The U.S. Environmental Protection Agency announced it is authorizing the State of Maine to issue and enforce federal water pollution control permits for all non-tribal facilities with waste water pipes discharging in or near tribal territories within the state. The decision follows EPA’s 2001 authorization of Maine to issue water permits for the areas of Maine not covering tribal lands.
EPA’s decision on whether to authorize Maine’s permitting program in tribal areas hinged on the 1980 federal Maine Indian Claims Settlement Act (MICSA), which established a unique relationship between the State of Maine and the Indian tribes within the state’s borders, expressly unlike the relationship between most state governments and federally recognized sovereign tribes. The act resolved the tribes’ claims to land within the state, while giving the state regulatory authority over tribal territory, except for "internal tribal matters."
EPA concluded that in MICSA Congress gave the state authority to regulate in the tribes’ territories where the impacts are felt substantially by non-Indians. Therefore, EPA decided that the state has the authority to regulate facilities with their operations largely outside of tribal land and where the water permit would have a substantial impact on non-Indians. Thus, EPA today authorized the state to issue permits for 19 facilities along the banks of the Penobscot River that were not included with the rest of the state in EPA’s 2001 authorization.
EPA decided, however, that discharges from two tribal sewage treatment plants, the Penobscot Nation’s facility on Indian Island and the Passamaquoddy Tribe’s facility at their Pleasant Point reservation, were internal tribal matters, as both facilities’ customers are all tribal members, the facilities are owned and operated by the tribes, and the discharges have minimal impacts in waters outside the tribes’ territories. EPA therefore did not authorize the state to issue permits for these two facilities, and EPA retained authority for these two permits. For other facilities that need permits in the future, EPA will work with the state and the tribes to determine on a case-by-case basis whether the EPA-approved state program applies, or whether EPA will issue permits. As a general rule, a non-Indian facility with most of its operations outside of tribal territory will be subject to the state’s program.
The authorization takes effect immediately, although permits issued by EPA will continue to be in force until the state issues permits. By law, EPA also retains oversight and veto authority over state-issued permits if they do not meet requirements of the Clean Water Act.
"This decision puts the argument over jurisdiction behind us and lets us all now move forward to protect these great rivers. EPA will continue to work with the state and the tribes to find solutions to the environmental issues on the Penobscot and St. Croix Rivers, and ensure that the Clean Water Act is being upheld," said Robert W. Varney, regional administrator for EPA’s New England Office. "This was a long process, involving extensive consultations and several attempts at reaching an agreement through negotiations. But we’ve now resolved the uncertainty around issuing these permits for all involved, including EPA, the state, tribes and the facilities."
"In this decision, we followed our best analysis of the law Congress passed establishing a unique relationship between the tribes and state government in Maine," added Varney. "It in no way represents a change in EPA’s approach towards regulation of Indian territories in any other state."
EPA has not yet made a decision on permitting authority in the territories of the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs. Under MICSA and a subsequent federal settlement act for the Micmacs, a different statutory legal relationship exists between the state and these tribes, and EPA is still analyzing the legal arguments surrounding their status. Currently, however, there are no facilities requiring federal discharge permits on the territories of either of these bands.
The federal Clean Water Act requires all facilities discharging to water bodies to obtain permits as part of the National Pollution Discharge Elimination System (NPDES). These NPDES permits are issued by the EPA, but under the act, if EPA determines that a state’s program is adequate, it can authorize a state to issue and enforce NPDES permits. If EPA authorizes a state program, EPA still retains the power to review permits issued by the state, and veto individual permits if the state’s permit does not meet the Clean Water Act’s requirements. EPA can also unilaterally take enforcement actions against facilities in violation of a state-issued NPDES permit.
Forty-four other states across the U.S. have received approval to issue NPDES permits from EPA, including three others in New England.