REGIONAL OFFICES 84 HARLOW ST. 2ND FLOOR BANGOR, MAINE 04401 TEL: (207) 941?30?0 FAX: {207) 9413075 415 CONGRESS STE, STE. 301 PORTLAND, Mm 04101 TEL: (207) 822-0260 FAX: (207) 82210259 JANET T. MILLS GENERAL STATE or MAINE TEL: (207) 6268800 OFFICE or THE ATTORNEY GENERAL TTY USERS CALL MAINE RELAY 711 14 ACCESS HIGHWM. STE. 1 CARIBDU, MAINE 04736 6 STATE HOUSE STATION TEL: 4963792 AUGUSTA, MAINE 043330006 FAX: (207) 4966291 March 17, 2015 By certi?ed mail Gina McCarthy, Administrator U.S. Environmental Protection Agency Of?ce of the Administrator, Mail Code 1101A 1200 Avenue, NW Washington DC 20460 Eric Holder, Attorney General U.S. Department of Justice 950 Avenue, NW Washington DC 20530 Re: 60?Day Notice of Maine?s Intent to Sue EPA Over Action Dated February 2, 2015 Dear Administrator McCarthy and Attorney General Holder: By this letter, the State of Maine (?Maine?) hereby provides notice of its intent to sue the United States Environmental Protection Agency and/or the United States over recent action dated February 2, 2015, which, among other things, unlawfully disapproves many of Maine?s water quality standards. action also unlawfully usurps Maine?s role in promulgating such standards under the Clean Water Act, and creates a two ~tiered water quality regulatory system in violation of the Maine Indian Land Claims Settlement/101?, 25 U.S.C. 1721 et seq. and the Act to Implement the Maine Indian Land Claims Settlement Act, set forth in Maine law at 30 MRS. 6201 et seq. (collectively the ?Settlement Acts?). - In 1980 the Federal Government, Maine, and several Maine Indian Tribes negotiated a comprehensive settlement of Indian land claims to an area consisting of approximately two? thirds of Maine?s land mass. Congress approved that settlement in MICSA, which also rati?ed and con?rmed MIA. Together, these Settlement Acts create and de?ne a nationally unique state? tribal relationship, and unambiguously con?rm Maine?s regulatory authority over Indian lands and natural resourCes. 30 MRS. 6204; 25 U.S.C. l725(b)(1). Under the Settlement Acts, Maine?s authority to regulate environmental matters applies uniformly throughout the State, without distinction as to tribal and non-tribal lands and natural resources, and this premise is foundational to the Settlement Acts. When the First Circuit Court of Appeals was called upon to interpret and apply these provisions in a case involving refusal to recognize Maine?s authority to implement the Clean Water Act in Indian territory, the Court held that the Settlement Acts are ?about as explicit as is possible? in conferring environmental regulatory authority on the State over Indian lands and natural resources. Maine v. Johnson, 498 F.3d 37, 43 (1st Cir. - 2007). Under the Clean Water Act, Maine also has the responsibility to set water quality standards for all of its intrastate waters, including all waters in Maine?s Indian lands. In order to ensure that these standards are consistent with the Clean Water Act, Maine periodically submits its new and revised water quality standards to EPA for review and approval. 33 U.S.C. 1313. For many years, EPA approved Maine?s standards without distinction as to Indian lands and waters, as the Clean Water Act and the Settlement Acts each require. However, beginning around 2004, EPA for the ?rst time began inserting limiting language into its approval letters stating that those decisions did ?not extend to waters that are within Indian territories or lands.? Despite the First Circuit?s emphatic ruling against EPA in the Johnson case, and despite Maine?s repeated requests that EPA approve Maine?s water quality standards throughout the State, EPA continued to refuse to approve these standards for waters in Indian lands based on unfounded jurisdictional concerns. At roughly the same time, and without Maine?s knowledge, EPA also provided ongoing assistance to Maine?s tribes in pursuit of separate tribal water quality goals - in some cases pursuant to the terms of a con?dentiality agreement obligating EPA to use its best efforts to avoid freedom of access disclosures, which ensured that Maine was kept in the dark. As a consequence, and in order to force EPA to ful?ll its mandatory duties under the Clean Water Act, Maine ?led a lawsuit against EPA in July 2014 asking for, among other things, a court order requiring EPA to 1) honor Maine?s environmental regulatory jurisdiction to set water quality standards for all intrastate waters, including waters in Indian landsMaine?s outstanding standards for such Indian waters. During the briefing on Maine?s lawsuit, and perhaps