[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92466-92494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30331]



[[Page 92465]]

Vol. 81

Monday,

No. 243

December 19, 2016

Part IX





Environmental Protection Agency





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40 CFR Part 131





Promulgation of Certain Federal Water Quality Standards Applicable to 
Maine; Final Rule

  Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 / 
Rules and Regulations  

[[Page 92466]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2015-0804; FRL-9952-99-OW]
RIN 2040-AF59


Promulgation of Certain Federal Water Quality Standards 
Applicable to Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
federal Clean Water Act (CWA) water quality standards (WQS) for certain 
waters under the state of Maine's jurisdiction, including human health 
criteria (HHC) to protect the sustenance fishing designated use in 
waters in Indian lands and in waters subject to sustenance fishing 
rights under the Maine Implementing Act (MIA). EPA is promulgating 
these WQS to address various disapprovals of Maine's standards that EPA 
issued in February, March, and June 2015, and to address the 
Administrator's determination that Maine's HHC are not adequate to 
protect the designated use of sustenance fishing for certain waters.

DATES: This final rule is effective on January 18, 2017. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of January 18, 
2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2015-0804. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jennifer Brundage, Office of Water, 
Standards and Health Protection Division (4305T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; 
telephone number: (202) 566-1265; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How did EPA develop this final rule?
II. Background and Summary
    A. Statutory and Regulatory Background
    B. Description of Final Rule
III. Summary of Major Comments Received and EPA's Response
    A. Overview of Comments
    B. Maine Indian Settlement Acts
    C. Sustenance Fishing Designated Use
    D. Human Health Criteria for Toxics for Waters in Indian Lands
    E. Other Water Quality Standards
IV. Economic Analysis
    A. Identifying Affected Entities
    B. Method for Estimated Costs
    C. Results
V. Statutory and Executive Order Reviews
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From 
Environmental Health and Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect 
Energy Supply, Distribution, or Use)
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)
    K. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

    Entities such as industries, stormwater management districts, or 
publicly owned treatment works (POTWs) that discharge pollutants to 
waters of the United States in Maine could be indirectly affected by 
this rulemaking, because federal WQS promulgated by EPA are applicable 
to CWA regulatory programs, such as National Pollutant Discharge 
Elimination System (NPDES) permitting. Citizens concerned with water 
quality in Maine, including members of the federally recognized Indian 
tribes in Maine, could also be interested in this rulemaking. 
Dischargers that could potentially be affected include the following:

      Table 1--Dischargers Potentially Affected by This Rulemaking
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                                      Examples of potentially affected
             Category                             entities
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Industry..........................  Industries discharging pollutants to
                                     waters of the United States in
                                     Maine.
Municipalities....................  Publicly owned treatment works or
                                     other facilities discharging
                                     pollutants to waters of the United
                                     States in Maine.
Stormwater Management Districts...  Entities responsible for managing
                                     stormwater runoff in the state of
                                     Maine.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that could be indirectly affected 
by this action. Any parties or entities who depend upon or contribute 
to the quality of Maine's waters could be affected by this rule. To 
determine whether your facility or activities could be affected by this 
action, you should carefully examine this rule. If you have questions 
regarding the applicability of this action to a particular entity, 
consult Jennifer Brundage, whose contact information can be found in 
the FOR FURTHER INFORMATION section above.

B. How did EPA develop this final rule?

    In developing this final rule, EPA carefully considered the public 
comments and feedback received from interested parties. EPA provided a 
60-day public comment period after publishing the proposed rule in the 
Federal Register on April 20, 2016.\1\ In addition, EPA held two 
virtual public hearings on June 7 and 9, 2016, to discuss the contents 
of the proposed rule and accept verbal public comments.
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    \1\ See Proposal of Certain Federal Water Quality Standards 
Applicable to Maine, 81 FR 23239, April 20, 2016.
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    Over 100 organizations and individuals submitted comments on a 
range of issues. Some comments addressed issues beyond the scope of the 
rulemaking, and thus EPA did not consider them in finalizing this rule. 
In section III of this preamble, EPA discusses certain public comments 
so that the public is aware of the Agency's position. For a full 
response to these

[[Page 92467]]

and all other comments, see EPA's Response to Comments (RTC) document 
in the official public docket.

II. Background and Summary

A. Statutory and Regulatory Background

1. Clean Water Act (CWA)
    CWA section 101(a)(2) establishes as a national goal ``water 
quality which provides for the protection and propagation of fish, 
shellfish, and wildlife, and recreation in and on the water, wherever 
attainable.'' These are commonly referred to as the ``fishable/
swimmable'' goals of the CWA. EPA interprets ``fishable'' uses to 
include, at a minimum, designated uses providing for the protection of 
aquatic communities and human health related to consumption of fish and 
shellfish.\2\
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    \2\ USEPA. 2000. Memorandum #WQSP-00-03. U.S. Environmental 
Protection Agency, Office of Water, Washington, DC. https://www.epa.gov/sites/production/files/2015-01/documents/standards-shellfish.pdf.
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    CWA section 303(c) (33 U.S.C. 1313(c)) directs states to adopt 
water quality standards (WQS) for waters under their jurisdiction 
subject to the CWA. CWA section 303(c)(2)(A) and EPA's implementing 
regulations at 40 CFR part 131 require, among other things, that a 
state's WQS specify appropriate designated uses of the waters, and 
water quality criteria to protect those uses that are based on sound 
scientific rationale. EPA's regulations at 40 CFR 131.11(a)(1) provide 
that such criteria ``must be based on sound scientific rationale and 
must contain sufficient parameters or constituents to protect the 
designated use.'' In addition, 40 CFR 131.10(b) provides that ``[i]n 
designating uses of a waterbody and the appropriate criteria for those 
uses, the state shall take into consideration the water quality 
standards of downstream waters and ensure that its water quality 
standards provide for the attainment and maintenance of the water 
quality standards of downstream waters.''
    States are required to review applicable WQS at least once every 
three years and, if appropriate, revise or adopt new standards (CWA 
section 303(c)(1)). Any new or revised WQS must be submitted to EPA for 
review, to determine whether it meets the CWA's requirements, and for 
approval or disapproval (CWA section 303(c)(2)(A) and (c)(3)). If EPA 
disapproves a state's new or revised WQS, the CWA provides the state 
ninety days to adopt a revised WQS that meets CWA requirements, and if 
it fails to do so, EPA shall promptly propose and then within ninety 
days promulgate such standard unless EPA approves a state replacement 
WQS first (CWA section 303(c)(3) and (c)(4)(A)). If the state adopts 
and EPA approves a state replacement WQS after EPA promulgates a 
standard, EPA then withdraws its promulgation. CWA section 303(c)(4)(B) 
authorizes the Administrator to determine, even in the absence of a 
state submission, that a new or revised standard is necessary to meet 
CWA requirements. Upon making such a determination, EPA shall promptly 
propose, and then within ninety days promulgate, any such new or 
revised standard unless prior to such promulgation, the state has 
adopted a revised or new WQS that EPA approves as being in accordance 
with the CWA.
    Under CWA section 304(a), EPA periodically publishes water quality 
criteria recommendations for states to consider when adopting water 
quality criteria for particular pollutants to protect the CWA section 
101(a)(2) goal uses. For example, in 2015, EPA updated its CWA section 
304(a) recommended criteria for human health for 94 pollutants (the 
2015 criteria update).\3\ Where EPA has published recommended criteria, 
states should adopt water quality criteria based on EPA's CWA section 
304(a) criteria, section 304(a) criteria modified to reflect site-
specific conditions, or other scientifically defensible methods (40 CFR 
131.11(b)(1)). CWA section 303(c)(2)(B) requires states to adopt 
numeric criteria for all toxic pollutants listed pursuant to CWA 
section 307(a)(1) for which EPA has published CWA section 304(a) 
criteria, as necessary to support the states' designated uses.
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    \3\ Final Updated Ambient Water Quality Criteria for the 
Protection of Human Health, (80 FR 36986, June 29, 2015). See also: 
USEPA. 2015. Final 2015 Updated National Recommended Human Health 
Criteria. U.S. Environmental Protection Agency, Office of Water, 
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
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2. Maine Indian Settlement Acts
    There are four federally recognized Indian tribes in Maine 
represented by five governing bodies. The Penobscot Nation and the 
Passamaquoddy Tribe have reservations and trust land holdings in 
central and coastal Maine. The Passamaquoddy Tribe has two governing 
bodies, one on the Pleasant Point Reservation and another on the Indian 
Township Reservation. The Houlton Band of Maliseet Indians and the 
Aroostook Band of Micmacs have trust lands farther north in the state. 
To simplify the discussion, EPA will refer to the Penobscot Nation and 
the Passamaquoddy Tribe together as the ``Southern Tribes'' and the 
Houlton Band of Maliseet Indians and Aroostook Band of Micmacs as the 
``Northern Tribes.'' EPA acknowledges that these are collective 
appellations the tribes themselves have not adopted, and the Agency 
uses them solely to simplify this discussion.
    In 1980, Congress passed the Maine Indian Claims Settlement Act 
(MICSA) that resolved litigation in which the Southern Tribes asserted 
land claims to a large portion of the state of Maine. Public Law 96-
420, 94 Stat. 1785. MICSA ratified a state statute passed in 1979, the 
Maine Implementing Act (MIA, 30 M.R.S. 6201, et seq.), which was 
designed to embody the agreement reached between the state and the 
Southern Tribes. In 1981, MIA was amended to include provisions for 
land to be taken into trust for the Houlton Band of Maliseet Indians, 
as provided for in MICSA. Public Law 96-420, 94 Stat. 1785 section 
5(d)(1); 30 M.R.S. 6205-A. Since it is Congress that has plenary 
authority as to federally recognized Indian tribes, MIA's provisions 
concerning jurisdiction and the status of the tribes are effective as a 
result of, and consistent with, the Congressional ratification in 
MICSA.
    In 1989, the Maine legislature passed the Micmac Settlement Act 
(MSA) to embody an agreement as to the status of the Aroostook Band of 
Micmacs. 30 M.R.S. 7201, et seq. In 1991, Congress passed the Aroostook 
Band of Micmacs Settlement Act (ABMSA), which ratified the MSA. Act of 
Nov. 26, 1991, Public Law 102-171, 105 Stat. 1143. One principal 
purpose of both statutes was to give the Micmacs the same settlement 
that had been provided to the Maliseets in MICSA. See ABMSA 2(a)(4) and 
(5). In 2007, the U.S. Court of Appeals for the First Circuit confirmed 
that the Micmacs and Maliseets are subject to the same jurisdictional 
provisions in MICSA. Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 
(1st Cir. 2007). Where appropriate, this preamble discussion will refer 
to the combination of MICSA, MIA, ABMSA, and MSA as the ``Indian 
settlement acts'' or ``settlement acts.''
3. EPA's Disapprovals of Portions of Maine's Water Quality Standards
    On February 2, March 16, and June 5, 2015, EPA disapproved a number 
of Maine's new and revised WQS. These decision letters are available in 
the docket for this rulemaking. They were prompted by an ongoing 
lawsuit

[[Page 92468]]

initiated by Maine against EPA.\4\ As discussed in the preamble to the 
proposed rule (see 81 FR 23239, 23241-23242), some of the disapprovals 
applied only to waters in Indian lands in Maine, while others applied 
to waters throughout the state or to waters in the state outside of 
Indian lands.\5\ EPA concluded that the disapproved WQS did not 
adequately protect designated uses related to the protection of human 
health and/or aquatic life.\6\ EPA requested the state to revise its 
WQS to address the issues identified in the disapprovals. The statutory 
90-day timeframe provided to the state to revise its WQS has passed 
with respect to all of the disapproved WQS. EPA is required by the CWA 
to promptly propose and then, within 90 days of proposal, to promulgate 
federal standards unless, in the meantime, the state adopts and EPA 
approves state replacement WQS that address EPA's disapproval. The 
state has not adopted WQS revisions to address the disapprovals. Having 
published the proposed rule on April 20, 2016, EPA is today finalizing 
the rule. With the exception of minor revisions to several human health 
criteria as noted in section II.B.1.a and two small changes discussed 
in section II.B.2, EPA's final rule is identical to the proposed rule.
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    \4\ The state has filed an amended complaint in that lawsuit, 
challenging, among other things, EPA's February 2, 2015 approval of 
certain designated uses and disapprovals of Maine's HHC.
    \5\ As discussed in the proposal for this rule, unlike in most 
other states, Maine has the authority to promulgate WQS for waters 
in Indian lands in Maine, as a result of the settlement acts.
    \6\ After further consideration, by letter of January 19, 2016, 
EPA withdrew its February 2, 2015, disapprovals of Maine's HHC for 
six pollutants (copper, asbestos, barium, iron, manganese and 
nitrates) and instead approved them. EPA concluded that those 
criteria were not calculated using a fish consumption rate, and 
therefore the basis for EPA's disapprovals of the HHC in the 
February 2, 2015, decision letter did not apply. EPA approved them 
as being consistent with EPA's recommended CWA section 304(a) 
criteria. In addition, by letter of April 11, 2016, EPA withdrew its 
February 2, 2015, disapprovals of Maine's HHC for the following HHC 
and instead approved them: (1) For the consumption of water plus 
organisms for 1,2-dichloropropane, 1,4-dichlorobenzene, 
dichlorobromomethane, chlorodibromomethane, chrysene, methylene 
chloride, chlorophenoxy herbicide (2, 4, 5-TP), chlorophenoxy 
herbicide (2,4-D), and Nnitrosopyrrolidine; (2) for the consumption 
of organisms alone for acrolein and gamma-BHC (Lindane); and (3) for 
both the consumption of water plus organisms and for the consumption 
of organisms alone for 1,2-dichloroethane, acrylonitrile, benzidine, 
bis(chloromethyl) ether, chloroform, methyl bromide, and 
tetrachloroethylene. EPA calculated the HHC for these pollutants 
using the best science reflected in the 2015 criteria updates (which 
were finalized after the disapprovals), along with a fish 
consumption rate (FCR) of 286 g/day to protect the sustenance 
fishing use, and concluded that the resulting HHC were either the 
same or less stringent than Maine's HHC that EPA had disapproved. 
Accordingly, EPA withdrew the disapprovals and approved these HHC 
based on their being adequate to protect the sustenance fishing use.
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4. Scope of Action
a. Scope of Promulgation Related to Disapprovals
    To address the disapprovals discussed in section II.A.3, EPA is 
promulgating human health criteria (HHC) for toxic pollutants and six 
other WQS that apply only to waters in Indian lands; two WQS for all 
waters in Maine including waters in Indian lands; and one WQS for 
waters in Maine outside of Indian lands. For the purpose of this 
rulemaking, ``waters in Indian lands'' are those waters in the tribes' 
reservations and trust lands as provided for in the settlement acts.
b. Scope of Promulgation Related to the Administrator's Determination
    On April 20, 2016, EPA made a CWA section 303(c)(4)(B) 
determination that, for any waters in Maine where there is a sustenance 
fishing designated use and Maine's existing HHC are in effect, new or 
revised HHC for the protection of human health in Maine are necessary 
to meet the requirements of the CWA. EPA proposed (see 81 FR 23239, 
23242-23243), and is now finalizing, HHC for toxic pollutants, in 
accordance with the CWA section 303(c)(4)(B) determination, for the 
following waters: (1) Waters in Indian lands in the event that a court 
determines that EPA's disapprovals of HHC for such waters were 
unauthorized and that Maine's existing HHC are in effect; \7\ and (2) 
waters where there is a sustenance fishing designated use outside of 
waters in Indian lands.\8\
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    \7\ Maine has challenged EPA's disapprovals in federal district 
court, asserting that EPA did not have the authority to disapprove 
the HHC in waters in Indian lands. While EPA's position is that the 
disapprovals were authorized and Maine's existing HHC are not in 
effect, this determination ensures that EPA has the authority to 
promulgate the proposed HHC, and that the tribes' sustenance fishing 
use would be protected, even if Maine were to prevail in its 
challenge to EPA's disapproval authority.
    \8\ In its February 2015 Decision, EPA concluded that section 
6207(4) and (9) of MIA constituted a new or revised water quality 
standard and approved the provision as a designated use of 
sustenance fishing applicable to all inland waters of the Southern 
Tribes' reservations in which populations of fish are or may be 
found. Accordingly, EPA's approval of MIA section 6207(4) and (9) as 
a designated use of sustenance fishing applies to all waters where 
the Southern Tribes have a right to sustenance fish, irrespective of 
whether such waters are determined to be outside of the scope of 
their reservation for purposes other than sustenance fishing.
    EPA notes that there may be one or more waters where the 
sustenance fishing designated use based on MIA section 6207(4) and 
(9) extends beyond ``waters in Indian lands.'' For example, a 
federal district court recently held that the Penobscot Nation's 
``reservation'' for sustenance fishing purposes, as contained in MIA 
section 6207(4), is broader in scope than its ``reservation'' under 
MIA section 6203(8). Penobscot Nation v. Mills, 151 F. Supp. 3d 181 
(D. Maine Dec. 16, 2015) (formerly, Penobscot v. Schneider), appeal 
docketed, No. 16-1435 (1st Cir. April 26, 2016). The court held that 
the Penobscot Nation has a right to sustenance fish throughout the 
main stem of the Penobscot River (from Indian Island to the 
confluence of the East and West Branches of the Penobscot River), 
though its reservation under section 6203(8) consists solely of the 
islands in that stretch of the river. The determination and 
corresponding final HHC apply to any water that is beyond the scope 
of ``waters in Indian lands'' and to which the sustenance fishing 
designated use based on MIA section 6207(4) and (9) applies. For a 
more detailed discussion, see section III.D.5 of this preamble, and 
also Topic 5 in EPA's Response to Comments document and the ``Scope 
of Waters'' Technical Support Document; both documents are in the 
docket for this rulemaking.
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5. Applicability of Water Quality Standards
    These water quality standards apply to the categories of waters for 
CWA purposes, as described in II.B below. Although EPA is finalizing 
WQS to address the standards that it disapproved or for which it has 
made a determination, Maine continues to have the option to adopt and 
submit to EPA new or revised WQS that remedy the issues identified in 
the disapprovals and determination, consistent with CWA section 303(c) 
and EPA's implementing regulations at 40 CFR part 131.
    Some commenters urged EPA to finalize its rule without any further 
delay. Conversely, the state noted that EPA should give it additional 
time to adopt and submit its own WQS to address EPA's disapprovals. EPA 
acknowledges the perspectives of all of these commenters. EPA agrees 
that there is a compelling need to finalize the WQS, particularly in 
waters in Indian lands in Maine. For many pollutants, there are no 
criteria in effect for CWA purposes in waters in Indian lands, 
including most human health criteria, and it is important to remedy 
this gap in protection without further delay where possible. Further, 
the tribes have repeatedly expressed their desire for, and the 
importance of, their right to a sustenance fishing way of life, 
reserved for them under the settlement acts, to be protected. EPA, as a 
federal government agency, is taking action to protect that right, 
consistent with the settlement acts and CWA, as described further 
below.
    EPA also agrees that the CWA is intended to protect the Nation's 
waters through a system of cooperative federalism, with states having 
the primary responsibility of establishing protective WQS for waters 
under their jurisdiction. However, Maine is challenging EPA's 
disapproval of the

