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Maine Sues EPA Over Water Quality Assessments on Tribal Lands

In a rare, joint action, a member of the LePage administration has teamed up with the Maine attorney general to file a federal lawsuit against the U.S. Environmental Protection Agency. Filed in U.S. District Court in Bangor, the lawsuit says the agency has failed to approve state water quality standards under the Clean Water Act.

The focus is on unspecified waters that may be on Indian lands. In the complaint against U.S. EPA administrators in New England and Washington, Maine Attorney General Janet Mills and Department of Environmental Protection Commissioner Patty Aho assert that Maine has the primary authority to establish and revise water quality standards for all waters within the state under the Clean Water Act.

They also assert that the EPA has the duty to approve or disapprove of them in a timely manner. And for many years, that's what's taken place for most of the state. But when it comes to Maine waters within Indian territories, Tim Feeley says the agency has dragged its feet. Feeley is a spokesman in the Maine Attorney General's Office.

"It's been going on for about 10 years that they've approved Maine's water quality standards for the state generally, but have taken no action for really unspecified waters that the EPA claims are within Indian territories," Feeley says.

According to the lawsuit, when the state has generally sought new or revised water quality standards in recent years, EPA has included language that makes clear that any such approval "does not extend to waters within Indian territories and lands."

Feeley says there is no reason to make such a distinction. In 2007, the federal First Circuit Court of Appeals held that Maine’s environmental regulatory jurisdiction applies uniformly throughout Maine, including waters within Maine Indian territories. But Feeley says for more than a year the state has requested that the EPA identify the affected Maine waters that it believes are exempt from state standards and to explain what standards the EPA believes do apply to those waters.

He says the federal agency has declined to answer the questions. "You know, you could construe their argument to say that nothing applies statewide," Feeley says. "And that's a real concern for everybody - that without certainty and clarity, everybody in the state of Maine is kind of flying blind."

A spokesperson for the regional EPA administrator did not respond to a request for comment for this story. But a confidential 1999 environment agreement between the Penobscot Indian Nation and the EPA shows that the two parties outlined a process and goal of building trust, respecting Sovereignty of the Nation and putting a high priority on "tribal cultural concerns such as subsistence needs...and uses of natural resources" in EPA decision-making processes.

In the agreement da,ted July 27, the parties agree to protect "to the greatest extent permitted by law, communications in their possession which have been exchanged between the U.S. EPA..and the Nation."

Calls and emails to the Penobscot Nation seeking comment for this story were not returned by airtime. However, a notice on the tribe's Web site indicates that a public hearing will be held on Aug. 6 on the Penobscot Nation's own draft water quality standards.

The state's lawsuit seeks a court declaration that, despite the EPA’s failure to act on Maine’s revisions to its water quality standards, those revisions are now deemed approved and in effect throughout Maine.