On May 12, 2017, Maine’s U.S. District Court granted a request by the U.S. Environmental Protection Agency (“EPA”) for a 90-day stay in a suit by the State of Maine challenging EPA’s efforts to impose stricter water quality standards (“WQS”) in Maine tribal waters.  EPA requested the stay in order to review certain standards put in place by EPA on December 19, 2016 under President Barack Obama’s administration and to determine whether those standards should be reconsidered or withdrawn altogether.

This request by EPA, made in response to a February 27, 2017 administrative petition to EPA by Maine Governor Paul LePage, is consistent with other recent EPA efforts to take a fresh look at eleventh-hour regulatory actions undertaken by the Obama administration.

Maine and EPA have disputed Maine’s jurisdiction over tribal waters since 2004, when Maine sought review of EPA’s decision that Maine had no jurisdiction to regulate discharges of pollutants from tribal wastewater treatment facilities.  In a 2007 decision, the First Circuit concluded that Maine’s position was correct.  EPA then began limiting its approvals of Maine water quality standards to non-tribal waters only.  EPA’s actions triggered a 2014 suit by Maine seeking a declaration that the environmental regulatory jurisdiction of the Maine Department of Environmental Protection (“DEP”) applies uniformly throughout the state, including tribal lands. 

In a February 2, 2015 letter, EPA conceded that Maine does have state-wide jurisdiction, but nonetheless disapproved Maine human health water quality criteria for Indian waters because they did not reflect a designated use of tribal “sustenance fishing” for Maine’s Indian waters (a use not previously enunciated or evaluated for Maine waters).  Based on the rationale in its February 2, 2015 letter, EPA published its “Proposal of Certain Federal Water Quality Standards (“WQS”) Applicable to Maine” on April 20, 2016, which was finalized in December 2016.

The February 27, 2017, petition requested that EPA reconsider and withdraw these water quality decisions.  The petition asserts Maine “has statewide environmental regulatory jurisdiction and authority, including all Indian waters and lands” under the 1980 Maine Indian Land Claims Settlement Act and related laws (the “1980 Acts”).

In the petition, Maine maintains that EPA created the new designated sustenance fishing use based on a “convoluted” interpretation of the 1980 Acts that “turns those acts and the intent of Congress on their head” by ignoring Maine’s statewide Clean Water Act jurisdiction and relying on studies that do not reflect current (or even 1980) tribal fish consumption rates.  The Maine petition maintains that any federal water quality standards must be created through rulemaking and not through EPA interpretations of state law that do not follow the procedural requirements of the Clean Water Act.

It is not clear where EPA is going to end up following its review.  The Agency may dig deeper into the legal foundation for the rule and revisit its interpretation of the 1980 Acts, it may re-evaluate the rule’s scientific and technical underpinnings (including the unique exposure assessment utilized to support the “sustenance fishing” use designation), it may consider withdrawing the rule in light of President Trump’s Executive Order calling for federal agencies to eliminate two rules for every new rule promulgated, or it may simply continue to defend its position and the December 2016 rule. 

Not every regulatory action taken by EPA in the final weeks of the Obama administration need be viewed with a jaundiced eye.  In light of the express provisions of the 1980 Acts regarding Maine jurisdiction and the novel approach taken by the Agency in establishing a new designated use in Maine waters, however, the December 2016 Maine WQS rule clearly qualifies for closer examination.