[[Page 92469]]

HHC for waters in Indian lands in federal court, and it commented 
adversely on EPA's proposed HHC, pH, bacteria, and tidal temperature 
criteria for waters in Indian lands. Consequently, EPA has no assurance 
that Maine will develop WQS that EPA can approve as scientifically 
defensible and protective of Maine's designated uses.
    Having considered these comments, EPA, in keeping with its 
statutory obligation to promulgate WQS within 90 days after proposing 
them and the need for these WQS to meet the requirements of the CWA, is 
finalizing the WQS.
    In the April 20, 2016, Federal Register notice, EPA proposed that 
if Maine adopted and submitted WQS that meet CWA requirements after EPA 
finalized its proposed rule, they would become effective for CWA 
purposes upon EPA approval and EPA's corresponding promulgated WQS 
would no longer apply. No commenters supported this proposal. Two 
commenters objected to it, and one asked that EPA specify that WQS 
adopted by the state would have to be at least as stringent as the 
federally proposed WQS for EPA to approve and make the state WQS 
effective for CWA purposes.
    Upon consideration of comments received on its proposed rule, EPA 
decided not to finalize the above proposed approach. Consistent with 40 
CFR 131.21(c), EPA's federally promulgated WQS are and will be 
applicable for purposes of the CWA until EPA withdraws those federally 
promulgated WQS. EPA would undertake a rulemaking to withdraw the 
federal WQS if and when Maine adopts and EPA approves corresponding WQS 
that meet the requirements of section 303(c) of the CWA and EPA's 
implementing regulations at 40 CFR part 131.

B. Description of Final Rule

1. Final WQS for Waters in Indian Lands in Maine and for Waters outside 
of Indian Lands in Maine Where the Sustenance Fishing Designated Use 
Established by 30 M.R.S. 6207(4) and (9) Applies
a. Human Health Criteria for Toxic Pollutants
    After consideration of all comments received on EPA's proposed 
rule, EPA is finalizing the proposed criteria for 96 toxic pollutants 
in this rule applicable to waters in Indian lands.\9\ Table 2 provides 
the criteria for each pollutant as well as the HHC inputs used to 
derive each one. These criteria also apply to any waters that are 
covered by the determination referenced in section II.A.4.
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    \9\ Final human health criteria for antimony, 
dichlorobromomethane, nickel, nitrosamines, N-nitrosodibutylamine, 
N-nitrosodiethylamine, PCBs, selenium, and zinc have been modified 
slightly from the criteria as proposed to better reflect the 
appropriate number of significant figures (i.e., precision) in the 
value.

[[Page 92470]]



                                                                 Table 2--Final HHC and Key Parameters Used in Their Derivation
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                                                                                                   Bioaccumu-       Bioaccumu-       Bioaccumu-
                                                   Cancer slope  Relative source    Reference    lation factor    lation factor    lation factor      Bioconcen-      Water &
           Chemical name                CAS No.     factor, CSF    contribution     dose, RfD     for  trophic     for  trophic     for  trophic    tration factor   organisms   Organisms  only
                                                     (per mg/        RSC (-)          (mg/       level 2 (L/kg    level 3 (L/kg    level 4 (L/kg    (L/kg tissue)    ([micro]g/    ([micro]g/L)
                                                   kg[middot]d)                   kg[middot]d)      tissue)          tissue)          tissue)            \e\             L)
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1 1,1,2,2-Tetrachloroethane........       79-34-5           0.2  ...............  ............              5.7              7.4              8.4  ...............         0.09              0.2
2 1,1,2-Trichloroethane............       79-00-5         0.057  ...............  ............              6.0              7.8              8.9  ...............         0.31             0.66
3 1,1-Dichloroethylene.............       75-35-4  ............             0.20          0.05              2.0              2.4              2.6  ...............          300             1000
4 1,2,4,5-Tetrachlorobenzene.......       95-94-3  ............             0.20        0.0003           17,000            2,900            1,500  ...............        0.002            0.002
5 1,2,4-Trichlorobenzene...........      120-82-1         0.029  ...............  ............            2,800            1,500              430  ...............       0.0056           0.0056
6 1,2-Dichlorobenzene..............       95-50-1  ............             0.20           0.3               52               71               82  ...............          200              300
7 1,2-Dichloropropane..............       78-87-5         0.036  ...............  ............              2.9              3.5              3.9  ...............  ...........              2.3
8 1,2-Diphenylhydrazine............      122-66-7           0.8  ...............  ............               18               24               27  ...............         0.01             0.02
9 1,2-Trans-Dichloroethylene.......      156-60-5  ............             0.20          0.02              3.3              4.2              4.7  ...............           90              300
10 1,3-Dichlorobenzene.............      541-73-1  ............             0.20         0.002               31              120              190  ...............            1                1
11 1,3-Dichloropropene.............      542-75-6         0.122  ...............  ............              2.3              2.7              3.0  ...............         0.21             0.87
12 1,4-Dichlorobenzene.............      106-46-7  ............             0.20          0.07               28               66               84  ...............  ...........               70
13 2,4,5-Trichlorophenol...........       95-95-4  ............             0.20           0.1              100              140              160  ...............           40               40
14 2,4,6-Trichlorophenol...........       88-06-2         0.011  ...............  ............               94              130              150  ...............         0.20             0.21
15 2,4-Dichlorophenol..............      120-83-2  ............             0.20         0.003               31               42               48  ...............            4                4
16 2,4-Dimethylphenol..............      105-67-9  ............             0.20          0.02              4.8              6.2              7.0  ...............           80              200
17 2,4-Dinitrophenol...............       51-28-5  ............             0.20         0.002          \a\ 4.4          \a\ 4.4          \a\ 4.4  ...............            9               30
18 2,4-Dinitrotoluene..............      121-14-2         0.667  ...............  ............              2.8              3.5              3.9  ...............        0.036             0.13
19 2-Chloronaphthalene.............       91-58-7  ............             0.80          0.08              150              210              240  ...............           90               90
20 2-Chlorophenol..................       95-57-8  ............             0.20         0.005              3.8              4.8              5.4  ...............           20               60
21 2-Methyl-4,6-Dinitrophenol......      534-52-1  ............             0.20        0.0003              6.8              8.9               10  ...............            1                2
22 3,3'-Dichlorobenzidine..........       91-94-1          0.45  ...............  ............               44               60               69  ...............       0.0096            0.011
23 4,4'-DDD........................       72-54-8          0.24  ...............  ............           33,000          140,000          240,000  ...............      9.3E-06          9.3E-06
24 4,4'-DDE........................       72-55-9         0.167  ...............  ............          270,000        1,100,000        3,100,000  ...............      1.3E-06          1.3E-06
25 4,4'-DDT........................       50-29-3          0.34  ...............  ............           35,000          240,000        1,100,000  ...............      2.2E-06          2.2E-06
26 Acenaphthene....................       83-32-9  ............             0.20          0.06          \a\ 510          \a\ 510          \a\ 510  ...............            6                7
27 Acrolein........................      107-02-8  ............             0.20        0.0005              1.0              1.0              1.0  ...............            3  ...............
28 Aldrin..........................      309-00-2            17  ...............  ............           18,000          310,000          650,000  ...............      5.8E-08          5.8E-08
29 alpha-BHC.......................      319-84-6           6.3  ...............  ............            1,700            1,400            1,500  ...............      2.9E-05          2.9E-05
30 alpha-Endosulfan................      959-98-8  ............             0.20         0.006              130              180              200  ...............            2                2
31 Anthracene......................      120-12-7  ............             0.20           0.3          \a\ 610          \a\ 610          \a\ 610  ...............           30               30
32 Antimony........................     7440-36-0  ............             0.40        0.0004  ...............  ...............  ...............                1            5               40
33 Benzene.........................       71-43-2     \b\ 0.055  ...............  ............              3.6              4.5              5.0  ...............         0.40              1.2
34 Benzo (a) Anthracene............       56-55-3          0.73  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-05          9.8E-05
35 Benzo (a) Pyrene................       50-32-8           7.3  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-06          9.8E-06
36 Benzo (b) Fluoranthene..........      205-99-2          0.73  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-05          9.8E-05
37 Benzo (k) Fluoranthene..........      207-08-9         0.073  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      0.00098          0.00098
38 beta-BHC........................      319-85-7           1.8  ...............  ............              110              160              180  ...............       0.0010           0.0011
39 beta-Endosulfan.................    33213-65-9  ............             0.20         0.006               80              110              130  ...............            3                3
40 Bis(2-Chloro-1-Methylethyl)           108-60-1  ............             0.20          0.04              6.7              8.8               10  ...............          100              300
 Ether.............................
41 Bis(2-Chloroethyl) Ether........      111-44-4           1.1  ...............  ............              1.4              1.6              1.7  ...............        0.026             0.16
42 Bis(2-Ethylhexyl) Phthalate.....      117-81-7         0.014  ...............  ............          \a\ 710          \a\ 710          \a\ 710  ...............        0.028            0.028
43 Bromoform.......................       75-25-2        0.0045  ...............  ............              5.8              7.5              8.5  ...............          4.0              8.7
44 Butylbenzyl Phthalate...........       85-68-7        0.0019  ...............  ............       \a\ 19,000       \a\ 19,000       \a\ 19,000  ...............       0.0077           0.0077
45 Carbon Tetrachloride............       56-23-5          0.07  ...............  ............              9.3               12               14  ...............          0.2              0.3
46 Chlordane.......................       57-74-9          0.35  ...............  ............            5,300           44,000           60,000  ...............      2.4E-05          2.4E-05
47 Chlorobenzene...................      108-90-7  ............             0.20          0.02               14               19               22  ...............           40               60
48 Chlorodibromomethane............      124-48-1         0.040  ...............  ............              3.7              4.8              5.3  ...............  ...........              1.5
49 Chrysene........................      218-01-9        0.0073  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............  ...........           0.0098
50 Cyanide.........................       57-12-5  ............             0.20        0.0006  ...............  ...............  ...............                1            4               30
51 Dibenzo (a,h) Anthracene........       53-70-3           7.3  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-06          9.8E-06
52 Dichlorobromomethane............       75-27-4         0.034  ...............  ............              3.4              4.3              4.8  ...............  ...........              2.0
53 Dieldrin........................       60-57-1            16  ...............  ............           14,000          210,000          410,000  ...............      9.3E-08          9.3E-08
54 Diethyl Phthalate...............       84-66-2  ............             0.20           0.8          \a\ 920          \a\ 920          \a\ 920  ...............           50               50
55 Dimethyl Phthalate..............      131-11-3  ............             0.20            10        \a\ 4,000        \a\ 4,000        \a\ 4,000  ...............          100              100
56 Di-n-Butyl Phthalate............       84-74-2  ............             0.20           0.1        \a\ 2,900        \a\ 2,900        \a\ 2,900  ...............            2                2
57 Dinitrophenols..................    25550-58-7  ............             0.20         0.002  ...............  ...............  ...............             1.51           10               70
58 Endosulfan Sulfate..............     1031-07-8  ............             0.20         0.006               88              120              140  ...............            3                3
59 Endrin..........................       72-20-8  ............             0.80        0.0003            4,600           36,000           46,000  ...............        0.002            0.002

[[Page 92471]]

