[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Notices]
[Pages 29747-29748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12599]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9309-7]


State Program Requirements; Proposal To Approve Maine's Base 
National Pollutant Discharge Elimination System (NPDES) Permitting 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On August 8, 2007, the U.S. Court of Appeals for the First 
Circuit vacated EPA's October 31, 2003 decision to withhold the 
permitting of two tribally owned and operated treatment works from the 
Agency's approval of the State of Maine's NPDES permitting program 
under the Clean Water Act. Today, EPA is responding to the court's 
order by proposing to approve Maine's NPDES program to include the 
permitting of all discharges within the Indian territories of the 
Penobscot Nation and the Passamaquoddy Tribe.

DATES: Interested persons may submit comments on the approval of 
Maine's Base NPDES Permitting Program in these territories as part of 
the administrative record to EPA-Region 1, at the address given below, 
no later than midnight through July 22, 2011.

ADDRESSES: Submit comments by one of the following methods:
     E-mail: [email protected].
     Mail: Jessica Hing, USEPA-Region 1, 5 Post Office Square--
OEP06-04, Boston, MA 02109-3912.
    No facsimiles (faxes) will be accepted.

FOR FURTHER INFORMATION CONTACT:  Additional information concerning the 
proposed approval of Maine's program in these territories may be 
obtained between the hours of 9 a.m. and 5 p.m. Monday through Friday 
excluding holidays from: Jessica Hing, USEPA-Region 1, 5 Post Office 
Square--OEP06-04, Boston, MA 02109-3912, Telephone: 617-918-1560, 
Email: [email protected].

SUPPLEMENTARY INFORMATION: On December 17, 1999, EPA determined that 
the State of Maine had submitted a complete application to administer 
the NPDES permitting program in the state under the Clean Water Act 
(CWA). 33 U.S.C. 1251, et seq., see 64 FR 73552 (Dec. 30, 1999). 
Maine's application included an assertion of authority to implement the 
program in the territories of the federally-recognized Indian tribes 
within the state, based on the jurisdictional provisions of the Maine 
Indian Claims Settlement Act (MICSA), which ratified the Maine 
Implementing Act (MIA). 25 U.S.C. 1721, et seq. and 30 M.R.S.A. section 
6201, et seq., respectively.
    On January 12, 2001, EPA approved the State of Maine's application 
to administer the NPDES program for all areas of the state other than 
Indian country. At that point EPA did not take any action on Maine's 
application to administer the program within the territories of the 
federally-recognized Indian tribes in Maine. EPA published notice of 
its action on February 28, 2001. 66 FR 12791. As described in the 
Federal Register, EPA approved the state's application to administer 
both the NPDES permit program covering point source dischargers and the 
pretreatment program covering industrial dischargers into publicly 
owned treatment works (POTWs). EPA did not authorize the state to 
regulate cooling water intake structures under CWA section 316(b) (33 
U.S.C. 1326(b)). 66 FR at 12792.

2003 Partial Approval of Program in Indian Territories

    On October 31, 2003, EPA approved the State of Maine's application 
to administer the NPDES program in the Indian territories of the 
Penobscot Indian Nation and the Passamaquoddy Tribe, with the exception 
of any discharges that qualified as ``internal tribal matters'' under 
MICSA and MIA. 68 FR 65052 (Nov. 18, 2003). This action generally 
authorized the state to administer the NPDES program in the territories 
of the two largest Indian tribes in the state, finding that the 
combination of MICSA and MIA created a unique jurisdictional 
arrangement that granted the state authority to issue permits to 
dischargers. EPA did not approve the state's program to regulate two 
small tribally-owned and operated POTWs. EPA determined that these 
POTWs qualified as internal tribal matters and, therefore, fell within 
an enumerated exception to the grant of jurisdiction to the state in 
MICSA and MIA. EPA did not take action on the state's application as it 
applied to the territories of the two smaller federally-recognized 
tribes in the state, the Houlton Band of Maliseet Indians and the 
Aroostook Band of Micmac Indians. These two tribes are subject to 
jurisdictional provisions separate from those that apply to the 
Penobscot and Passamaquoddy tribes. EPA's 2003 action did address all 
the Indian territories that included existing point source dischargers 
covered by the NPDES program.

Appeal and Decision in Maine v. Johnson

    Several parties petitioned for judicial review of EPA's 2003 
decision partially approving Maine's NPDES program in the Penobscot and 
Passamaquoddy Indian territories. The Penobscot Nation and 
Passamaquoddy Tribe challenged EPA's decision to generally approve the 
state to administer the program in their territories. The State of 
Maine and a coalition of public and private NPDES permit holders 
challenged EPA's decision to disapprove the state's program as to the 
two small tribal POTWs based on the finding that permitting those 
discharges qualified as an internal tribal matter.
    On August 8, 2007, the U.S. Court of Appeals for the First Circuit 
issued its opinion in Maine v. Johnson. 498 F.3d 37. The court held 
that EPA had correctly determined that MICSA and MIA granted the state 
sufficient authority to administer the NPDES permit program in the 
territories of these two tribes. The court disagreed with EPA's 
finding, however, that permitting the two small tribal POTWs qualified 
as an internal tribal matter. It found that

    Discharging pollutants into navigable waters is not of the same 
character as tribal elections, tribal membership or other exemplars 
[of internal tribal matters] that relate to the structure of Indian 
government or the distribution of tribal property.

    Id. at 46. The court affirmed EPA's approval of Maine's NPDES 
program, but vacated EPA's decision to withhold permitting of the two 
tribal POTWs, and remanded the matter back to EPA to amend the program 
approval consistent with its opinion. Id. at 48-49. The court's mandate 
was issued on October 2, 2007.

Program Approval To Address the Court's Remand

    EPA is proposing to implement the court's order by modifying its 
approval of Maine's NPDES program to include the permitting of all 
discharges within the Indian territories of the Penobscot Nation and 
Passamaquoddy Tribe. Additionally, EPA does not plan to undertake a 
case-by-case analysis of any new discharges to determine whether they 
qualify as internal tribal matters under MICSA and MIA. As a result, 
the

[[Page 29748]]

state would assume responsibility from EPA for issuing and 
administering the permits for the Penobscot Nation Indian Island 
treatment works (EPA NPDES Permit No. ME 0101311 and MEPDES License No. 
2672) and the Passamaquoddy Tribal Council treatment works (EPA NPDES 
Permit No. 1011773 and MEPDES License No. 2561). Neither tribe has 
applied to EPA to implement the NPDES permit program, so this proposed 
action would not address the question of either tribe's authority to 
implement the program.
    This proposed action would not modify the types of activities 
covered by Maine's base program as EPA approved it in 2001. Thus, the 
state's program would not include regulation of cooling water intake 
structures under CWA section 316(b).

    Authority:  This action is proposed to be taken under the 
authority of Section 402 of the Clean Water Act as amended, 42 
U.S.C. 1342.

    Dated: May 9, 2011.
Ira W. Leighton,
Acting Regional Administrator, Region 1.
[FR Doc. 2011-12599 Filed 5-20-11; 8:45 am]
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