maine told MPBN earlier this month. Matt Manahan, an attorney who represents many permit holders along the Penobscot River, shared those concerns.
The DEP’s outgoing commissioner, Patricia Aho, encapsulated the LePage administration’s frustration in an Aug. 31 letter she sent to the EPA.
“It is now clear to us that the only water quality standards that would be acceptable to the EPA are those imposed by the EPA,” she said in the letter.
“The imposition of federal standards on the state is de facto federalization of the program,” she said.
This “de facto federalization” runs counter to nearly 15 years of EPA and court decisions.
The state DEP was given authority by the EPA under the Clean Water Act to issue federal wastewater discharge permits in 2001, except in Indian territory, where the EPA said it needed more time to study what to do. Maine’s Indian tribes had objected to the state’s application for this authority, arguing that state rules were too lax.
Two years later, the EPA decided that the federal government would retain jurisdiction over wastewater treatment plants while the state would control the issuance of permits for other discharge sites, such as paper mills. Both the tribes and state sued the EPA. The state wanted full permitting authority; the tribes wanted EPA to have it.
A federal appeals court in 2007 rejected the tribes’ appeal of EPA’s delegation of authority to the state, concluding that the 1980 Maine Indian Land Claims Settlement Act gives the state unusual authority that supersedes tribal claims of sovereignty that would apply elsewhere in the U.S.
In February, the EPA reaffirmed the state’s authority to establish water quality standards for “waters in Indian lands.” But the agency then told the state that some of its water quality standards are not protective enough of tribal members.
State regulators were told they must rewrite some of the state’s water quality standards, dating from 2004 to 2013, for “waters in Indian lands” to ensure they are clean enough to allow tribal members to continue sustenance fishing. The tribes welcomed the decision.
But this appeared to set up an unworkable two-tiered system for permitting. In March, Attorney General Janet Mills said the state would challenge the EPA action in court. Weeks later, representatives of the Penobscot Nation and Passamaquoddy Tribe walked out of the state Legislature.
This impasse between the EPA and state, and the tribes and the state doesn’t benefit anyone. Instead, state, federal and tribal officials must find a way to move forward with a permitting program that protects water quality for tribal members and all Mainers. If the LePage administration removes itself from the clean water permitting and monitoring process this will hinder the common resolution that’s needed.