 
60 Endrin Aldehyde.................     7421-93-4  ............             0.80        0.0003              440              920              850  ...............         0.09             0.09
61 Ethylbenzene....................      100-41-4  ............             0.20         0.022              100              140              160  ...............          8.9              9.5
62 Fluoranthene....................      206-44-0  ............             0.20          0.04        \a\ 1,500        \a\ 1,500        \a\ 1,500  ...............            1                1
63 Fluorene........................       86-73-7  ............             0.20          0.04              230              450              710  ...............            5                5
64 gamma-BHC (Lindane).............       58-89-9  ............             0.50        0.0047            1,200            2,400            2,500  ...............         0.33  ...............
65 Heptachlor......................       76-44-8           4.1  ...............  ............           12,000          180,000          330,000  ...............      4.4E-07          4.4E-07
66 Heptachlor Epoxide..............     1024-57-3           5.5  ...............  ............            4,000           28,000           35,000  ...............      2.4E-06          2.4E-06
67 Hexachlorobenzene...............      118-74-1          1.02  ...............  ............           18,000           46,000           90,000  ...............      5.9E-06          5.9E-06
68 Hexachlorobutadiene.............       87-68-3          0.04  ...............  ............           23,000            2,800            1,100  ...............       0.0007           0.0007
69 Hexachlorocyclohexane-Technical.      608-73-1           1.8  ...............  ............              160              220              250  ...............      0.00073          0.00076
70 Hexachlorocyclopentadiene.......       77-47-4  ............             0.20         0.006              620            1,500            1,300  ...............          0.3              0.3
71 Hexachloroethane................       67-72-1          0.04  ...............  ............            1,200              280              600  ...............         0.01             0.01
72 Indeno (1,2,3-cd) Pyrene........      193-39-5          0.73  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-05          9.8E-05
73 Isophorone......................       78-59-1       0.00095  ...............  ............              1.9              2.2              2.4  ...............           28              140
74 Methoxychlor....................       72-43-5  ............             0.80         2E-05            1,400            4,800            4,400  ...............        0.001  ...............
75 Methylene Chloride..............       75-09-2         0.002  ...............  ............              1.4              1.5              1.6  ...............  ...........               90
76 Methylmercury...................    22967-92-6  ............         2.70E-05        0.0001  ...............  ...............  ...............  ...............  ...........    \c\ 0.02 (mg/
                                                                                                                                                                                             kg)
77 Nickel..........................     7440-02-0  ............             0.20          0.02  ...............  ...............  ...............               47           20               20
78 Nitrobenzene....................       98-95-3  ............             0.20         0.002              2.3              2.8              3.1  ...............           10               40
79 Nitrosamines....................  ............         43.46  ...............  ............  ...............  ...............  ...............             0.20      0.00075            0.032
80 N-Nitrosodibutylamine...........      924-16-3          5.43  ...............  ............  ...............  ...............  ...............             3.38      0.00438           0.0152
81 N-Nitrosodiethylamine...........       55-18-5         43.46  ...............  ............  ...............  ...............  ...............             0.20      0.00075            0.032
82 N-Nitrosodimethylamine..........       62-75-9            51  ...............  ............  ...............  ...............  ...............            0.026      0.00065             0.21
83 N-Nitrosodi-n-propylamine.......      621-64-7           7.0  ...............  ............  ...............  ...............  ...............             1.13       0.0042            0.035
84 N-Nitrosodiphenylamine..........       86-30-6        0.0049  ...............  ............  ...............  ...............  ...............              136         0.40             0.42
85 N-Nitrosopyrrolidine............      930-55-2          2.13  ...............  ............  ...............  ...............  ...............            0.055  ...........              2.4
86 Pentachlorobenzene..............      608-93-5  ............             0.20        0.0008            3,500            4,500           10,000  ...............        0.008            0.008
87 Pentachlorophenol...............       87-86-5           0.4  ...............  ............               44              290              520  ...............        0.003            0.003
88 Phenol..........................      108-95-2  ............             0.20           0.6              1.5              1.7              1.9  ...............        3,000           20,000
89 Polychlorinated Biphenyls (PCBs)     1336-36-3             2  ...............  ............  ...............  ...............  ...............           31,200    \d\ 4E-06        \d\ 4E-06
90 Pyrene..........................      129-00-0  ............             0.20          0.03          \a\ 860          \a\ 860          \a\ 860  ...............            2                2
91 Selenium........................     7782-49-2  ............             0.20         0.005  ...............  ...............  ...............              4.8           20               60
92 Toluene.........................      108-88-3  ............             0.20        0.0097               11               15               17  ...............           24               39
93 Toxaphene.......................     8001-35-2           1.1  ...............  ............            1,700            6,600            6,300  ...............      5.3E-05          5.3E-05
94 Trichloroethylene...............       79-01-6          0.05  ...............  ............              8.7               12               13  ...............          0.3              0.5
95 Vinyl Chloride..................       75-01-4           1.5  ...............  ............              1.4              1.6              1.7  ...............        0.019             0.12
96 Zinc............................     7440-66-6  ............             0.20           0.3  ...............  ...............  ...............               47          300              400
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ This bioaccumulation factor was estimated from laboratory-measured bioconcentration factors; EPA multiplied this bioaccumulation factor by the overall fish consumption rate of 286 g/day to
  calculate the human health criteria.
\b\ EPA's CWA section 304(a) HHC for benzene use a CSF range of 0.015 to 0.055 per mg/kg-day. EPA used the higher end of the CSF range (0.055 per mg/kg-day) to derive the final benzene
  criteria.
\c\ This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and applies equally to fresh and marine waters. See Water Quality Criterion for the
  Protection of Human Health: Methylmercury (EPA-823-R-01-001, January 3, 2001) for how this value is calculated using the criterion equation in EPA's 2000 Methodology rearranged to solve for
  a protective concentration in fish tissue rather than in water.
\d\ This criterion applies to total PCBs (i.e., the sum of all congener or isomer or homolog or Aroclor analyses).
\e\ EPA multiplied this bioconcentration factor by the overall fish consumption rate of 286 g/day to calculate the human health criteria.


[[Page 92472]]

i. Sustenance Fishing Designated Use and Tribal Target Population
    In its February 2015 decision, EPA concluded that MICSA granted the 
state authority to set WQS in waters in Indian lands. EPA also 
concluded that in assessing whether the state's WQS were approvable for 
waters in Indian lands, EPA must effectuate the CWA requirement that 
WQS must protect applicable designated uses and be based on sound 
science in consideration of the fundamental purpose for which land was 
set aside for the tribes under the Indian settlement acts in Maine. EPA 
found that those settlement acts provide for land to be set aside as a 
permanent land base for the Indian tribes in Maine, in order for the 
tribes to be able to continue their unique cultural practices, 
including the ability to exercise sustenance fishing practices. 
Accordingly, EPA interpreted the state's ``fishing'' designated use, as 
applied to waters in Indian lands, to mean ``sustenance fishing'' and 
approved it as such. EPA also approved a specific sustenance fishing 
right reserved in MIA sections 6207(4) and (9) as a designated use for 
all inland waters of the Southern Tribes' reservations. Against this 
backdrop, EPA approved or disapproved all of Maine's HHC for toxic 
pollutants as applied to waters in Indian lands after evaluating 
whether they satisfied CWA requirements.
    EPA determined that the tribal populations must be treated as the 
general target population in waters in Indian lands. EPA disapproved 
many of Maine's HHC for toxic pollutants based on EPA's conclusion that 
they do not adequately protect the health of tribal sustenance fishers 
in waters in Indian lands. EPA concluded that the disapproved HHC did 
not support the designated use of sustenance fishing in such waters 
because they were not based on the higher, unsuppressed fish 
consumption rates that reflect the tribes' sustenance fishing 
practices. Accordingly, EPA proposed, and is now finalizing, HHC that 
EPA has determined will protect the sustenance fishing designated use, 
based on sound science and consistent with the CWA and EPA regulations 
and policy.
ii. General Recommended Approach for Deriving HHC
    HHC for toxic pollutants are designed to minimize the risk of 
adverse cancer and non-cancer effects occurring from lifetime exposure 
to pollutants through the ingestion of drinking water and consumption 
of fish/shellfish obtained from inland and nearshore waters. EPA's 
practice is to establish CWA section 304(a) HHC for the combined 
activities of drinking water and consuming fish/shellfish obtained from 
inland and nearshore waters, and separate CWA section 304(a) HHC for 
consuming only fish/shellfish originating from inland and nearshore 
waters. The latter criteria apply in cases where the designated uses of 
a waterbody include supporting fish/shellfish for human consumption but 
not drinking water supply sources (e.g., in non-potable estuarine 
waters).
    The criteria are based on two types of biological endpoints: (1) 
Carcinogenicity and (2) systemic toxicity (i.e., all adverse effects 
other than cancer). EPA takes an integrated approach and considers both 
cancer and non-cancer effects when deriving HHC. Where sufficient data 
are available, EPA derives criteria using both carcinogenic and non-
carcinogenic toxicity endpoints and recommends the lower value. HHC for 
carcinogenic effects are typically calculated using the following input 
parameters: Cancer slope factor, excess lifetime cancer risk level, 
body weight, drinking water intake rate, fish consumption rate(s), and 
bioaccumulation factor(s). HHC for noncarcinogenic and nonlinear 
carcinogenic effects are typically calculated using reference dose, 
relative source contribution (RSC), body weight, drinking water intake 
rate, fish consumption rate(s) and bioaccumulation factor(s). EPA 
selects a mixture of high-end and central (mean) tendency inputs to the 
equation in order to derive recommended criteria that ``afford an 
overall level of protection targeted at the high end of the general 
population (i.e., the target population or the criteria-basis 
population).'' \10\
---------------------------------------------------------------------------

    \10\ United States Environmental Protection Agency (U.S. EPA). 
2000. Methodology for Deriving Ambient Water Quality Criteria for 
the Protection of Human Health. EPA-822-B-00-004, p. 2-1.
---------------------------------------------------------------------------

    EPA received comments supporting and opposing specific input 
parameters EPA used to derive the proposed HHC. The specific input 
parameters used are explained in the following paragraphs.
iii. Maine-Specific HHC Inputs
    I. Cancer Risk Level. As set forth in EPA's 2000 Methodology for 
Deriving Ambient Water Quality Criteria for the Protection of Human 
Health (the ``2000 Methodology''), EPA calculates its CWA section 
304(a) HHC at concentrations corresponding to a 10-\6\ 
cancer risk level (CRL), meaning that if exposure were to occur as set 
forth in the CWA section 304(a) methodology at the prescribed 
concentration over the course of one's lifetime, then the risk of 
developing cancer from the exposure as described would be a one in a 
million increment above the background risk of developing cancer from 
all other exposures.\11\
---------------------------------------------------------------------------

    \11\ Id., p. 2-6.
---------------------------------------------------------------------------

    In this rule, EPA derived the final HHC for carcinogens using a 
10-\6\ CRL, consistent with EPA's 2000 Methodology and with 
Maine Department of Environmental Protection (DEP) Rule Chapter 584, 
which specifies that water quality criteria for carcinogens must be 
based on a 10-\6\ CRL, and which EPA approved for waters in 
Indian lands on February 2, 2015.\12\ The HHC provide the tribes 
engaged in sustenance fishing in waters in Indian lands in Maine with 
an equivalent level of cancer risk protection (i.e., 10-\6\) 
as is afforded to the general population in Maine outside of waters in 
Indian lands.
---------------------------------------------------------------------------

    \12\ The only exception from the requirement to use a CRL of 
10-\6\ in Chapter 584 is for arsenic, for which a CRL of 
10-\4\ is required. EPA disapproved the arsenic CRL for 
waters in Indian lands.
---------------------------------------------------------------------------

    EPA received comments in favor of using the proposed 
10-\6\ CRL level as well as recommendations for higher and 
lower CRLs. Responses to those comments are summarized in section 
III.D.5.
    II. Cancer Slope Factor and Reference Dose. For noncarcinogenic 
toxicological effects, EPA uses a chronic-duration oral reference dose 
(RfD) to derive HHC. An RfD is an estimate (with uncertainty spanning 
perhaps an order of magnitude) of a daily oral exposure of an 
individual to a substance that is likely to be without an appreciable 
risk of deleterious effects during a lifetime. For carcinogenic 
toxicological effects, EPA uses an oral cancer slope factor (CSF) to 
derive HHC. The oral CSF is an upper bound, approximating a 95% 
confidence limit, on the increased cancer risk from a lifetime oral 
exposure to a stressor.
    EPA did not receive any comments on the pollutant-specific RfDs or 
CSFs used in the derivation of the proposed criteria, which were based 
on EPA's National Recommended Water Quality Criteria.\13\ EPA has used 
the same values to derive the final HHC.
---------------------------------------------------------------------------

    \13\ Final Updated Ambient Water Quality Criteria for the 
Protection of Human Health, 80 FR 36986 (June 29, 2015). See also: 
USEPA. 2015. Final 2015 Updated National Recommended Human Health 
Criteria. U.S. Environmental Protection Agency, Office of Water, 
Washington, DC. https://www.epa.gov/wqc/human-health-water-quality-criteria.
---------------------------------------------------------------------------

    III. Body Weight. The final HHC were calculated using the proposed 
body weight of 80 kilograms (kg), consistent with the default body 
weight used in EPA's most recent National

[[Page 92473]]

Recommended Water Quality Criteria.\14\ This body weight is the average 
weight of a U.S. adult age 21 and older, based on National Health and 
Nutrition Examination Survey (``NHANES'') data from 1999 to 2006.\15\ 
EPA received one comment regarding body weight, which requested that 
EPA use a body weight of 70 kg. However, the commenter did not present 
a sound scientific rationale to support the use of a different body 
weight. See Topic 6 of the RTC document for a more detailed response.
---------------------------------------------------------------------------

    \14\ Final Updated Ambient Water Quality Criteria for the 
Protection of Human Health, 80 FR 36986 (June 29, 2015). See also: 
USEPA. 2015. Final 2015 Updated National Recommended Human Health 
Criteria. U.S. Environmental Protection Agency, Office of Water, 
Washington, DC. https://www.epa.gov/wqc/human-health-water-quality-criteria.
    \15\ USEPA. 2011. EPA Exposure Factors Handbook. United States 
Environmental Protection Agency, Washington, DC EPA 600/R-090/052F. 
http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
---------------------------------------------------------------------------

    IV. Drinking water intake. The final HHC were calculated using the 
proposed drinking water intake rate of 2.4 liters per day (L/day), 
consistent with the default drinking water intake rate used in EPA's 
most recent National Recommended Water Quality Criteria.\16\ This rate 
represents the per capita estimate of combined direct and indirect 
community water ingestion at the 90th percentile for adults ages 21 and 
older.\17\ EPA did not receive any comments regarding the proposed 
drinking water intake rate.
---------------------------------------------------------------------------

    \16\ Final Updated Ambient Water Quality Criteria for the 
Protection of Human Health, 80 FR 36986 (June 29, 2015). See also: 
USEPA. 2015. Final 2015 Updated National Recommended Human Health 
Criteria. U.S. Environmental Protection Agency, Office of Water, 
Washington, DC. https://www.epa.gov/wqc/human-health-water-quality-criteria.
    \17\ USEPA. 2011. EPA Exposure Factors Handbook. United States 
Environmental Protection Agency, Washington, DC. EPA 600/R-090/052F. 
http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
---------------------------------------------------------------------------

    V. Bioaccumulation Factors (BAFs) and Bioconcentration Factors 
(BCFs). The final HHC were calculated using the proposed pollutant-
specific BAFs or BCFs, consistent with the factors used in EPA's most 
recent National Recommended Water Quality Criteria.\18\ These factors 
are used to relate aqueous pollutant concentrations to predicted 
pollutant concentrations in the edible portions of ingested species. 
EPA did not receive any comments regarding specific proposed BAFs or 
BCFs.
---------------------------------------------------------------------------

    \18\ Final Updated Ambient Water Quality Criteria for the 
Protection of Human Health, 80 FR 36986 (June 29, 2015). See also: 
USEPA. 2015. Final 2015 Updated National Recommended Human Health 
Criteria. U.S. Environmental Protection Agency, Office of Water, 
Washington, DC. https://www.epa.gov/wqc/human-health-water-quality-criteria.
---------------------------------------------------------------------------

    VI. Fish Consumption Rate (FCR). In finalizing the HHC, EPA used 
the proposed FCR of 286 g/day to represent present day sustenance level 
fish consumption for waters in Indian lands. This FCR supports the 
designated use of sustenance fishing. EPA selected this consumption 
rate based on information contained in an historical/anthropological 
study, entitled the Wabanaki Cultural Lifeways Exposure Scenario \19\ 
(``Wabanaki Study''), which was completed in 2009. EPA also consulted 
with the tribes in Maine about the Wabanaki Study and their sustenance 
fishing uses of the waters in Indian lands. There has been no 
contemporary local survey of current fish consumption that documents 
fish consumption rates for sustenance fishing in the waters in Indian 
lands in Maine. In the absence of such information, EPA concluded that 
the Wabanaki Study contains the best currently available estimate for 
contemporary tribal sustenance level fish consumption for waters where 
the sustenance fishing designated use applies.
---------------------------------------------------------------------------

    \19\ Harper, B., Ranco, D., et al. 2009. Wabanaki Traditional 
Cultural Lifeways Exposure Scenario. https://www.epa.gov/tribal/wabanaki-traditional-cultural-lifeways-exposure-scenario.
---------------------------------------------------------------------------

    EPA received many comments that agreed and some that disagreed with 
EPA's selection of the proposed FCR of 286 g/day. Responses to those 
comments can be found in section III.D of this preamble and, in further 
detail, in Topic 3 of the RTC document.
    VII. Relative Source Contribution (RSC). For pollutants that 
exhibit a threshold of exposure before deleterious effects occur, as is 
the case for noncarcinogens and nonlinear carcinogens, EPA applied a 
RSC to account for other potential human exposures to the 
pollutant.\20\ Other sources of exposure might include, but are not 
limited to, exposure to a particular pollutant from non-fish food 
consumption (e.g., consumption of fruits, vegetables, grains, meats, or 
poultry), dermal exposure, and inhalation exposure. For substances for 
which the toxicity endpoint is carcinogenicity based on a linear low-
dose extrapolation, only the exposures from drinking water and fish 
ingestion are reflected in HHC; no other potential sources of exposure 
to pollutants or other potential exposure pathways have been considered 
in developing HHC.\21\ In these situations, HHC are derived with 
respect to the incremental lifetime cancer risk posed by the presence 
of a substance in water, rather than an individual's total risk from 
all sources of exposure.
---------------------------------------------------------------------------

    \20\ USEPA. 2000. Methodology for Deriving Ambient Water Quality 
Criteria for the Protection of Human Health. U.S. Environmental 
Protection Agency, Office of Water, Washington, DC. EPA-822-B-00-
004.
    \21\ Id.
---------------------------------------------------------------------------

    As in the proposed HHC, for the pollutants included in EPA's 2015 
criteria update, EPA used the same RSCs in the final HHC as were used 
in the criteria update. Also as in the proposed HHC, for pollutants 
where EPA did not update the section 304(a) HHC in 2015, EPA used a 
default RSC of 0.20 to derive the final HHC except for antimony, for 
which EPA used an RSC of 0.40 consistent with the RSC value used the 
last time the Agency updated this criterion. EPA did not receive any 
comments on specific RSCs used in the derivation of the proposed 
criteria.

