May 25, 2017 Article

Environmental Alert: EPA Reconsidering Obama-Era Water Quality Standards It Set for Maine

Environmental Alert

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2016 under President Barack Obama’s administration and to determine whether those standards should be reconsidered or withdrawn altogether.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.

Firm Highlights


Matthew C. Worthen Joins Preti Flaherty’s Real Estate and Finance Practice Group

Preti Flaherty is pleased to welcome Matthew C. Worthen as a Director in the firm’s Real Estate and Finance Group. Worthen previously served as a Shareholder and Chair of the Real Estate Group at...


Preti Flaherty Welcomes Trusts and Estates Attorney Dianne Ricardo to the Firm

Preti Flaherty is pleased to announce that Dianne Ricardo has joined the firm’s Trusts & Estates Practice Group. Based out of the firm’s Concord, New Hampshire office, Dianne focuses her practice on comprehensive estate...


Supreme Court Clarifies Constitutionality of Outdoor Camping Bans

Earlier today the United States Supreme Court issued its decision in the  City of Grants Pass, Oregon v. Johnson et al. , overturning a 2019 decision from the 9 th  Circuit Court, which held...

Press Coverage

Looking to 'new generation,' Preti Flaherty promotes 42-year-old litigator to managing partner

Effective July 15, Michael S. Smith has been named managing partner of the law firm Preti Flaherty. Michael succeeds David Van Slyke, who will resume his role as chair of the firm’s environmental practice...


Preti Flaherty Names Michael S. Smith as Managing Partner

Preti Flaherty announced this week the election of Michael S. Smith as the firm’s new Managing Partner, effective July 15, 2024. He succeeds David Van Slyke, who is resuming his role as chair of...


Compliance for Two—What Employers Need to Know about the Newly Effective Final Regulation for the Pregnant Workers Fairness Act

On June 18, 2024 the final rule from the U.S. Equal Employment Opportunity Commission (EEOC) implementing the Pregnant Workers Fairness Act (PWFA) takes effect, clarifying employers' obligations under this landmark legislation. Effective since June 27...


Copyright Litigation: Substantial Similarity

In copyright litigation, courts assess substantial similarity to determine if alleged copying constitutes infringement. This evaluation involves comparing works across different categories using objective measures and subjective impressions to weigh similarities and dissimilarities. Even when...

Press Coverage

Portland law firm Preti Flaherty unveils renovated HQ space

Preti Flaherty has remodeled its Portland headquarters, spanning three floors and 41,000 square feet at One City Center. The update features hybrid workstations, collaborative areas, and an internal staircase that integrates flexible conference and...


10 Preti Attorneys, 6 Practice Groups Honored in National Rankings

Ten Preti Flaherty attorneys and six practice groups have been selected by Chambers USA for inclusion in their premiere annual list of America’s leading lawyers. Preti is recognized for excellence in the practice areas...


What Is the Affirmative Relief Announcement?

On June 18, 2024, President Biden announced  a series of immigration actions  using the authority granted to him by our existing immigration laws. These actions will help certain undocumented individuals in the United States...