[Federal Register Volume 65, Number 125 (Wednesday, June 28, 2000)]
[Notices]
[Pages 39899-39900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16365]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6725-9]


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.

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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 (617) 918-1561 or Dennis Merrill at the address 
listed above or by calling (207) 287-7788. 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

[[Page 39900]]

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.
[FR Doc. 00-16365 Filed 6-27-00; 8:45 am]
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