2. Final WQS for Waters in Indian Lands in Maine

a. Bacteria Criteria
i. Recreational Bacteria Criteria
    EPA is finalizing the proposed year-round recreational bacteria 
criteria for Class AA, A, B, C, GPA, SA, SB and SC waters in Indian 
lands. The magnitude criteria are expressed in terms of Escherichia 
coli colony forming units per 100 milliliters (cfu/100 ml) for fresh 
waters and Enterococcus spp. colony forming units per 100 milliliters 
(cfu/100 ml) for marine waters and are based on EPA's 2012 Recreational 
Water Quality Criteria (RWQC) recommendations.\22\
---------------------------------------------------------------------------

    \22\ USEPA. 2012. Recreational Water Quality Criteria. U.S. 
Environmental Protection Agency, Office of Water, Washington, DC. 
Office of Water 820-F-12-058. https://www.epa.gov/wqc/2012-recreational-water-quality-criteria.
---------------------------------------------------------------------------

    Several comments supported EPA's proposed rule and the year round 
applicability of the criteria. Maine DEP objected to EPA's inclusion of 
wildlife sources in the scope of the bacteria criteria and requested 
that the criteria not be applicable from October 1-May 14, similar to 
Maine's disapproved criteria. For the reasons discussed in section 
III.E.2., EPA has determined that, based on best available information, 
it is necessary to include wildlife sources in the scope of the 
criteria, and to apply the criteria year round, in order to protect 
human health and the designated use of recreation in and on the water.
ii. Shellfishing Bacteria Criteria
    EPA's final bacteria rule for Class SA shellfish harvesting areas 
for waters in

[[Page 92474]]

Indian lands differs slightly from the proposed numeric total coliform 
bacteria criteria, as a result of comments from the state. Maine DEP 
requested EPA to express the criteria in terms of fecal coliform 
bacteria rather than total coliform bacteria, noting that the National 
Shellfish Sanitation Program (NSSP) allows the use of either indicator, 
that Maine DEP sets permit limits on fecal coliform bacteria rather 
than total coliform, and that Maine Department of Marine Resources 
(DMR) uses fecal coliform bacteria as its indicator parameter when 
making shellfish area opening/closure decisions. Maine DMR requested 
EPA not to specify a specific numeric standard but rather to promulgate 
the same narrative criterion that applies to Class SB and SC waters. 
For those classes of waters, Maine's WQS provide that instream bacteria 
levels may not exceed the criteria recommended under the NSSP.
    The NSSP is the federal/state cooperative program recognized by the 
U.S. Food and Drug Administration (FDA) and the Interstate Shellfish 
Sanitation Conference (ISSC) for the sanitary control of shellfish 
produced and sold for human consumption.
    EPA agrees that the NSSP allows for the use of either fecal 
coliform bacteria or total coliform bacteria as the indicator organism 
to protect shellfish harvesting. The current NSSP recommendations \23\ 
for those organisms are consistent with EPA's national recommended 
water quality criteria.\24\ The NSSP recommendations for fecal coliform 
standards and sampling protocols are set forth in Section II. Model 
Ordinance Chapter IV. Growing Areas .02 Microbial Standards (pages 51-
54). The NSSP recommendations for total coliform standards and sampling 
protocols are set forth in Section IV, Guidance Documents Chapter II. 
Growing Areas .01 Total Coliform Standards (pages 216-219). Both sets 
of recommendations apply to various types of shellfish growing areas 
including remote status, areas affected by point source pollution, and 
areas affected by nonpoint source pollution.
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    \23\ http://www.fda.gov/downloads/Food/GuidanceRegulation/FederalStateFoodPrograms/UCM505093.pdf.
    \24\ USEPA. 1986. Quality Criteria for Water 1986, United States 
Environmental Protection Agency, Washington, DC. EPA 440/5-86-001.
---------------------------------------------------------------------------

    In light of the state's concerns and suggestions, EPA's final rule 
contains a narrative criterion similar to Maine's approved criterion 
for Class SB and SC waters. The final rule provides ``The numbers of 
total coliform bacteria or other specified indicator organisms in 
samples representative of the waters in shellfish harvesting areas may 
not exceed the criteria recommended under the National Shellfish 
Sanitation Program, United States Food and Drug Administration as set 
forth in the Guide for the Control of Molluscan Shellfish, 2015 
Revision.'' EPA has added a specific reference to the date of the NSSP 
recommendations because there are legal constraints on incorporating 
future recommendations by reference. The NSSP 2015 recommendations are 
available online at: http://www.fda.gov/Food/GuidanceRegulation/FederalStateFoodPrograms/ucm2006754.htm. The recommendations are also 
included in the docket for this rulemaking, which is available both 
online at regulations.gov and in person at the EPA Docket Center 
Reading Room, William Jefferson Clinton West Building, Room 3334, 1301 
Constitution Avenue NW., Washington, DC 20004, and (202) 566-1744. 
Finally, the 2015 NSSP recommendations are obtainable from the U.S. 
Food and Drug Administration's Center for Food Safety and Applied 
Nutrition, Shellfish and Aquaculture Policy Branch, 5100 Paint Branch 
Parkway (HFS-325), College Park, MD 20740.
b. Ammonia Criteria for Fresh Waters
    EPA is finalizing the proposed ammonia criteria for fresh waters in 
Indian lands to protect aquatic life. The criteria are based on EPA's 
2013 updated CWA section 304(a) recommended ammonia criteria.\25\ They 
are expressed as functions of temperature and pH, so the applicable 
criteria vary by waterbody, depending on the temperature and pH of 
those waters. EPA received several comments in support of the proposed 
ammonia criteria, and received no comments requesting changes.
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    \25\ USEPA. 2013. Aquatic Life Ambient Water Quality Criteria 
for Ammonia-Freshwater 2013. United States Environmental Protection 
Agency, Washington, DC. EPA 822-R-13-001. https://www.epa.gov/wqc/aquatic-life-criteria-ammonia.
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c. pH Criterion for Fresh Waters
    EPA is finalizing the proposed pH criterion of 6.5 to 8.5 to 
protect aquatic life in fresh waters in Indian lands. The criterion is 
based on EPA's 1986 national recommended criterion.\26\ EPA received 
comments from the state and one industry, both requesting that Maine's 
pH criterion of 6.0-8.5 be retained. However, EPA does not agree that 
6.0 adequately protects aquatic life and notes in particular that pH 
values of 6.0 and lower have been shown to be detrimental to sensitive 
aquatic life, such as developing Atlantic salmon eggs and 
smolts.27 28 29 See Topic 11 of the RTC document for more 
detailed responses to comments.
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    \26\ USEPA. 1986. Quality Criteria for Water 1986, U.S. 
Environmental Protection Agency, Office of Water, Washington, DC. 
EPA 440/5-86-001. pH section. https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=00001MGA.txt.
    \27\ Peterson, R.H., P.G. Daye, J.L. Metcalfe. 1980. Inhibition 
of Atlantic salmon (Salmo salar) hatching at low pH. Can. J. Fish. 
Aquat. Sci. 37: 770-774.
    \28\ Staurnes, M., F. Kroglund and B.O. Rosseland. 1995. Water 
quality requirement of Atlantic salmon (Salmo salar) in water 
undergoing acidification or liming in Norway. Water, Air and Soil 
Pollution 85: 347-352.
    \29\ Staurnes, M., L.P. Hansen, K. Fugelli, R. Haraldstad. 1996. 
Short-term exposure to acid water impairs osmoregulation, seawater 
tolerance, and subsequent marine survival of smolts of Atlantic 
salmon (Salmo salar L.) Can. J. Fish. Aquat. Sci. 53: 1965-1704.
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d. Temperature Criteria for Tidal Waters
    EPA is finalizing the proposed temperature criteria for tidal 
waters in Indian lands. The criteria will assure protection of the 
indigenous marine community characteristic of the intertidal zone at 
Pleasant Point in Passamaquoddy Bay, and are consistent with EPA's CWA 
section 304(a) recommended criteria for tidal waters.\30\ They include 
a maximum summer weekly average temperature and a maximum weekly 
average temperature rise over reference site baseline conditions.
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    \30\ USEPA. 1986. Quality Criteria for Water 1986, U.S. 
Environmental Protection Agency, Office of Water, Washington, DC. 
EPA 440/5-86-001. Temperature section. https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=00001MGA.txt.
---------------------------------------------------------------------------

    Maine DEP commented with concerns about the difficulty of finding 
reference sites to determine baseline temperatures and a question about 
whether there should be a baseline established for each season. EPA is 
confident that reference sites will not be difficult to identify, and 
there is no need to establish separate baselines outside the defined 
summer season. See Topic 12 of the RTC document for a more detailed 
response.
e. Natural Conditions Provisions
    EPA is finalizing the proposed rule for waters in Indian lands that 
stated that Maine's natural conditions provisions in 38 M.R.S. 420(2.A) 
and 464(4.C) do not apply to water quality criteria intended to protect 
public health. EPA received several comments in support of the proposed 
rule, and received no comments requesting changes.
f. Mixing Zone Policy
    EPA is finalizing the proposed mixing zone policy for waters in 
Indian lands with one small change to the

[[Page 92475]]

prohibition of mixing zones for bioaccumulative pollutants. 
Specifically, in order to avoid confusion over what is meant by 
``bioaccumulative pollutants'' for the purpose of this rule, EPA has 
added a parenthetical definition which specifies that bioaccumulative 
pollutants are those ``chemicals for which the bioconcentration factors 
(BCF) or bioaccumulation factors (BAF) are greater than 1,000.'' This 
definition is based on EPA's definition of bioaccumulation for chemical 
substances found at 64 FR 60194 (November 4, 1999).
    EPA received several comments in support of the mixing zone policy. 
One of those commenters added that a total ban on mixing zones would be 
preferable. Two commenters asserted that EPA does not have the legal 
authority or the scientific basis to ban mixing zones for 
bioaccumulative pollutants outside the Great Lakes. EPA disagrees, for 
the reasons discussed in section III.E.1 of this preamble. One 
commenter raised comments about thermal mixing zones specific to its 
facility, and EPA's response to those comments are contained in the RTC 
document at Topic 9.
3. Final WQS for All Waters in Maine
a. Dissolved Oxygen for Class A Waters
    EPA is finalizing the proposed dissolved oxygen criteria for all 
Class A waters in Maine. The rule provides that dissolved oxygen shall 
not be less than 7 ppm (7 mg/L) or 75% of saturation, whichever is 
higher, year-round. For the period from October 1 through May 14, in 
fish spawning areas, the 7-day mean dissolved oxygen concentration 
shall not be less than 9.5 ppm (9.5 mg/L), and the 1-day minimum 
dissolved oxygen concentration shall not be less than 8 ppm (8.0 mg/L). 
EPA received several comments in support of the proposed criteria, and 
received no comments requesting changes.
b. Waiver or Modification of WQS
    EPA is finalizing the proposed rule stating that 38 M.R.S. 363-D, 
which allows waivers of state law in the event of an oil spill, does 
not apply to state or federal WQS applicable to waters in Maine, 
including designated uses, criteria to protect designated uses, and 
antidegradation requirements. EPA received several comments in support 
of the proposed rule, and received no comments requesting changes.
4. Final WQS for Waters in Maine Outside of Indian Lands
a. Phenol HHC for Consumption of Water Plus Organisms
    EPA is finalizing the proposed phenol HHC for consumption of water 
plus organisms of 4000 [mu]g/L, for waters in Maine outside of Indian 
lands. The criterion is consistent with EPA's June 2015 national 
criteria recommendation,\31\ except that EPA used Maine's default fish 
consumption rate for the general population of 32.4 g/day, consistent 
with DEP Rule Chapter 584.\32\ EPA received several comments in support 
of the proposed rule, and received no comments requesting changes.
---------------------------------------------------------------------------

    \31\ Final Updated Ambient Water Quality Criteria for the 
Protection of Human Health, 80 FR 36986 (June 29, 2015). See also: 
USEPA. 2015. Final 2015 Updated National Recommended Human Health 
Criteria. U.S. Environmental Protection Agency, Office of Water, 
Washington, DC. https://www.epa.gov/wqc/human-health-water-quality-criteria.
    \32\ 06-096 Code of Maine Rules, Chapter 584, Surface Water 
Quality Criteria for Toxic Pollutants.
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III. Summary of Major Comments Received and EPA's Response

A. Overview of Comments

    EPA received 104 total comments, 100 of which are unique comments. 
The vast majority of the comments were general statements of support 
for EPA's proposed rule from private citizens, including tribal 
members. Tribes and others provided substantive comments that also were 
generally supportive regarding the importance of protecting the 
designated use of sustenance fishing, identifying tribes as the target 
population, and using a 286 g/day fish consumption rate.
    EPA also received comments critical of the proposal, principally 
from the Maine Attorney General and DEP, a single discharger and a 
coalition of dischargers, and two trade organizations. The focus of the 
remainder of this section III identifies and responds to the major 
adverse comments. Additionally, a comprehensive RTC document addressing 
all comments received is included in the docket for this rulemaking.

B. Maine Indian Settlement Acts

    Before providing a more detailed discussion of the rationale 
relating to each element of EPA's analysis supporting this 
promulgation, the Agency first addresses a general complaint made by 
several commenters that EPA has developed a complex rationale for its 
disapproval of Maine's HHC and corresponding promulgation.
    EPA acknowledges that there are several steps in the Agency's 
analysis of how Maine's WQS must protect the uses of the waters in 
Indian lands, including application of the Agency's expert scientific 
and policy judgment. The basic concepts are as follows:
     The Indian settlement acts provide for the Indian tribes 
to fish for their individual sustenance in waters in Indian lands and 
effectively establish a sustenance fishing designated use cognizable 
under the CWA for such waters.
     The CWA and EPA's regulations mandate that water quality 
criteria must protect designated uses of waters provided for in state 
law. Designated uses are use goals of a water, whether or not they are 
being attained.
     When analyzing how water quality criteria protect a 
designated use, an agency must focus on the population that is 
exercising that use, and must assess the full extent of that use's 
goal, where data are available.
    The relevant explanatory details for each step of this rationale 
are presented below. But the underlying structure of the analysis is 
straightforward and appropriate under and consistent with applicable 
law.
    Another general comment EPA received was that the agency's approach 
``would impermissibly give tribes in Maine an enhanced status and 
greater rights with respect to water quality than the rest of Maine's 
population.'' Comments of Janet T. Mills, Maine Attorney General, (page 
2). EPA explains below why the analysis EPA presented in its February 
2015 decision and the proposal for this action is not only permissible, 
but also mandated by the CWA as informed by the Indian settlement acts. 
But as a general matter EPA disagrees that this action is impermissible 
because it accords the tribes in Maine ``greater rights'' or somehow 
derogates the water quality protection provided to the rest of Maine's 
population.
    EPA is addressing the particular sustenance fishing use provided 
for these tribes under Maine law and ratified by Congress. Because that 
use is confirmed in provisions in the settlement acts that pertain 
specifically and uniquely to the Indian tribes in Maine, EPA's analysis 
of the use and the protection of that use must necessarily focus on how 
the settlement acts intend for the tribes to be able to use the waters 
at issue here. However, Maine's claim that EPA is providing tribes in 
Maine ``greater rights'' than the general population is incorrect. In 
this action, EPA is not granting ``rights'' to anyone. Rather, EPA is 
simply promulgating

[[Page 92476]]

WQS in accordance with the requirements of the CWA--i.e., identifying 
the designated use for waters in Indian lands, and establishing 
criteria to protect the target population exercising that use. As 
explained above, in light of the Indian settlement acts, the designated 
use is sustenance fishing, the tribes are the target population, and 
EPA has selected the appropriate FCR of that target population. This 
approach, together with EPA's selection of 10-6 CRL, is 
consistent with Maine's approach to protecting the target population in 
Maine waters outside of Indian lands. EPA's rule provides a comparable 
level of protection for the target population (sustenance fishers) for 
the waters in Indian lands that Maine provides to the target population 
for its fishing designated use (recreational fishers) that applies to 
waters outside Indian lands.\33\ Further, the resulting HHC that EPA is 
promulgating in this rule protect both non-tribal members and tribal 
members in Maine. The great majority of the waters subject to the HHC 
are rivers and streams that are shared in common with non-Indians in 
the state or that flow into or out of waters outside Indian lands. It 
is not just the members of the Indian tribes in Maine who will benefit 
from EPA's action today.
---------------------------------------------------------------------------

    \33\ EPA recognizes that the final HHC also reflect inputs 
consistent with EPA's 2015 section 304(a) recommendations, which are 
not currently reflected in Maine's HHC. EPA anticipates that Maine 
will update its HHC consistent with these inputs in its next 
triennial review.
---------------------------------------------------------------------------