in recognition of the weaknesses of historical jurisdictional position, EPA ?nally conceded what Johnson had already decided years earlier that Maine does indeed have the environmental regulatory authority under the Settlement Acts to set water quality standards for all Maine waters, including those in Indian lands. Also during brie?ng, and presumably in order to avoid the embarrassment of a court ordering the relief formally requested by Maine, EPA committed to ?nally acting on Maine?s outstanding water quality standards by the end of January 2015. Based on these developments, and in light of the Settlement Acts and the Johnson decision, Maine expected that EPA would ?nally end its decade-long delay and approve all of Maine?s outstanding water quality standards for waters in Indian lands, as they had already been approved for non?tribal waters. As we now know, this was never. intention. action, which was by letter dated February 2, 2015, consists of various EPA approvals, disapprovals, and ongoing inaction with respect to Maine?s water quality standards. As telegraphed by EPA during its brie?ng of Maine?s July 2014 lawsuit, action correctly concludes that Maine has statewide environmental regulatory jurisdiction under the Settlement Acts to set water quality standards for all Maine waters, including Maine?s waters in Indian lands. However, action then takes a surprisingly convoluted and unlawful approach in order to reach what appears to be a pre-determined result. This portion of February 2, 2015 action is carefully built upon a series of unlawful determinatiOns designed to get around Maine?s statewide environmental regulatory authority under the Settlement Acts. These unlawful determinations collectively form the shaky underpinnings of the result that EPA 2 appears to have sought all along the disapproval of all of Maine?s human health criteria for Indian waters, even though those same standards were previously approved by EPA for the same waters immediately outside of Maine?s tribal areas. The unlawful aspects of February 2, 2015 action that contribute to ultimate decision to unlawfully disapprove Maine?s human health criteria standards for Indian waters include, without limitation, the following: 1. 10. EPA unlawfully asserts that, prior to its February 2, 2015 action, none of Maine?s water quality standards were ever approved for waters in Indian lands, including those standards that were fully approved by EPA before 2004 without any quali?cation as to their effect on waters in Indian lands; EPA unlawfully asserts that it must make a formal ?nding of Maine? 5 environmental regulatory jurisdiction over waters in Indian lands before EPA can approve any of Maine?s water quality standards for such waters; - EPA unlawfully asserts that the Settlement Acts must be construed in favor of the tribes and against Maine on jurisdictional issues; EPA unlawfully asserts that its duties under the Clean Water Act must be informed by EPA1 interpretation of the purpose, as opposed to the actual terms, of the Settlement Acts; EPA unlawfully interprets the narrow portions of MIA that permit certain Maine Indian tribes to take ?sh without restriction within their reservations provided that - such ?sh takings are for individual sustenance only, as more broadly constituting a designated use of ?tribal sustenance ?shing? with respect to waters in Indian lands; - EPA unlawfully interprets Maine?s existing designated use of ??shing,? as used throughout Maine?s water classi?cation system, as meaning ?tribal sustenance ?shing? with respect to waters in Indian lands; EPA unlawfully usurps Maine?s role as a ?State? under the Clean Water Act by establishing its own newly-created designated use of ?tribal sustenance ?shing? in Maine without the bene?t of any public input or other required process; EPA unlawfully interprets its newly-created designated use of ?tribal sustenance ?shing? as requiring heightened human health water quality criteria for Maine waters in Indian lands, which EPA claims will also affect discharges into other surrounding Maine waters; - EPA unlawfully analyzes its newly-created designated use of ?tribal sustenance ?shing? in the context of tribal-only population data as opposed to general Maine population data, which EPA uses for all other Maine waters; and EPA unlaw?illy disapproves Maine?s human health water quality criteria with respect to waters in Indian lands. 3 In effect, February 2, 2015 action, by disapproving Maine?s otherwise approved human health criteria for only those waters in Maine?s Indian lands, creates a two-tiered water regulatory system that elevates the water regulatory goals of Maine? 