Maine Challenges EPA’s Double Standard for Maine’s Water Quality Protections

AUGUSTA – October 12, 2015 – (RealEstateRama) — For over ten years, under governors of different political persuasions, the federal Environmental Protection Agency refused without reason to fully approve Maine’s historically high water quality standards. Today Maine amended its pending federal lawsuit against EPA, transforming it from one forcing EPA to act on Maine’s standards to one challenging EPA’s unlawful actions in response to Maine’s lawsuit. EPA has violated state and federal law by creating a double standard with respect to Maine’s water quality protections, which are unquestionably some of the highest standards in the country.

Under its new double standard, EPA asserts that Maine’s water quality protections, when applied to unspecified tribal waters, must be based on factors such as fish consumption rates and risk levels that are different from those already approved by EPA that are used for the entire state. This differential treatment violates both the comprehensive 1980 Maine Indian Claims Settlement Acts and the Clean Water Act. Under the Settlement Acts, all Mainers and Maine waters are treated the same for environmental purposes. Maine’s stringent water standards uniformly protect all Maine citizens, including members of Maine’s tribes.

The same principle applies to the ownership of the Penobscot River, which is the subject of separate pending federal court litigation and which will be argued in federal court next week. Under the Settlement Acts, access to the Penobscot River and Maine’s high water quality standards are for the benefit of all Mainers. The two federal actions reflect attempts to revisit the 1980 Settlement Acts, which earned the tribes federal recognition and a stream of revenue to the tune of millions of dollars each year for health care, law enforcement, education and government administration, among other things. With more than eighty million dollars (app. $230 million in today’s dollars) in proceeds from the settlement, Maine’s tribes acquired approximately 300,000 beautiful and productive acres throughout the state. In exchange, among other things, the tribes agreed to uniform state natural resources jurisdiction over all land and waters in the state, something the Congress, the legislature, the tribes and EPA all recognized as reasonable and as critical to the settlement.

EPA’s recent actions, rather than help the current situation with the tribes, unfortunately has created divisions. In the river litigation, the State discovered that as far back as 1999, EPA has been carrying on secret correspondence with tribal leaders and has gone so far as to sign a written “confidentiality agreement,” promising to use EPA’s “best efforts to protect all such communications, including those that predate this agreement that are requested under the Freedom of Information Act.”

These secret negotiations and EPA’s new double standard fly in the face of a major 2007 decision by the First Circuit Court of Appeals, which affirmed the state’s right to apply the environmental protections inspired by Senator Edmund S. Muskie and Senator George Mitchell, regardless of the ownership of a specific property or the shores of a specific waterway. That decision, State v. Johnson, upheld one of the most important principles of the comprehensive 1980 Indian Claims Settlement — the right and responsibility of State government to regulate the environmental quality of Maine’s lakes, streams, rivers and lands. The federal government did not appeal that decision to the United States Supreme Court, so it remains the law of the land.

After the Johnson decision, EPA, without giving any reason, simply refused to approve Maine’s water standards for unspecified tribal areas, despite repeated requests from the State to do so dating back to the tenure of DEP Commissioner Littell. EPA has also not answered basic questions about what standards apply in tribal areas, and has even suggested that there are no water quality standards at all for those waters. To the state, this aspect of EPA’s new double standard represents a grave environmental concern. It would shock Mitchell and Muskie, and it should shock all Mainers, to learn that EPA thinks there are no standards in place to protect these waters.