    One striking aspect of the comments EPA received on its proposal is 
that every individual who commented supported EPA's proposed action, 
including many non-Indians. Nearly all of the comments were 
individualized expressions of support, ranging from a profound 
recognition of the need to honor commitments made to the tribes in the 
Indian settlement acts to an acknowledgement that everyone in Maine 
benefits from improved water quality. It is notable that the record for 
this action shows that individuals in Maine who commented did not 
express concern that the tribes are being accorded a special status or 
that this action will in any way disadvantage the rest of Maine's 
population.
    As described in section II.B.1, EPA previously approved MIA 
sections 6207(4) and (9) as an explicit designated use for the inland 
waters of the reservations of the Southern Tribes and interpreted and 
approved Maine's designated use of ``fishing'' for all waters in Indian 
lands to mean ``sustenance fishing.'' Several commenters challenged 
EPA's conclusion that the Indian settlement acts in Maine have the 
effect of establishing a designated use that includes sustenance 
fishing. This section explains how the Indian settlement acts provide 
for the Indian tribes in Maine to fish for their sustenance, and 
responds to arguments that this conclusion violates the settlement 
acts. Section III.C explains how EPA, under the CWA, interprets those 
provisions of state law as a sustenance fishing designated use which 
must be protected by the WQS applicable to the waters where that use 
applies.
    As explained in more detail in the RTC document, MICSA, MIA, ABMSA, 
and MSA include different provisions governing sustenance practices, 
including fishing, depending on the type of Indian lands involved. In 
the reservations of the Southern Tribes, MIA explicitly reserves to the 
tribes the right to fish for their individual sustenance.\34\ In the 
trust lands of the Southern Tribes, MIA provides a regulatory framework 
that requires consideration of ``the needs or desires of the tribes to 
establish fishery practices for the sustenance of the tribes,'' among 
other factors.\35\ Congress clearly intended the Northern Tribes to be 
able to sustain their culture on their trust lands, consistent with 
Maine law, which amply accommodates a sustenance fishing diet.\36\ 
Therefore, each of these provisions under the settlement acts in its 
own way is designed to establish a land base for these tribes where 
they may practice their sustenance lifeways. Indeed, EPA received an 
opinion from the Solicitor of the United States Department of the 
Interior (DOI), which analyzed the settlement acts and concluded that 
the tribes in Maine ``have fishing rights connected to the lands set 
aside for them under federal and state statutes.'' \37\
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    \34\ 30 M.R.S. section 6207(4).
    \35\ 30 M.R.S. section 6207(1), (3).
    \36\ 102 S. Rpt. 136 (1991).
    \37\ Letter from Hilary C. Tompkins, Solicitor, Department of 
Interior, to Avi S. Garbow, General Counsel, EPA, January 30, 2015, 
a copy of which is in the docket supporting this action.
---------------------------------------------------------------------------

    In its February 2015 decision, EPA analyzed how the settlement acts 
include extensive provisions to confirm and expand the tribes' land 
base. The legislative record makes it clear that a key purpose behind 
that land base is to preserve the tribes' culture and support their 
sustenance practices. MICSA section 5 establishes a trust fund to allow 
the Southern Tribes and the Maliseets to acquire land to be put into 
trust. In addition, the Southern Tribes' reservations are confirmed as 
part of their land base.\38\ MICSA combines with MIA sections 6205 and 
6205-A to establish a framework for taking land into trust for those 
three Tribes, and laying out clear ground rules governing any future 
alienation of that land and the Southern Tribes' reservations. Sections 
4(a) and 5 of the ABMSA and section 7204 of the state MSA accomplish 
essentially the same result for the Micmacs, consistent with the 
purpose of those statutes to put that tribe in the same position as the 
Maliseets.
---------------------------------------------------------------------------

    \38\ 30 M.R.S. section 6205(1)(A) and (2)(A).
---------------------------------------------------------------------------

    EPA has concluded that one of the overarching purposes of the 
establishment of this land base for the tribes in Maine was to ensure 
their continued opportunity to engage in their unique cultural 
practices to maintain their existence as a traditional culture. An 
important part of the tribes' traditional culture is their sustenance 
lifeways. The legislative history for MICSA makes it clear that one 
critical purpose for assembling the land base for the tribes in Maine 
was to preserve their culture. The Historical Background in the Senate 
Report for MICSA opens with the observation that ``All three Tribes 
[Penobscot, Passamaquoddy and Maliseet] are riverine in their land-
ownership orientation.'' \39\ Congress also specifically noted that one 
purpose of MICSA was to avoid acculturation of the tribes in Maine:
---------------------------------------------------------------------------

    \39\ Sen. Rep. No. 96-957, at 11.

    Nothing in the settlement provides for acculturation, nor is it 
the intent of Congress to disturb the cultural integrity of the 
Indian people of Maine. To the contrary, the Settlement offers 
protections against this result being imposed by outside entities by 
providing for tribal governments which are separate and apart from 
the towns and cities of the State of Maine and which control all 
such internal matters. The Settlement also clearly establishes that 
the Tribes in Maine will continue to be eligible for all federal 
Indian cultural programs.\40\
---------------------------------------------------------------------------

    \40\ Id. at 17.

    As both the Penobscot and Maliseet extensively documented in their 
comments on this action, their culture relies heavily on sustenance 
practices, including sustenance fishing. So if a purpose of MICSA is to 
avoid acculturation and protect the tribes' continued political and 
cultural existence on their land base, then a key purpose of that land 
base is to support those sustenance practices.
    Several comments dispute that the settlement acts are intended to 
provide for the tribes' sustenance lifeways, and assert instead that 
their key purpose was to subject the tribes to the jurisdictional

[[Page 92477]]

authority of the state and treat tribal members identically to all 
citizens in the state. These comments do not dispute the evidence EPA 
relied on in February 2015 to find that Congress intended to support 
the continuation of the tribes' traditional culture. Rather, the 
commenters argue that the overriding purpose of the settlement acts was 
to impose state law, including state environmental law, on the tribes, 
which the commenters believe the state could do without regard to the 
settlement act provisions for sustenance fishing. These assertions 
reflect an overly narrow interpretation of the settlement acts, and 
EPA, with a supporting opinion from DOI, has concluded that the 
settlement acts both provide for the tribes' sustenance lifeways and 
subject the tribal lands to state environmental regulation. Those two 
purposes are not inconsistent, but rather support each other. It would 
be inconsistent for the state to codify provisions for tribal 
sustenance fishing in one state law, which was congressionally 
ratified, and then in another state law subject that practice to 
environmental conditions that render it unsafe.
    EPA disagrees with the comment that promulgation of the HHC 
violates the jurisdictional arrangement in MICSA and MIA. The assertion 
appears to be that the grant of jurisdiction to the state in the 
territories of the Indian tribes in Maine means that the tribes must 
always be subject to the same environmental standards as any other 
person in Maine. As EPA made clear in its February 2015 decision, the 
Agency agrees that MICSA grants the state the authority to set WQS in 
Indian territories. Making that finding, however, does not then lead to 
the conclusion that the state has unbounded authority to set WQS 
without regard to the factual circumstances and legal framework that 
apply to the tribes under both the CWA and the Indian settlement acts. 
No state has authority or jurisdiction to adopt WQS that do not comply 
with the requirements of the CWA. The state, like EPA and the tribes, 
is bound to honor the provisions of the Indian settlement acts. Here, 
the CWA, as informed by and applied in light of the requirements of the 
settlement acts, requires that WQS addressing fish consumption in these 
waters adequately protect the sustenance fishing use applicable to the 
waters. Because this use applies only to particular waters that pertain 
to the tribes, the WQS designed to protect the use will necessarily 
differ from WQS applicable to other waters generally in the state. This 
result does not violate the grant of jurisdiction to the state. Rather, 
the state retains the authority to administer the WQS program 
throughout the state, subject to the same basic requirements to protect 
designated uses of the waters as are applicable to all states.
    EPA also disagrees that promulgation of the HHC violates the so-
called savings clauses in MICSA, Pub. L. 96-420, 94 Stat. 1785 sections 
6(h) and 16(b), which block the application of federal law in Maine to 
the extent that law ``accords or relates to a special status or right 
of or to any Indian'' or is ``for the benefit of Indians'' and ``would 
affect or preempt'' the application of state law. EPA has consistently 
been clear that this action does not treat tribes in Maine in a similar 
manner as a state (TAS) or in any way authorize any tribe in Maine to 
implement tribal WQS under the federal CWA. Therefore, arguments about 
whether MICSA blocks the tribes from applying to EPA for TAS under CWA 
section 518(e) are outside the scope of, and entirely irrelevant to, 
EPA's promulgation of federal WQS.
    Additionally, EPA disagrees that its disapproval of certain WQS in 
tribal waters and this promulgation will ``affect or preempt the 
application of the laws of the State of Maine'' using a federal law 
that accords a special status to Indians within the meaning of MICSA 
section 6(h) or a federal law ``for the benefit of Indians'' within the 
meaning of section 16(b). With this promulgation, EPA is developing WQS 
consistent with the requirements of the CWA as applied to the legal 
framework and factual circumstances created by the Indian settlement 
acts. EPA here is acting under CWA section 303, which was not adopted 
``for the benefit of Indians,'' but rather sets up a system of 
cooperative federalism typical of federal environmental statutes, where 
states are given the lead in establishing environmental requirements 
for areas under their jurisdiction, but within bounds defined by the 
CWA and subject to federal oversight. In this case, the Indian 
settlement acts provide for the tribes to fish for their sustenance in 
waters in or adjacent to territories set aside for them, which has the 
effect of establishing a sustenance fishing use in those waters. 
Because that sustenance fishing use applies in those waters, CWA 
section 303 requires Maine and EPA to ensure that use is protected. It 
cannot be the case that the savings clauses in MICSA are intended to 
block implementation of the Indian settlement acts or MICSA itself.
    In the RTC document, EPA addresses in detail the distinctions 
contained in the Indian settlement acts for the Maine tribes and 
comments received by EPA on this point. In short, the settlement acts 
clearly codify a tribal right of sustenance fishing for inland, 
anadromous, and catadromous fish in the inland waters of the Penobscot 
Nation's and Passamaquoddy's reservations.\41\ EPA approved this right, 
contained in state law, as an explicit designated use. The Southern 
Tribes also have trust lands, to which the explicit sustenance fishing 
right in section 6207 of MIA does not apply, but which are covered by a 
regulatory regime under MIA that specifically provides for the Southern 
Tribes to exercise their sustenance fishing practices. The statutory 
framework for the Northern Tribes' trust lands provides for more direct 
state regulation of those tribes' fishing practices. Nevertheless, as 
confirmed by an opinion from the U.S. Department of the Interior,\42\ 
the Northern Tribes' trust lands include sustenance fishing rights 
appurtenant to those land acquisitions, subject to state regulation. 
Accordingly, EPA appropriately approved the ``fishing'' designated use 
as ``sustenance fishing'' for all waters in Indian lands.
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    \41\ 30 M.R.S. section 6207.
    \42\ Letter from Hilary C. Tompkins, Solicitor, Department of 
Interior, to Avi S. Garbow, General Counsel, EPA, January 30, 2015, 
a copy of which is in the docket supporting this action.
---------------------------------------------------------------------------

    Tribal representatives and members commented that EPA's 
promulgation of HHC is consistent with EPA's trust responsibility to 
the Indian tribes in Maine, and some suggested that EPA's trust 
relationship with the tribes compels EPA to take this action. 
Conversely, one commenter argued that this action is not authorized 
because the federal government has no obligation under the trust 
responsibility to take this action, and the Indian settlement acts 
create no specific trust obligation to protect the tribes' ability to 
fish for their sustenance. These comments raise questions about the 
nature and extent of the federal trust responsibility to the Indian 
tribes in Maine and the extent to which the trust is related to this 
action. EPA agrees that this action is consistent with the United 
States' general trust responsibility to the tribes in Maine. EPA also 
agrees that the trust relationship does not create an independent 
enforceable mandate or specific trust requirement beyond the Agency's 
obligation to comply with the legal requirements generally applicable 
to this situation under federal law, in this case the CWA as applied to 
the circumstances of the tribes in Maine under the settlement acts.

[[Page 92478]]

    Consulting with affected tribes before taking an action that 
affects their interests is one of the cornerstones of the general trust 
relationship with tribes. EPA has fulfilled this responsibility to the 
tribes in Maine. EPA has consulted extensively with the tribes to 
understand their interests in this matter. EPA has also carefully 
weighed input from the tribes, as it has all the comments the Agency 
received on this action.
    EPA does not agree that the substance of this action is compelled 
or authorized by the federal trust relationship with the tribes in 
Maine independent of generally applicable federal law. This action is 
anchored in two sets of legal requirements: First, the Indian 
settlement acts, which reserve the tribes' ability to engage in 
sustenance fishing; second, the CWA, which requires that this use must 
be protected. The trust responsibility does not enhance or augment 
these legal requirements, and EPA is not relying on the trust 
responsibility as a separate legal basis for this action. The Indian 
settlement acts created a legal framework with respect to these tribes 
that triggered an analysis under the CWA about how to protect the 
sustenance fishing use provided for under the settlement acts. This 
analysis necessarily involves application of EPA's WQS regulations, 
guidance, and science to yield a result that is specific to these 
tribes, but each step of the analysis is founded in generally 
applicable requirements under the CWA, not an independent specific 
trust mandate.

C. Sustenance Fishing Designated Use

    Several commenters challenged EPA's approval, in its February 2015 
Decision, of sections 6207(4) and (9) of the MIA as a designated use of 
sustenance fishing applicable to inland waters of the Southern Tribes' 
reservations. Several commenters also argued that EPA had no authority 
to approve Maine's ``fishing'' designated use with the interpretation 
that it means ``sustenance fishing'' for waters in Indian lands. 
Related to both approvals, the commenters argued that Maine had never 
adopted a designated use of ``sustenance fishing,'' thus EPA could not 
approve such a use, and that EPA did not follow procedures required 
under the CWA in approving any ``sustenance fishing'' designated use. 
EPA disagrees, as discussed in sections III.C.1 and 2.
1. EPA's Approval of Certain Provisions in MIA as a Designated Use of 
Sustenance Fishing in Reservation Waters.
    State laws can operate as WQS when they affect, create or provide 
for, among other things, a use in particular waters, even when the 
state has not specifically identified that law as a WQS.\43\ EPA has 
the authority and duty to review and approve or disapprove such a state 
law as a WQS for CWA purposes, even if the state has not submitted the 
law to EPA for approval.\44\ Indeed, EPA has previously identified and 
disapproved a Maine law as a ``de facto'' WQS despite the fact that 
Maine did not label or present it as such.\45\
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    \43\ See Florida Pub. Interest Grp v. EPA, 386 F.3d 1070, 1089-
90 (11th Cir. 2004) (holding that in order to determine whether a 
state law constitutes a WQS, a district court must ``look beyond the 
[state's] characterization of [the law]'' and ``determine[ ] whether 
the practical impact of the [law] was to revise [the state's WQS]'' 
irrespective of the state's ``decision not to describe its own 
regulations as new or revised [WQS]''); Pine Creek Valley Watershed 
Ass'n v. United States, 137 F. Supp. 3d 767, 776 (E.D. Pa. 2015) 
(deferring to EPA's determination on whether or not a state law 
constitutes a WQS).
    \44\ See EPA, What is a New or Revised Water Quality Standard 
Under CWA 303(c)(3)? Frequently Asked Questions, October 2012. See 
also, Friends of Merrymeeting Bay v. Olsen, 839 F. Supp. 2d 366, 375 
(D. Me. 2012) (``The EPA is under an obligation to review a law that 
changes a water quality standard regardless of whether a state 
presents it for review.''); Miccosukee Tribe of Indians v. EPA, 105 
F.3d 599, 602 (11th Cir. 1997) (``Even if a state fails to submit 
new or revised standards, a change in state water quality standards 
could invoke the mandatory duty imposed on the Administrator to 
review new or revised standards.'').
    \45\ Letter from Stephen S. Perkins, Director of Office of 
Ecosystem Protection, EPA, to William J. Schneider, Maine Attorney 
General (July 9, 2012) (disapproving as a WQS a state law that 
required prevention of river herring passage on St. Croix River); 
see Friends of Merrymeeting Bay, 839 F. Supp. 2d at 375 (indicating 
EPA must consider whether such state law has the effect of changing 
a WQS).
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    The MIA is binding law in the state, and sections 6207(4) and (9) 
in that law clearly establish a right of sustenance fishing in the 
inland reservation waters of the Southern Tribes. See Topic 3 of the 
RTC document for a more detailed discussion. In other words, the state 
law provides for a particular use in particular waters. It was 
therefore appropriate for EPA to recognize that state law as a water 
quality standard, and more specifically, as a designated use. EPA's 
approval of these MIA provisions as a designated use of sustenance 
fishing does not create a new federal designated use of tribal 
``sustenance fishing,'' but rather gives effect to a WQS in state law 
for CWA purposes in the same manner as other state WQS. Furthermore, 
contrary to commenters' assertions, EPA did not fail to abide by any 
required procedures before approving the MIA provisions as a designated 
use. They were a ``new'' WQS for the purpose of EPA review, because EPA 
had never previously acted on them. When EPA acts on any state's new or 
revised WQS, there are no procedures necessary for EPA to undertake 
prior to approval.\46\ The Maine state legislature, which has the 
authority to adopt designated uses, held extensive hearings reviewing 
the provisions of the MIA, including those regarding sustenance 
fishing.
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    \46\ See 33 U.S.C. 1313(c)(3) and 40 CFR part 131.
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2. EPA's Interpretation and Approval of Maine's ``Fishing'' Designated 
Use To Include Sustenance Fishing.
    In addition to approving certain provisions of MIA as a designated 
use in the Southern Tribes' inland reservation waters, EPA also 
interpreted and approved Maine's designated use of ``fishing'' to mean 
``sustenance fishing'' for all waters in Indian lands. EPA disagrees 
with comments that claim that EPA had no authority to do so because EPA 
had previously approved that use for all waters in Maine without such 
an interpretation. While EPA approved the ``fishing'' designated use in 
1986 for other state waters, prior to its February 2015 decision, EPA 
had not approved any of the state's WQS, including the ``fishing'' 
designated use, as being applicable to waters in Indian lands.
    Under basic principles of federal Indian law, states generally lack 
civil regulatory jurisdiction within Indian country as defined in 18 
U.S.C. 1151.\47\ Thus, EPA cannot presume a state has authority to 
establish WQS or otherwise regulate in Indian country. Instead, a state 
must demonstrate its jurisdiction, and EPA must determine that the 
state has made the requisite demonstration and has authority, before a 
state can implement a program in Indian country. Accordingly, EPA 
cannot approve a state WQS for a water in Indian lands if it has not 
first determined that the state has authority to do so.
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    \47\ Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 
520, 527 n.1. (1998) (``[g]enerally speaking, primary jurisdiction 
over land that is Indian country rests with the Federal Government 
and the Indian Tribe inhabiting it, and not with the States.''); see 
also Okla. Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 128 
(1993) (``[a]bsent explicit congressional direction to the contrary, 
we presume against a State's having the jurisdiction to tax within 
Indian Country . . . .'').
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    EPA first determined on February 2, 2015, that Maine has authority 
to establish WQS for waters in Indian lands. Consistent with the 
principle articulated above, it is EPA's position that all WQS 
approvals that occurred prior to this date were limited to state

