Public Invited to Weigh in On Tribal Waters Dispute

Aug 6, 2014

The Penobscot Indian Nation is inviting the public to a hearing tonight to provide input on proposed new water quality standards for tribal waters. It's the first time the tribe has ever petitioned the federal Environmental Protection Agency for such standards. Thee move has raised concerns from the state of Maine, which is embroiled in a lawsuit against the EPA over its handling of water quality issues on Indian territory.

The proposed standards apply to a wide territory and could affect wastewater and stormwater discharge, two dozen dams, dozens of transfer stations, oil storage facilities and small businesses on tribal land. Chief Kirk Francis says the standards have been in the works for more than a decade.

"I think people are going to find that the tribe has taken a very sane approach here," Francis says. "Our goal is not to be disruptive. Our goal is to work cooperatively with other stakeholders and we're quite confident that we can do that."

Francis says it's only coincidental that the tribe's public hearing on the proposed standards was announced around the same time the state filed a lawsuit against the EPA, asserting its authority to establish and revise water quality standards for all waters within the state under the Clean Water Act. The lawsuit was filed last month.

"Many of the standards are very similar, if not identical, to what the state has in place in other waters throughout the state," says John Banks, the director of the Penobscot Nation's Department of Natural Resources. "But the state of Maine doesn't really recognize the unique cultural and traditional uses that the tribe intends to protect with these standards."

Those uses include sustenance fishing, for example. And tribal leaders say the EPA is bound by law to protect the resources of Indian tribes and to support and enhance programs that build on cultural identity.

But when it comes to oversight of water quality standards, Maine Department of Environmental Protection Commissioner Patty Aho says the state's jurisdiction is clear. "We think that it is very clear that it the state of Maine and the DEP that has the authority to issue and establish water quality standards for the waters of the state of Maine."

Aho says it's been clear since the tribe gave up certain rights under the historic Land Claims Settlement with the state in 1980 and made clearer still since then. "It's been clear through different acts of Congress," she says. "Even the U.S. EPA, in documents in 1993, have made it clear that it's the state of Maine through the DEP that has the authority to establish the standards."

In addition, 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.

What's troubling, says Aho, are the number of questions raised by the tribe's proposal if the EPA goes along. Will discharge license holders be subject to two sets of standards, for example, one established by the state and one by the tribe? And how will the standards affect other current activities on the waters such as hydropower?

Curt Spaulding, the regional administrator for EPA declined to go into specifics because of the state's pending litigation. But following a meeting in Portland on power plant emissions, Spaulding did have this to say: "I'm very conscientious of the challenge here in Maine. And I'm also very aware of my trustee responsibilities when it comes to the Maine tribes. As a federal agency I have a responsibility. I'm going to take it very seriously."

In a private agreement between the Penobscot Nation and the EPA signed in 1999, 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. Both parties also agreed to keep their communications confidential to the greatest extent possible.

Aho says it's an agreement that has only recently come to light. "I was surprised and disappointed that there would be that kind of document," she says.

Tribal leaders say they may alter some of the proposed water quality standards depending on the feedback they get. Written comments are being accepted until Aug. 11.