3 Indian tribes over the rest of Maine in violation of the Clean Water Act, the Settlement Acts, and the Johnson decision. To add insult to injury, February?2, 2015 action also indicates that any heightened standards ultimately implemented in Indian waters will have a regulatory reach beyond Maine?s Indian waters to non-tribal waters within the same watersheds. To make matters still worse, EPA does not de?ne the scope of what it considers to be the affected Maine waters in Indian lands. In this way, February 2, 2015 action, in addition to being unlawful, irresponsibly disrupts settled regulatory expectations and causes uncertainty with reSpect to Maine3 3 long-established water classi?cation system. As a consequence, Maine intends to sue EPA in order to challenge disapproval of Maine?s human health water quality criteria with respect to the unspeci?ed waters in Indian lands, as well as other aSpects of February 2, 2015 action, including, without limitation, the unlawful EPA determinations described above. Maine believes that all of its forthcoming legal challenge to February 2, 2015 action may preperly be brought as an appeal of ?nal February 2, 2015 action pursuant to the Administrative Procedures Act, 5 U.S.C. 701 et seq. However, as an alternative to proceeding with an appeal under the APA, and in an abundance of caution, Maine also intends to assert as part of its forthcoming lawsuit against EPA, mandatory duty claims pursuant to 33 U.S.C. 1365(a)(2). Pursuant to 33 U.S.C. 1313(a) and 13 EPA has the non-discretionary duty to approve Maine? 3 human health water quality criteria for all of Maine?s intrastate waters, including Maine?s Indian waters, when, like here, those standards were determined by EPA to meet the requirements of the Clean Water Act 1). without quali?cation as to their effect in Indian waters, as was the case with all of Maine?s standards before 2004; and 2) for the same waters immediately outside of tribal areas. EPA violated this non?discretionary duty by, among other things, 1) attempting to revisit its pre?2004 unquali?ed approvals of Maine?s water quality standards in order to retroactively reconsider their effect in Indian waters; and 2) disapproving Maine?s human health water quality criteria with respect to waters in Indian lands after having approved those same standards for. waters immediately outside of tribal areas in violation of the Settlement Acts. With respect to these and any other mandatory duties alleged or determined to be at issue in February 2, 2015 action, Maine hereby provides this notice of its intent to Sue EPA pursuant to 33 U.S.C. l365(b)(2). The entities giving this notice are the State of Maine, which is a sovereign state, and the Maine Department of Environmental Protection, which is an agency of the State of Maine, both of which are represented in this matter by Maine?s Attorney General, Janet T. Mills. The address and contact information of the Maine Attorney General and the Commissioner of the Maine Department of Environmental Protection are as follows: Janet T. Mills Attorney General State of Maine 6 State House Station Augusta, ME 04333?0006 Tel.: (207)626-8599 Fax: (207)287-3145 Patricia W. Aho Commissioner Maine Department of Environmental Protection 17 State House Station Augusta, ME 04333-0017 Tel.: (207)287-2812 Fax: (207)287-2814 Counsel of record in this matter include the following: Scott W. Boak Assistant Attorney General Natural Resources Division 6 State House Station Augusta, ME 04333-0006 Tel. (207)626?8566 Fax: (207)626~8812 scott.boak@rnaine. gov Emily K. Green Assistant Attorney General Natural Resources Division 6 State House Station Augusta, ME 04333-0006 Tel. (207)626- 8868 Fax: (207)626-8 812 emily. green@maine. gov Sincerely, Janet T. Mills Maine Attorney General cc: The Honorable Paul LePage The Honorable Susan Collins The Honorable Angus King The Honorable Bruce Poliquin The Honorable Chellie Pingree Kirk Francis, Chief - Frederick Moore, HI, Chief William Nicholas, Sr., Chief Brenda Commander, Chief Edward Peter?Paul, Chief Gerald D. Reid Assistant Attorney General Chief, Natural Resources Division 6 State House Station Augusta, ME 04333?0006 Tel. (207)626-8545 Fax: (207)626-8812 jerry.reid@1naine. gov Christopher C. Taub Assistant Attorney General Litigation Division 6 State House Station Augusta, ME 04333?0006 Tel. (207)626-8565 Fax: (207)626?8812 christopher.c.taub@maine.gov Patricia W. Aho Maine Department of Environmental Protection H. Curtis Spalding, EPA Region I Administrator