[[Page 92479]]

waters outside of waters in Indian lands. With regard to the 
``fishing'' designated use, Maine submitted revisions to its water 
quality standards program now codified at 38 M.R.S. section 464-470, to 
EPA in 1986. This submittal included Maine's designated use of 
``fishing'' for all surface waters in the state. On July 16, 1986, EPA 
approved most of the revised WQS, including the designated uses for 
surface waters, without explicit mention of the ``fishing'' designated 
use or of the standards' applicability to waters in Indian lands. Maine 
did not expressly assert its authority to establish WQS in Indian 
waters until its 2009 WQS submittal, and EPA did not expressly 
determine that Maine has such authority until February 2015. Therefore, 
EPA did not approve Maine's designated use of ``fishing'' to apply in 
Indian waters in 1986, and EPA's approval of that use for other waters 
in Maine at that time was not applicable to Indian waters in Maine.
    EPA acknowledges the comment that, prior to February 2015, EPA had 
not previously taken the position that Maine's designated use of 
``fishing'' included a designated use of ``sustenance fishing.'' As 
explained herein, it was not until February 2, 2015, that EPA 
determined that Maine's WQS were applicable to waters in Indian lands, 
so it was not until then that EPA reviewed Maine's ``fishing'' 
designated use for those waters and concluded that, in light of the 
settlement acts, it must include sustenance fishing as applied to 
waters in Indian lands.
    EPA disagrees with comments that asserted that EPA could not 
approve the ``fishing'' designated use as meaning ``sustenance 
fishing'' for waters in Indian lands unless EPA first made a 
determination under CWA section 303(c)(4)(B) that the ``fishing'' 
designated use was inconsistent with the CWA. Because EPA had not 
previously approved the ``fishing'' designated use for waters in Indian 
lands, EPA had the duty and authority to act on that use in its 
February 2015 decision, and was not required to make a determination 
under CWA section 303(c)(4)(B) before it could interpret and approve 
the use for waters in Indian lands. Additionally, because the term 
``fishing'' is ambiguous in Maine's WQS, even if EPA had previously 
approved it for all waters in the state, it is reasonable for EPA to 
explicitly interpret the use to include sustenance fishing for the 
waters in Indian lands in light of the Indian settlement acts.\48\ This 
is consistent with EPA's recent actions and positions regarding tribal 
fishing rights and water quality standards in the State of 
Washington.\49\
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    \48\ See Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992) (holding 
that EPA's interpretation of state WQS in the NPDES context is 
entitled to ``substantial deference'').
    \49\ See Revision of Certain Federal Water Quality Criteria 
Applicable to Washington: 81 FR 85417 (November 28, 2016).
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    In acting on the ``fishing'' designated use for waters in Indian 
lands for the first time, it was reasonable and appropriate for EPA to 
explicitly interpret and approve the use to include sustenance fishing 
for the waters in Indian lands. This interpretation harmonized two 
applicable laws: The provision for sustenance fishing contained in the 
Indian settlement acts, as explained above in section III.B, and the 
CWA. Indeed, where an action required of EPA under the CWA implicates 
another federal statute, such as MICSA, EPA must harmonize the two 
statutes to the extent possible.\50\ This is consistent with 
circumstances where federal Indian laws are implicated and the Indian 
canons of statutory construction apply.\51\ Because the Indian 
settlement acts provide for sustenance fishing in waters in Indian 
lands, and EPA has authority to reasonably interpret state WQS when 
taking action on them, EPA necessarily interpreted the ``fishing'' use 
as ``sustenance fishing'' for these waters, lest its CWA approval 
action contradict and, as a practical matter, effectively limit or 
abrogate the Indian settlement acts (a power that would be beyond EPA's 
authority).\52\ Accordingly, EPA's interpretation of Maine's 
``fishing'' designated use reasonably and appropriately harmonized the 
intersecting provisions of the CWA and the Indian settlement acts.
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    \50\ See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 
551 U.S. 644, 664 (2007) (acknowledging EPA's duty to harmonize CWA 
and Endangered Species Act to give effect to both statutes where the 
Agency has discretion to do so); see also United States v. Borden 
Co., 308 U.S. 188, 198 (1939) (``When there are two acts upon the 
same subject, the rule is to give effect to both if possible.'').
    \51\ See Penobscot Nation v. Mills, 151 F. Supp. 3d at 213-214 
(applying the Indian canons of statutory construction to MIA and 
MICSA); see also Penobscot Nation v. Fellencer, 164, F.3d 706, 709 
(1st Cir. 1999) (applying Indian cannon to MICSA and citing to 
County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) 
(``it is well established that treaties should be construed 
liberally in favor of the Indians with ambiguous provisions 
interpreted for their benefit'')).
    \52\ See Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 
172, 202 (1999) (``Congress may abrogate Indian treaty rights, but 
it must clearly express its intent to do so.'').
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    Finally, one commenter argued that the settlement acts' provisions 
for sustenance fishing are merely exceptions to otherwise applicable 
creel limits and have no implications for the WQS that apply to the 
waters where the tribes are meant to fish. EPA does not agree with this 
narrow interpretation of the relationship between the provisions for 
tribal sustenance practices on the one hand and water quality on the 
other. Fundamentally, the tribes' ability to take fish for their 
sustenance under the settlement acts would be rendered meaningless if 
it were not supported under the CWA by water quality sufficient to 
ensure that tribal members can safely eat the fish for their own 
sustenance.
    When Congress identifies and provides for a particular purpose or 
use of specific Indian lands, it is reasonable and supported by 
precedent for an agency to consider whether its actions have an impact 
on a tribe's exercise of that purpose or use and to ensure through 
exercise of its authorities that its actions protect that purpose or 
use. For example, the Ninth Circuit Court of Appeals recently 
determined that the right of tribes in the State of Washington to fish 
for their subsistence in their ``usual and accustomed'' places 
necessarily included the right to an adequate supply of fish, despite 
the absence of any explicit language in the applicable treaties to that 
effect.\53\ Specifically, the Court held that ``the Tribes' right of 
access to their usual and accustomed fishing places would be worthless 
without harvestable fish.'' \54\ Similarly, it would defeat the purpose 
of MIA, MICSA, MSA, and ABMSA for the

[[Page 92480]]

tribes in Maine to be deprived of the ability to safely consume fish 
from their waters at sustenance levels. Consistent with this case law, 
the Department of the Interior provided EPA with a legal opinion which 
concludes that ``fundamental, long-standing tenets of federal Indian 
law support the interpretation of tribal fishing rights to include the 
right to sufficient water quality to effectuate the fishing right.'' 
\55\ If EPA were to ignore the impact that water quality, and 
specifically water quality standards under the CWA, could have on the 
tribes' ability to safely engage in their sustenance fishing practices 
on their lands, the Agency would be contradicting the clear purpose for 
which Congress ratified the settlement acts in Maine and provided for 
the establishment of Indian lands in the state. Therefore, it is 
incumbent upon EPA when applying the requirements of the CWA to 
harmonize those requirements with this Congressional purpose.
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    \53\ United States v. Washington, No. 13-35474, 2016 U.S. App. 
Lexis 11709 (9th Cir. June 27, 2016). See also United States v. 
Winans, 198 U.S. 371, 384 (1905) (tribe must be allowed to cross 
private property to access traditional fishing ground); Kittitas 
Reclamation District v. Sunnyside Valley Irrigation District, 763 
F.2d 1032, 1033-34 (9th Cir. 1985) (tribe's fishing right protected 
by enjoining water withdrawals that would destroy salmon eggs before 
they could hatch); Grand Traverse Band of Ottawa and Chippewa 
Indians v. Director, Mich. Dept of Nat. Resources, 141 F.3d 635 (6th 
Cir. 1989) (treaty right to fish commercially in the Great Lakes 
found to include a right to temporary mooring of treaty fishing 
vessels at municipal marinas because without such mooring the 
Indians could not fish commercially); Colville Confederated Tribes 
v. Walton, 647 F.2d 42, 47-48 (9th Cir. 1981) (implying reservation 
of water to preserve tribe's replacement fishing grounds); Winters 
v. United States, 207 U.S. 564, 576 (1908) (express reservation of 
land for reservation impliedly reserved sufficient water from the 
river to fulfill the purposes of the reservation); Arizona v. 
California, 373 U.S. 546, 598-601 (1963) (creation of reservation 
implied intent to reserve sufficient water to satisfy present and 
future needs).
    \54\ United States v. Washington, No. 13-35474, 2016 U.S. App. 
Lexis 11709 (9th Cir. June 27, 2016). The court also acknowledged 
that the fishing clause of the Stevens Treaties could give rise to 
other environmental obligations, but that those would need to be 
addressed on a case-by-case basis depending on the precise nature of 
the action. Id. at *18-19.
    \55\ Letter from Hilary C. Tompkins, Solicitor, Department of 
Interior, to Avi S. Garbow, General Counsel, EPA, January 30, 2015, 
a copy of which is in the docket supporting this action.
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D. Human Health Criteria for Toxics for Waters in Indian Lands
1. Target Population
    EPA received two comments that it improperly and without 
justification identified the tribes as the target population, as 
opposed to a highly exposed subpopulation, for the HHC for waters in 
Indian lands. On the contrary, EPA's approach is entirely consistent 
with EPA regulations and policy, as informed by the settlement acts.
    Pursuant to 40 CFR 131.11(a)(1), water quality criteria must be 
adequate to protect the designated uses. Developing HHC to protect the 
sustenance fishing designated use in waters in Indian lands necessarily 
involves identifying the population exercising that use as the target 
population.\56\ The tribes are not a highly exposed or high-consuming 
subpopulation in their own lands; they are the general population for 
which the federal set-aside of these lands and their waters was 
designed.\57\ Treating tribes as the target general population results 
in HHC sufficient under the CWA to ensure that the tribes' ability to 
exercise the designated use of sustenance fishing, as provided for in 
the settlement acts, is not substantially affected or impaired. 
Therefore, the tribal population must be the focus of the risk 
assessment supporting HHC for the waters to which the sustenance 
fishing use applies. To do otherwise risks undermining the purpose for 
which Congress established and confirmed the tribes' land base, as 
described more fully in section III.B.
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    \56\ One of the commenters, Maine's Attorney General, concedes 
as much. Her objection to EPA's approach rests on her assertion that 
there is no designated use of sustenance fishing for the waters in 
Indian lands. But she recognizes that had the Maine Legislature 
adopted proposed legislation for a ``subsistence fishing'' 
designated use for a portion of the Penobscot River, the adoption of 
that use would have protected the subsistence fishers as the target 
population for the stretch of the river to which the use applied. 
See Comments of Maine's Attorney General at 11.
    \57\ EPA recognizes that tribal members will not be the only 
population fishing from some of these waters. On major rivers such 
as the Penobscot River, for example, the general population has the 
right to pass through the waters in Indian lands. The presence of 
some nonmembers fishing on these waters, however, does not change 
the fact that the resident population in the Indian lands is made up 
of tribal members who expect to fish for their sustenance in the 
waters in Indian lands pursuant to the settlement acts.
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    Contrary to the commenters' claims, EPA's 2000 Methodology does not 
mandate that the tribes be treated as a highly exposed subpopulation. 
EPA's general approach in the 2000 Methodology, and in deriving 
national CWA section 304(a) recommended criteria, is for HHC to provide 
a high level of protection for the general population, while 
recognizing that more highly exposed ``subpopulations'' may face 
greater levels of risk.\58\ However, in addition to recommending 
protection of the general population based on fish consumption rates 
designed to represent ``the general population of fish consumers,'' the 
2000 Methodology recommends that states assess whether there might be 
more highly exposed subpopulations or ``population groups'' that 
require the use of a higher fish consumption rate to protect them as 
the ``target population group(s).'' \59\ The 2000 Methodology does not 
speak to or expressly envision the unique situation of setting HHC for 
waters where there is a tribal sustenance fishing designated use. 
Nevertheless, it is entirely consistent with the 2000 Methodology for 
EPA to identify the tribes as the target general population for 
protection, rather than as a highly exposed subpopulation, and to apply 
the 2000 Methodology's recommendations on exposure for the general 
population, including the FCR and CRL, to the tribal target population.
---------------------------------------------------------------------------

    \58\ USEPA. 2000. Methodology for Deriving Ambient Water Quality 
Criteria for the Protection of Human Health (2000). U.S. 
Environmental Protection Agency, Office of Science and Technology, 
Washington, DC. EPA 822-B-00-004, pp. 2-1 to 2-3.
    \59\ Id., pp. 4-24 to 4-25.
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2. Wabanaki Study
    EPA received several comments that the FCR of 286 g/day, derived to 
support the sustenance fishing use, and used in the calculation of the 
promulgated HHC, is too high and not based on sound science. In 
particular, commenters asserted that it was improper for EPA to rely on 
the Wabanaki Study because it is irrelevant and aspirational. These 
commenters instead prefer the use of a 1992 study conducted by McLaren/
Hart--ChemRisk of Portland, Maine (``the 1992 ChemRisk Study'').\60\ 
EPA disagrees for the following reasons.
---------------------------------------------------------------------------

    \60\ ChemRisk, A Division of McLaren Hart, and HBRS, Inc., 
Consumption of Freshwater Fish by Maine Anglers, as revised, July 
24, 1992.
---------------------------------------------------------------------------

    After considering other sources, including the 1992 ChemRisk Study 
(see discussion below), EPA derived the FCR from a peer-reviewed 
estimate of traditional sustenance fish consumption from the Wabanaki 
Study. EPA finds that the Wabanaki Study used a sound methodology (peer 
reviewed, written by experts in risk assessment and anthropology), and 
contains the best currently available information for the purpose of 
deriving an FCR for HHC adequate to protect present day sustenance 
fishing for such waters. It is the only local study focused on the 
tribal members and areas most heavily used by those members today. 
While it relies on daily caloric and protein intake to derive heritage 
FCRs, the FCR of 286 g/day is also the best currently available 
estimate for contemporary tribal sustenance level fish consumption for 
waters where the sustenance fishing designated use applies.
    In addition, EPA consulted with tribal governments to obtain their 
views on the suitability of the Wabanaki Study and any additional 
relevant information to select a FCR for this final rulemaking. The 
tribes represented that the Wabanaki study and corresponding rate of 
286 g/day is an appropriate and accurate portrayal of their present day 
sustenance fishing lifeway, absent significant improvement in the 
availability of anadromous fish species, and EPA gave significant 
weight to the tribes' representations.\61\
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    \61\ Indeed, in developing its own 2014 tribal water quality 
criteria, the Penobscot Nation used a FCR of 286 g/day. The Nation 
explained that it chose the inland non-anadromous total FCR of 286 
g/day presented in the Wabanaki Study because, although the 
Penobscot lands are in areas that would have historically supported 
an inland anadromous diet (with total FCR of 514 g/day), the 
contemporary populations of anadromous species in Penobscot waters 
are currently too low to be harvested in significant quantities. 
Penobscot Nation, Department of Natural Resources, Response to 
Comments on Draft Water Quality Standards, September 23, 2014, p. 9.

