[Federal Register Volume 77, Number 76 (Thursday, April 19, 2012)]
[Notices]
[Pages 23481-23482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9450]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R01-OEP-12-006; FRL-9662-6]


State Program Requirements; Approval of Maine's Base National 
Pollutant Discharge Elimination System (NPDES) Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Since January 2001, the State of Maine has been authorized to 
administer the National Pollutant Discharge Elimination System (NPDES) 
program in the Indian territories of the Penobscot Nation and the 
Passamaquoddy Tribe, with the exception of authorization to issue 
permits to two tribally owned and operated wastewater treatment works. 
On August 8, 2007, the U.S. Court of Appeals for the First Circuit 
vacated EPA's October 31, 2003 decision to withhold authority to 
administer the program under the Clean Water Act with respect to the 
two tribally owned and operated treatment works. EPA is responding to 
the court's order by approving Maine's NPDES program to include the 
permitting of all discharges within the Indian territories of the 
Penobscot Nation and the Passamaquoddy Tribe.

DATES: March 26, 2012.

FOR FURTHER INFORMATION CONTACT: Questions or requests for additional 
information may be submitted to:
     Mail: Glenda V[eacute]lez, USEPA-Region 1, 5 Post Office 
Square--OEP06-01, Boston, MA 02109-3912.
     Telephone: (617) 918-1677.
     Email: [email protected].
     No facsimiles (faxes) will be accepted.

Copies of documents Maine has submitted in support of its program 
approval may be reviewed during regular business hours, Monday through 
Friday, excluding holidays at the address above.

SUPPLEMENTARY INFORMATION:

2001 Approval of the Program Outside Indian Territories

    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

[[Page 23482]]

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 12792.

2003 Partial Approval of the 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 addressed 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 ``[d]ischarging 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 program 
approval with respect to issuing NDPES permits to 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 proposed to implement the court's order by modifying its 
approval of Maine's NPDES program to authorize the State to issue NPDES 
permits for all discharges within the Indian territories of the 
Penobscot Nation and Passamaquoddy Tribe. 76 FR 29747 (May 23, 2011). 
Additionally, the notice stated that 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. EPA received no 
public comments on the record in response to the May 23, 2011 proposal. 
As a result, the state will 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 action 
does not address the question of either tribe's authority to implement 
the program.
    The finalization of this action does not modify the types of 
activities covered by Maine's base program as EPA approved it in 2001. 
Thus, the state's program does not include regulation of cooling water 
intake structures under CWA section 316(b). Nor is EPA taking action on 
Maine's application to implement the NPDES permit program in the 
territories of the Houlton Band of Maliseet Indians and the Aroostook 
Band of Micmac Indians.

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

    Dated: March 28, 2012.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2012-9450 Filed 4-18-12; 8:45 am]
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