00-16365. State Program Requirements; Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Maine

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice; extension of public comment period on Application for Approval of the Maine Pollutant Discharge Elimination System.

SUMMARY:

The State of Maine has submitted a request for approval of the Maine Pollutant Discharge Elimination System (MEPDES) Program pursuant to section 402 of the Clean Water Act. If EPA approves the MEPDES program, the State will administer this program, which regulates the discharges of point sources to navigable waters, subject to continuing EPA oversight and enforcement authority, in place of the National Pollutant Discharge Elimination System (NPDES) program now administered by EPA in Maine. On December 30, 1999 (64 FR 73552) EPA published a notice requesting comments on the Maine application by February 29, 2000. Today, EPA is extending the comment period on the State's request until July 28, 2000 solely for the purposes of taking comment on the question of whether EPA should approve the State's application to administer its program in the lands or territories of the Indian Tribes in Maine. EPA will determine whether to approve or disapprove the State's application as to Indian lands and territories and as to all other areas in the State of Maine after considering all comments it receives.

DATES:

EPA Region I will take written comments solely on the question of whether EPA should approve the State's application to operate its program in the lands or territories of the Indian Tribes in Maine through July 28, 2000 at its office in Boston, MA. EPA requests that copies of such written comments also be provided to the Maine Department of Environmental Protection (MEDEP).

ADDRESSES:

Written comments must be submitted to: Stephen Silva, USEPA Maine State Office, 1 Congress Street—Suite 1100 (CME), Boston, MA 02114-2023. EPA requests that a copy of each comment be submitted to: Dennis Merrill, MEDEP, Statehouse Station #17, Augusta, ME 04333-0017.

Copies of documents Maine has submitted in support of its program approval request may be reviewed during normal business hours, Monday through Friday, excluding holidays, at:

EPA Region I, 11th Floor Library, 1 Congress Street—Suite 1100, Boston, MA 02114-2023, 617-918-1990 or 1-888-372-5427; and MEDEP, Ray Building, Hospital Street, Augusta, ME.

FOR FURTHER INFORMATION CONTACT:

Stephen Silva at the address listed above or by calling [phone] or Dennis Merrill at the address listed above or by calling [phone]. The State's submissions (which comprise approximately 128 pages in the application, 382 pages in the appendix, and 11 pages in a supplement with an additional 688 pages of attachments) may be copied at the MEDEP office in Augusta, or EPA office in Boston, at a cost of 15 cents per page. A copy of the entire initial submission (not including the supplement) may be obtained from the MEDEP office in Augusta for a $20 fee.

Part of the State's program submission and supporting documentation is available electronically at the following Internet address: http://www.state.me.us/​dep/​blwq/​delegation/​delegation.htm

SUPPLEMENTARY INFORMATION:

Tribal Issues On Which EPA Is Taking Further Comment

In the original notice inviting public comment on Maine's program application, EPA specifically asked for comment on the State's assertion that it has authority under the Maine Indian Claims Settlement Act, 25 U.S.C. 1721-1735 (MICSA), to administer its NPDES program in the lands and territories of the Maine Indian Tribes, which are the Houlton Band of Maliseet Indians, the Aroostook Band of Micmacs, the two governments of the Passamaquoddy Tribe, and the Penobscot Nation. In addition, on October 21, 1999, EPA formally requested a written legal opinion from the Department of the Interior (DOI), Office of the Solicitor on the extent of the State of Maine's jurisdiction over the regulation of water quality in Indian country in light of the Maine Indian Claims Settlement Act. On May 16, 2000, DOI provided EPA with the Solicitor's legal opinion (the DOI opinion). EPA has placed a copy of this opinion in its rulemaking record and has made the opinion available to the public. EPA believes the public should have an opportunity to comment on the State of Maine's application to administer its MEPDES program in the lands and territories of the Tribes in Maine in light of the DOI opinion.

EPA is opening its record solely for the purposes of taking comment on the question of whether EPA should approve the State's application to administer its program in the lands or territories of the Tribes in Maine, because we believe our record would benefit from further comment by interested parties. EPA is not opening its record for comment on other issues, which the Agency believes have already been thoroughly aired.

Jurisdiction in Passamaquoddy and Penobscot Indian Territory

The DOI opinion concluded that the regulation of water quality is an “internal tribal matter” under MICSA over which the State of Maine does not have jurisdiction in the Passamaquoddy and Penobscot Indian Territories. As noted in the DOI opinion, MICSA incorporates the terms of the Maine Implementing Act, 30 M.R.S.A. sections 6201-6214 (MIA), when describing the jurisdictional relationship between the State and the Passamaquoddy Tribe and Penobscot Nation. 25 U.S.C. 1725. The MIA provides that “Except as otherwise provided in this Act, all Indians, Indian nations, and tribes and bands of Indians in the State and any lands or other natural resources owned by them, held in trust for them by the United States or by any other person or entity shall be subject to the laws of the State and to the civil and criminal jurisdiction of the courts of the State to the same extent as any other person or lands or other natural resources therein.” 30 MRSA section 6204. In section 6206, the MIA specifically provides that with regard only to the Passamaquoddy Tribe and the Penobscot Nation that “internal tribal matters, including membership in the respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income shall not be subject to regulation by the State.” MICSA and MIA contain other provisions that provide for the exercise of tribal authority separate and distinct from the civil and criminal jurisdiction of the State. Commenters may wish to read the DOI opinion, which explains the basis for its conclusion.

EPA notes that if it adopts DOI's analysis and denies the State application as to Passamaquoddy and Penobscot Indian Territory, EPA would retain the authority to administer the NPDES program in these Territories. If EPA were to deny Maine's application as to the Indian Territories, the next question becomes where would the State's program apply and where would EPA retain permitting authority? EPA recognizes that facilities that need a discharge permit would need to know whether to apply or reapply to the State or EPA for an NPDES permit. Understanding that jurisdictional boundaries are primarily an intergovernmental issue of concern of the Tribes, the State, and the federal government, EPA seeks comment on the geographical extent of Passamaquoddy and Penobscot Indian Territories.

Other Issues

Regardless of what areas it may approve the State of Maine to administer, EPA would retain significant oversight authority. EPA would exercise such oversight responsibilities consistent with the federal government's trust responsibility to federally-recognized Indian Tribes. To that end, EPA intends to negotiate a Memorandum of Understanding with each of the Maine Tribes outlining how EPA will consult with all of the Tribes to understand their concerns about administration of the NPDES program under the Clean Water Act. EPA has placed a proposed draft of this Memorandum in the docket available to the public and will be consulting with the Maine Tribes on the terms of the Memorandum. EPA notes that the draft Memorandum addresses potential water quality effects on all of the Tribes in Maine. This form of the draft is not intended to suggest that EPA has prejudged whether EPA will approve Maine to administer its program in the Territories of the Passamaquoddy Tribe and the Penobscot Nation. The memorandum is drafted broadly to address all of EPA's oversight responsibilities in the State. A Tribe may have concerns not only about the State's administration of the program within tribal lands, but also about the effects of state administration of its program in state waters that are up-stream from, or that otherwise affect water quality in, tribal lands and territories.

Whatever decision EPA makes the Agency will have to address practical implementation issues. EPA seeks comment on those issues.

Other Federal Statutes

Nothing in this extension of the public comment period changes any of the analyses or findings concerning other federal statutes which EPA made in its notice of December 30, 1999. See 64 FR 73554-73555.

Authority: This action is prepared under the authority of section 402 of the Clean Water Act as amended, 42 U.S.C. 1342.

Dated: June 20, 2000.

Mindy S. Lubber,

Regional Administrator, Region I.