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[[Page 92481]]

    As explained in EPA's disapproval and preamble to the proposed 
rule, the data from the ChemRisk Study are not suitable as a source for 
deriving the FCR for waters in Indian lands in Maine. That study was 
not a survey of tribal sustenance fishers in tribal waters. Rather, it 
was a statewide recreational angler survey that polled anglers with 
state fishing licenses and was not a survey intended to characterize 
tribal fish consumption in tribal waters. As explained by tribal 
representatives both in comments on Maine's 2012 revisions and in 
comments on this rule, and by DEP in its response to comments on the 
2012 revisions, tribal members are not necessarily required to get 
state licenses to fish and therefore were likely underrepresented in 
the survey.\62\
---------------------------------------------------------------------------

    \62\ Id., Exhibit 8, pages 14 and 19; June 20, 2016, Letter from 
Chief Brenda Commander, Houlton Band of Maliseet Indians, to Gina 
McCarthy, Administrator, EPA, page 15.
---------------------------------------------------------------------------

    In addition, EPA disagrees with commenters who assert that there 
were no fish advisories or that there were an insignificant number of 
river miles covered by fish advisories during the time of the ChemRisk 
Study. It is well documented that fish advisories were in place on some 
waters in Maine at the time of the ChemRisk Study. As documented by 
Maine's Department of Health and Human Services in a 2008 history of 
dioxin fish consumption advisories in Maine,\63\ fish advisories were 
first issued in Maine on the Androscoggin River in 1985 and on the 
Kennebec and Penobscot River in 1987, before the ChemRisk Study survey 
was conducted. While relative to the state as a whole this may seem to 
be a small portion of river miles that were affected by a fish 
consumption advisory, the Penobscot River is a very large portion of 
the sustenance fishery for the Penobscot Indian Nation, and it is a 
waterbody with a high profile and symbolic significance in the Indian 
community.
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    \63\ Smith, Andrew E., and Frohmberg, Eric, Evaluation of the 
Health Implications of Levels of Polychlorinated Dibenzo-p-Dioxins 
(dioxins) and Polychlorinated Dibenzofurans (furans) in Fish from 
Maine Rivers, Maine Department of Health and Human Service, January, 
2008, pages 2-3.
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    Further, as documented by DEP in its response to comments on its 
2012 WQS revisions, during the time that the ChemRisk survey was 
conducted:

    [P]ublic awareness of historical pollution in industrialized 
rivers can be expected to have suppressed fish consumption on a 
local basis. The Department is unable to quantify the extent of 
suppression due to historical pollution in the major rivers or the 
dioxin advisories in place at the time of the ChemRisk study, but 
believes that the ChemRisk (Ebert et al.) estimates of fish 
consumption for rivers and streams as well as the inclusive `all 
waters' categories are likely to have been affected to some 
degree.\64\
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    \64\ January 14, 2013, Letter from Patricia Aho, DEP to Curt 
Spalding, EPA, regarding ``USEPA Review of P.L. 2011, Ch. 194 and 
revised 06-096 CMR 584'', Exhibit 8, pages 20-21.
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3. Cancer Risk Level
    With respect to the cancer risk management value used in deriving 
the HHC of 10-6, one commenter noted that this value was 
unduly protective of public health while another implied the Agency 
could adopt a more protective risk management level, and several 
supported EPA's use of 10-6. In promulgating HHC for the 
tribes in Maine, EPA incorporated an excess cancer risk level of 
10-6 as the appropriate target level for two reasons. First, 
it is consistent with Maine DEP Rule 06-096, Chapter 584, which EPA 
approved for waters in Indian lands on February 2, 2015, and which 
specifies that water quality criteria for carcinogens must be based on 
a 10-6 CRL.\65\ Second, it is consistent with EPA guidance 
that states, ``For deriving CWA section 304(a) criteria or promulgating 
water quality criteria for states and tribes under Section 303(c) based 
on the 2000 Human Health Methodology, EPA intends to use the 
10-6 risk level, which the Agency believes reflects an 
appropriate risk for the general population.'' \66\ As explained above, 
EPA considers the tribes to be the general target population for waters 
in Indian lands. In promulgating HHC that correspond to an excess 
cancer risk level of 10-6 for tribes in Maine, not only is 
EPA acting consistent with both EPA guidance and Maine's existing rule, 
but EPA is providing the tribes engaged in sustenance fishing in waters 
in Indian lands with an equivalent level of cancer risk protection as 
is afforded to the general population in Maine outside of waters in 
Indian lands.
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    \65\ The only exception from the requirement to use a CRL of 
10-6 in Chapter 584 is for arsenic, for which a CRL of 
10-4 is required. EPA disapproved the arsenic CRL for 
waters in Indian lands.
    \66\ USEPA. 2000. Methodology for Deriving Ambient Water Quality 
Criteria for the Protection of Human Health. U.S. Environmental 
Protection Agency, Office of Water, Washington, DC. EPA-822-B-00-
004, p. 2-6.
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4. Trophic Level Specific Fish Consumption Rates
    Since the Wabanaki Study presented estimates of the total amount of 
fish and aquatic organisms consumed but not the amount consumed from 
each trophic level, for the purpose of developing HHC for the Maine 
tribes, EPA assumed that Maine tribes consume the same relative 
proportion of fish and aquatic organisms from the different trophic 
levels 2 through 4 as is consumed by the adult U.S. population. As 
identified in the 2015 criteria update, the relative percent of the 
total fish consumption rate for trophic levels 2 through 4 for the 
adult U.S. population amounts to 36%, 40%, and 24%.\67\ Accordingly, 
EPA adjusted the 286 g/day total tribal fish consumption rate by these 
same percentages and arrived at trophic-specific fish consumption rates 
of 103 g/day (trophic level 2), 114 g/day (trophic level 3), and 68.6 
g/day (trophic level 4). These trophic specific fish consumption rates 
were thus used in deriving the HHC for those compounds for which the 
2015 criteria update included trophic level specific BAFs. For 
compounds where, in 2015, EPA estimated BAFs from laboratory-measured 
BCFs and therefore derived a single pollutant-specific BAF for all 
trophic levels, and where EPA's existing 304(a) recommended human 
health criteria for certain pollutants still incorporate a single BCF 
and those pollutants are included in this final rule, EPA derived the 
HHC using a total fish consumption rate of 286 g/day.
---------------------------------------------------------------------------

    \67\ USEPA. 2014. Estimated Fish Consumption Rates for the U.S. 
Population and Selected Subpopulations (NHANES 2003-2010). EPA-820-
R-14-002. https://www.epa.gov/sites/production/files/2015-01/documents/fish-consumption-rates-2014.pdf.
---------------------------------------------------------------------------

    The Penobscot Nation requested EPA use a slightly different 
weighting scheme when refining the fish consumption rate based on the 
trophic levels of the fish and shellfish species they consume. While 
EPA recommends the use of local data relevant to the population of 
interest whenever possible in deriving human health criteria, such data 
must be from a sound scientific study before it can be utilized. The 
Penobscot Nation did not provided adequate information to support a 
different trophic level weighting scheme. See Topic 5 in the RTC 
document for a more detailed response.
5. Geographic Extent of Waters To Which the HHC Apply
    The HHC contained in the rule are designed to protect the 
designated use of sustenance fishing as exercised by the tribes in 
Maine. The HHC thus apply to waters where that designated use is 
approved. EPA approved a sustenance fishing designated use in two 
general categories of waters: (1) Waters in Indian lands, and (2) 
waters outside Indian lands where the sustenance fishing right reserved 
in MIA section

[[Page 92482]]

6207(4) applies.\68\ The first category, ``waters in Indian lands,'' 
covers waters within the tribes' reservations and trust lands as 
provided for under the settlement acts. The second category applies in 
the limited circumstances where it is determined that a Southern 
Tribe's sustenance fishing right reserved in MIA section 6207(4) 
extends to a waterbody outside of its reservation as provided for under 
the settlement acts. As explained below, this situation currently 
exists in only one waterbody, a clearly delineated stretch of the 
Penobscot River.
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    \68\ For ``waters in Indian lands,'' this final rule promulgates 
HHC as well as six other WQS (narrative and numeric bacteria 
criteria for the protection of primary contact recreation and 
shellfishing; ammonia criteria for protection of aquatic life in 
fresh waters; provisions that ensure that WQS apply to HHC even if 
they are naturally occurring; a mixing zone policy; a pH criterion 
for fresh waters; and tidal temperature criteria). For the second 
category of waters, where there is a sustenance fishing designated 
use outside of waters in Indian lands, the rule promulgates only the 
HHC. This response focuses on the HHC because the HHC apply to the 
broadest set of tribal-related waters and because the comments 
addressing the geographical scope of the rule are largely framed in 
terms of concerns about the HHC.
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    The outer bounds of waters that may fall within the two categories 
of the rule are based on the settlement acts and are thereby generally 
identifiable. The rule, however, does not identify the specific 
boundaries of each waterbody or portion thereof to which the HHC apply. 
Whether a specific waterbody falls within one of these categories will 
depend on the status of such water under applicable federal and state 
law. The status of such a waterbody may therefore be determined as a 
result of litigation or other legal developments regarding that 
specific waterbody. The two general categories of waters to which the 
HHC apply, however, will remain constant.
    Three commenters asserted that this approach is overly broad and 
vague. EPA disagrees. Here, EPA has clearly described the specific 
categories of waters to which this rule applies, which flow directly 
from and are bounded by the express provisions of the settlement acts. 
The purpose of the rule is to establish WQS that address EPA's 
disapprovals and necessity determination and adequately protect 
applicable designated uses. It is both reasonable and appropriate, and 
consistent with prior practice under the CWA, for EPA to promulgate 
these WQS without a final adjudication or determination of the precise 
boundaries of each specific waterbody that falls within each category, 
so long as the WQS protect the uses and clearly apply only to waters 
subject to those uses. As described below, the extent of waters in 
Indian lands is largely established under the settlement acts and 
subsequent trust conveyances that have occurred under the terms of 
those acts. But there are isolated disputes and one pending lawsuit 
regarding the boundaries of Indian lands and the geographic extent of 
tribal sustenance fishing rights. EPA's approach is designed to be 
responsive to the potential that these disputes could result in 
clarifications of the particular boundaries of the disputed waters, 
while maintaining protection of the tribes' sustenance fishing use.\69\
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    \69\ It is important to note that EPA has expressly answered the 
question of who has jurisdiction over all the waters involved in 
this matter, irrespective of which category they fall under or which 
use(s) and criteria apply. EPA did so in its February 2015 decision 
when it determined that the state has jurisdiction to set WQS over 
all waterbodies in Maine, including those within tribal reservations 
and trust lands. EPA is also determining that the HHC at issue will 
apply only where designated use of sustenance fishing applies. EPA 
is not, however, making any determinations in this rulemaking on the 
narrower technical question regarding the full extent of precise 
waters to which that use, and thus the HHC, apply.
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a. Adequate Notice
    Although this rulemaking does not identify the exact boundaries of 
each waterbody or portion thereof covered by the rule, it nevertheless 
provides adequate notice to potentially regulated parties because the 
categories are clearly described, and waters that could reasonably fall 
within these two categories are either precisely described in the 
settlement acts or, in circumstances where there are ongoing disputes 
or uncertainties, located in limited areas in Maine representing a 
small fraction of all waters within the state. In fact, any 
uncertainties as to the scope of waters in Indian lands largely pertain 
to particular stretches of the Penobscot and St. Croix Rivers. EPA 
anticipates that any existing uncertainty will be addressed by the 
current litigation regarding the Main Stem of the Penobscot River and 
DOI's work with the Passamaquoddy Tribe to determine the status of the 
relevant stretch of the St. Croix River.
    The first category--``waters in Indian lands''--covers waters 
within a tribe's reservation or trust lands. The tribes' trust lands 
are all the result of modern conveyances recorded after the 1980 
settlements, the boundaries of which are described in the deeds for 
those parcels. Although there are ongoing disputes over the extent of 
some of the reservation lands, the Indian settlement acts identify the 
outer bounds of what could reasonably be identified as reservation 
land. In the Economic Analysis conducted for this rulemaking, EPA took 
a conservative approach and identified all discharges for which there 
is any reasonable potential that they discharge to waters in Indian 
lands or their tributaries. In doing so, EPA identified a total of only 
33 facilities, a small subset of the 478 Maine Pollutant Discharge 
Elimination System (MEPDES) permitted dischargers in the state.
    One commenter expressed concern that the boundaries of the 
sustenance fishing designated use as it applies to the tribes' trust 
lands may expand if any of the tribes exercise what remaining authority 
they may have under the settlement acts to purchase and take more land 
into trust outside the reservations. However, EPA did not intend for 
its approval and disapproval decisions on WQS for waters in Indian 
lands, or for this rule, to apply to waters that may be part of after-
acquired trust lands. EPA's promulgation of HHC to address the 
disapprovals is thus limited to waters in trust lands as of February 2, 
2015, and waters in the Southern Tribes' reservations. EPA's 
promulgation of HHC in accordance with the Administrator's 
determination is likewise limited. The sustenance fishing designated 
use and appropriate HHC would not apply to any waters in after-acquired 
trust lands until such time as the state or EPA took further action 
under the CWA. This step would give interested parties an opportunity 
to comment on that action. EPA also notes that where the settlement 
acts have not already specifically identified parcels that qualify to 
be taken into trust, they clearly provide for the state to receive 
notice of any trust acquisition.\70\
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    \70\ 30 MRSA 6205-A(1); 30 MRSA 7204.
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    The second category is quite narrow, limited to waterbodies outside 
of Indian lands where the Southern Tribes' sustenance fishing right 
reserved in MIA section 6207(4) applies. Currently, the Main Stem of 
the Penobscot River is the only waterbody in the state that has been 
adjudicated to be a waterbody outside of Indian lands to which a tribe, 
the Penobscot Nation, has a right to sustenance fish based in MIA.\71\ 
The ``Main Stem'' addressed by the court in the Mills litigation is 
clearly identified as ``a portion of the Penobscot River and stretches 
from Indian Island north to the confluence of the East and West 
Branches of the Penobscot River.'' \72\ Significantly, the court in 
Mills concluded that the Penobscot Nation has a sustenance fishery 
reservation, under MIA section 6207, in ``the waters

[[Page 92483]]

adjacent to its island reservation,'' under MIA section 6203.\73\ 
Accordingly, in scenarios like the one addressed by the court in Mills, 
waters that fall under this second category will likely share a 
geographic nexus with the Southern Tribes' reservations.
---------------------------------------------------------------------------

    \71\ Penobscot Nation v. Mills, 151 F. Supp. 3d at 222-223.
    \72\ Id. at 186.
    \73\ Id. at 221-222.
---------------------------------------------------------------------------

    This second category thus represents a limited universe of 
potential waters that fall outside the existing waters in Indian lands 
only to the extent the fishing right reserved in MIA section 6207(4) 
extends beyond the reservation of a Southern Tribe under MIA section 
6203 under the reasoning of the U.S. District Court in the Mills 
litigation. In the event the law of the case in the Mills litigation 
changes, it is also possible that no waters would fall within this 
second category. Accordingly, the waters covered by this rule are at 
most the waters in Indian lands and the limited additional waters where 
a Southern Tribe has a right to sustenance fish, which will likely 
share a geographic nexus with the tribes' reservations.
b. General Approach
    Under the CWA, it is not uncommon for a state, authorized tribe, or 
EPA to take an approach, when promulgating WQS (i.e., designated uses, 
water quality criteria, and antidegradation policies), of identifying a 
category of waters to which the WQS apply, where additional information 
will need to be gathered before the implementing agency can determine 
whether such WQS applies to any specific waterbody. For these WQS, any 
uncertainties regarding applicability to a specific waterbody are 
appropriately resolved as the standards are implemented through various 
actions under the CWA, such as NPDES permitting and listing of impaired 
waters under section 303(d) of the CWA, among others.
    An example of this approach already in effect in Maine involves the 
state's criteria for dissolved oxygen (DO). Maine's longstanding DO 
criteria for Class B and C waters include generally applicable criteria 
as well as more protective criteria that apply only to fish spawning 
areas in the colder months.\74\ The DO criteria do not list each 
specific fish spawning area in Class B or C waters, nor do the more 
general classifications of fresh waters at 38 M.R.S. 467 and 468. 
Rather, Maine must determine whether a spawning area is implicated on a 
permit-by-permit basis.\75\ Similarly, Maine's WQS contain certain 
natural conditions provisions that alter the way in which pollutants 
may be treated for WQS purposes if they are naturally occurring.\76\ 
The waters in which such conditions occur are not identified in the WQS 
themselves but rather must be determined on a case-by-case basis.
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    \74\ 38 M.R.S. sections 465.3.B and 465.4.B, respectively. Note 
that as part of this rulemaking, EPA is promulgating dissolved 
oxygen criteria for Class A waters, also with specific criteria that 
apply to fish spawning areas.
    \75\ 06-096-585 Code of Maine Rules, Chapter 584, Surface Water 
Quality Criteria for Toxic Pollutants.
    \76\ This rule includes provisions to ensure that these natural 
conditions WQS are not applied to HHC.
---------------------------------------------------------------------------

    There are numerous examples from other states identifying general 
categories of waters to which certain standards apply. For example, the 
State of Wisconsin has several narrative water quality criteria that 
apply to ``wetlands,'' defined as ``an area where water is at, near or 
above the land surface long enough to be capable of supporting aquatic 
or hydrophytic vegetation and which has soils indicative of wet 
conditions.'' \77\ Florida has promulgated numeric interpretations of 
its narrative nutrient criteria that apply to ``streams,'' defined as 
``a predominantly fresh surface waterbody with perennial flow in a 
defined channel with banks during typical climatic and hydrologic 
conditions for its region within the state,'' but excluding certain 
non-perennial stream segments, ditches, canals, and other conveyances 
that have various characteristics as defined in the regulation.\78\ 
Whether a specific discharge implicates a waterbody that falls within 
these general categories, and thus whether the associated water quality 
criteria apply, is left to the implementing agency to determine by 
applying the case-specific facts to the general category definition.
---------------------------------------------------------------------------

    \77\ Wis. Admin. Code NR section 103.03 (2016). For additional 
examples of states with WQS for ``wetlands,'' see 5 Colo. Code Regs. 
section 1002-31.11 (LexisNexis 2016); Iowa Admin. Code r. 567-61.3 
(2016); Minn. R. 7050.0186 (2016)l 117 Neb. Admin. Code section 7-
001 (2015); 15A N.C. Admin. Code 02B.0231 (2016); Ohio Admin Code 
3475-1-50.
    \78\ Fla. Admin. Code. Ann. r. 62-302.200 (2016).
---------------------------------------------------------------------------

    EPA is taking a similar approach here, by defining two general 
categories of waters covered by this rule. The determination of whether 
a specific waterbody falls within one of these categories will be made, 
in the first instance, by the implementing (e.g., permitting) 
authority. Determining whether a waterbody is within one of the two 
categories covered by EPA's rule will require application of the facts 
relevant to that particular waterbody to the definition of the 
category. However, disputes regarding the extent of waters which may be 
subject to this rule are primarily limited to stretches of two 
waterbodies, as described above. Therefore, EPA anticipates that the 
case-by-case identification of whether a waterbody is covered by this 
rule will be straight-forward in most instances.
E. Other Water Quality Standards
1. Mixing Zone Policy for Waters in Indian Lands
    Two commenters asserted that EPA does not have the legal authority 
or the scientific basis to ban mixing zones for bioaccumulative 
pollutants outside the Great Lakes. EPA disagrees. EPA's authority to 
promulgate a mixing zone policy, and to prohibit its use for 
bioaccumulative pollutants, derives from section 303(c) of the CWA. 
While states are not required to adopt mixing zone policies, when a 
state includes a mixing zone policy in its water quality standards, the 
policy is subject to EPA's review and approval or disapproval. 40 CFR 
131.13. Adoption of a mixing zone policy is necessary for a mixing zone 
to be authorized in the issuance of a CWA discharge permit. EPA 
disapproved Maine's mixing zone policy for waters in Indian lands 
because it did not meet the requirements of the CWA. Recognizing that 
Maine intended to authorize mixing zones as part of its water quality 
standards, EPA, pursuant to CWA section 303(c)(4)(A), is now 
promulgating a mixing zone policy that includes protections that were 
missing from Maine's policy that EPA disapproved. EPA has determined 
that a ban on a mixing zone for bioaccumulating pollutants is 
reasonable and appropriate for the reasons discussed below, and nothing 
in CWA section 303(c) or EPA's implementing regulations constrains 
EPA's legal authority to do so.
    EPA guidance has long cautioned states and tribes against mixing 
zone policies that allow mixing zones for discharges of bioaccumulative 
pollutants, since they may cause significant ecological and human 
health risks such that the designated use of the waterbody as a whole 
may not be protected.79 80 81 EPA's WQS Handbook notes that 
this is particularly the case where mixing zones may encroach on

[[Page 92484]]

areas used for fish harvesting. The waters in Indian lands, to which 
this mixing zone policy will apply, not only are used for fish 
harvesting but have a designated use of sustenance fishing. By their 
very nature, bioaccumulative pollutants are those that accumulate in 
fish and shellfish and other organisms. Moreover, as EPA has explained 
elsewhere, the effects of such pollutants are not short term, nor are 
they limited to a localized zone of initial dilution.\82\ Since the 
effects could be persistent and occur well beyond the mixing zone, 
there is no assurance that all designated uses would be protected. EPA 
is particularly concerned about the potential adverse effects of such a 
mixing zone on the sustenance fishing use for those reasons. EPA also 
notes that the state has not in the past granted mixing zones for 
bioaccumulative pollutants, and neither the state nor the regulated 
community in Maine have raised a concern in their comments about EPA's 
proposal that mixing zones cannot be authorized for bioaccumulative 
pollutants. Therefore, EPA's final rule includes the prohibition on a 
mixing zone for bioaccumulative pollutants.
---------------------------------------------------------------------------

    \79\ USEPA. 1991. Technical Support Document for Water Quality-
based Toxics Control. US Environmental Protection Agency, Office of 
Water, Washington, DC. Section 2.2.2, p. 34; Section 4.3.1, p. 71; 
Section 4.3.4, p. 72; Section 4.6.2, p. 87. EPA 505-290-001.
    \80\ Final Rule to Amend the Final Water Quality Guidance for 
the Great Lakes System to Prohibit Mixing Zones for Bioaccumulative 
Chemicals of Concern, 65 FR 67638, 67641-42 (November 13, 2000); 40 
CFR part 132.
    \81\ USEPA. 2014. Water Quality Standards Handbook, Chapter 5 at 
5-8. EPA 820-B-14-008.
    \82\ Id.
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2. Bacteria Criteria for Waters in Indian Lands
a. Recreational Bacteria Criteria
    EPA received one comment in opposition to the proposed recreational 
bacteria criteria. Maine DEP objected to EPA's inclusion of wildlife 
sources in the scope of the bacteria criteria for several reasons. It 
argued that inclusion of wildlife sources is beyond the scope of the 
CWA, which DEP asserts is only concerned with human pollution, and that 
E.coli are used only as an indicator of human sewage. It also asserted 
that EPA incorrectly ``construed `animal sources' of bacteria from 
studies as equivalent to naturally occurring `wildlife sources' in the 
proposed rule''; that EPA cited to only one study in EPA's 2012 
Recreational Water Quality Criteria (RWQC) that links potential human 
health risks with non-human sources of fecal contamination; and that 
because bacteria from natural sources are likely to be ``temporal,'' 
removing a use (recreation in and on the water) simply due to a high 
level of E. coli where the bacteria source is of natural origins ``is, 
at best, unwise.'' \83\ None of these comments provides a basis for 
excluding wildlife sources from EPA's rule, which is based on the 2012 
recommended RWQC.
---------------------------------------------------------------------------

    \83\ The commenter also refers to the 1997 Guidance 
(``Establishing Site Specific Aquatic Life Criteria Equal to Natural 
Background'') ``cited by EPA,'' and states that it ``stands for 
possible reevaluation of uses based on known background 
concentrations not establishing criteria which necessitates 
regulation of naturally occurring bacteria. . . .'' EPA did not cite 
to that guidance in the context of the proposed bacteria criteria, 
and it has no bearing on EPA's decision to include wildlife sources 
in the scope of the criteria.
---------------------------------------------------------------------------

    First, the CWA does not limit EPA to consideration of human causes 
of pollution when developing water quality criteria protective of human 
health. CWA section 502(23) defines ``pathogen indicator'' to mean ``a 
substance that indicates the potential for human infectious disease'' 
with no limitation on source. EPA's recommended RWQC identify levels of 
fecal indicator bacteria (which include fecal coliforms, E.coli, 
enterococci or Enterococcus spp.) that will be protective of human 
health. Those pathogen indicators are not limited to pathogens coming 
only from human sources.\84\
---------------------------------------------------------------------------

    \84\ USEPA. 2012. Recreational Water Quality Criteria. U.S. 
Environmental Protection Agency, Office of Water, Washington, DC. 
Office of Water 820-F-12-058, pages 1-9.
---------------------------------------------------------------------------

    Second, E. coli are typically found in the digestive systems of 
warm-blooded animals, and can be used to indicate the presence of fecal 
material in surface waters regardless of their origin, whether from 
humans, domestic animals, or wildlife. The literature provides many 
studies documenting wildlife as sources of E. coli.85 86 87 
For decades, EPA's regulatory premise concerning recreational water 
quality has been that nonhuman-derived human pathogens, including those 
from wildlife, in fecally contaminated waters present a potential risk 
to human health.\88\ EPA has investigated sources of fecal 
contamination in its Review of Published Studies to Characterize 
Relative Risks from Different Sources of Fecal Contamination in 
Recreational Waters \89\ and Review of Zoonotic Pathogens in Ambient 
Waters,\90\ and determined that both human and animal feces, including 
feces from wildlife, in recreational waters do pose potential risks to 
human health. EPA again confirmed, in the development of the 2012 RWQC, 
that wildlife can carry both zoonotic pathogens capable of causing 
illness in humans and fecal indicator bacteria, and these microbes can 
be transmitted to surface waters.\91\
---------------------------------------------------------------------------

    \85\ Levesque, B., P. Brousseau, P. Simard, E. Dewailly, M. 
Meisels, D. Ramsay, and J. Joly. 1993. Impact of the ring-billed 
gull (Larus delawarenesis) on the microbiological quality of 
recreational water. Applied and Environmental Microbiology 59 (4) 
1128-1230.
    \86\ Center for Watershed Protection. 1999. Microbes and urban 
watersheds: concentrations, sources, and pathways. Watershed 
Protection Techniques. 3(1):554-565.
    \87\ Makino. S., H. Kobori, H. Asakura, M. Watarai, T. 
Shirahata, T. Ikeda, K. Takeshi and T. Tsukamoto. 2000. Detection 
and characterization of Shiga toxin-producing Escherichia coli from 
seagulls. Epidemiol. Infect. 125: 55-61.
    \88\ USEPA. 2009. Review of Published Studies to Characterize 
Relative Risks from Different Sources of Fecal Contamination in 
Recreational Water. U.S. Environmental Protection Agency, Office of 
Water, Health and Ecological Criteria Division. Washington, DC. EPA 
822-R-09-001.
    \89\ Id.
    \90\ USEPA. 2009. Review of Zoonotic Pathogens in Ambient 
Waters. U.S. Environmental Protection Agency, Office of Water, 
Health and Ecological Criteria Division. Washington, DC. EPA-822-R-
09-002.
    \91\ USEPA. 2012. Recreational Water Quality Criteria. U.S. 
Environmental Protection Agency, Office of Water, Washington, DC. 
Office of Water 820-F-12-058.
---------------------------------------------------------------------------

    Contrary to the commenter's assertion, EPA cited more than one 
study in the RWQC that links potential human health risks with non-
human sources of fecal contamination.\92\ Furthermore, in the 
development of the RWQC, EPA did not, as the commenter claimed, equate 
bacteria from domestic animal sources to those of naturally occurring 
wildlife. On the contrary, EPA's research for the development of the 
RWQC clearly recognized that there is a risk differential between human 
and non-human animal sources, as well as among non-human animal 
sources.\93\ Nevertheless, because zoonotic pathogens are present in 
animal (including wildlife) fecal matter, creating a potential risk 
from recreational exposure to zoonotic pathogens in animal-impacted 
waters, EPA found no scientific basis on which to exclude wildlife 
altogether from the scope of the RWQC, nor has the commenter provided 
any scientific basis for excluding wildlife sources altogether from the 
scope of the EPA's rule for waters in Indian lands in Maine.
---------------------------------------------------------------------------

    \92\ Id., pages 34-38.
    \93\ Id., pages 36-38.
---------------------------------------------------------------------------

    Maine DEP commented that because bacteria from natural sources are 
likely to be ``temporal,'' removing a use (recreation in and on the 
water) simply due to a high level of E. coli where the bacteria source 
is of natural origins ``is, at best, unwise.'' This circumstance is not 
a justification for excluding wildlife sources altogether from the 
scope of recreational bacteria criteria. EPA recognizes that health 
risks associated with exposure to waters impacted by animal sources can 
vary substantially, depending on the animal source. In some cases, 
these risks can be similar to exposure to human fecal contamination, 
and in other cases, the risk is lower.94 95 96 97 In 
situations with

[[Page 92485]]

non-human sources of fecal contamination, the state may choose to 
conduct sanitary surveys, epidemiological studies and/or a Quantitative 
Microbial Risk Assessment (QMRA). If sanitary surveys, water quality 
information, or health studies show the sources of fecal contamination 
to be non-human, and the indicator densities reflect a different risk 
profile, then the state has the option to develop and adopt site-
specific alternative recreational bacteria criteria to reflect the 
local environmental conditions and human exposure patterns.\98\ For 
waterbodies where non-human fecal sources predominate, QMRA can be used 
to determine a different enterococci or E. coli criteria value that is 
equally protective as the criteria EPA is promulgating today.\99\
---------------------------------------------------------------------------

    \94\ Schoen, M.E. and N.J. Ashbolt. 2010. Assessing pathogen 
risk to swimmers at non-sewage impacted recreational beaches. 
Environmental Science and Technology 44(7): 2286-2291.
    \95\ Soller, J.A., M.E. Schoen, T. Bartrand, J.E. Ravenscroft, 
N.J. Ashbolt. 2010. Estimated human health risks from exposure too 
recreational waters impacted by human and non-human sources of 
faecal contamination. Water Research 44: 4674-4691.
    \96\ Soller, J.A., T. Bartrand, J. Ravenscroft, M. Molina, G. 
Whelan, M. Schoen, N. Ashbolt. 2015. Estimated health risks from 
recreational exposures to stormwater runoff containing animal faecal 
material. Environmental Modelling and Software 72: 21-32.
    \97\ USEPA. 2010. Quantitative Microbial Risk Assessment to 
Estimate Illness in Freshwater Impacted by Agricultural Animals 
Sources of Fecal Contamination. U.S. Environmental Protection 
Agency, Office of Water, Washington, DC. EPA 822-R-10-005.
    \98\ USEPA. 2012. Recreational Water Quality Criteria. U.S. 
Environmental Protection Agency, Office of Water, Washington, DC. 
Office of Water 820-F-12-058. Section 6.2.
    \99\ Id., Section 6.2.2.
---------------------------------------------------------------------------

    Maine DEP also objected to EPA's proposal to apply the bacteria 
criteria year round, and requested that EPA exclude the period of 
October 1-May 14, similar to Maine's disapproved criteria. The state 
asserted that EPA had not demonstrated that recreational activities 
occur in this time frame. Other commenters supported the year round 
criteria. EPA disagrees with the state's characterization of the 
record. First, the activities cited by EPA in the proposal were merely 
examples of readily available information that recreation does occur 
during the period October 1 to May 14. The record also included 
information from one tribal member confirming that activities in and on 
the Penobscot River occur whenever the waters are ice free. In its 
comment supporting the proposed criteria, the Penobscot Nation 
specifically noted that the tribe engages in year round activities in 
and on the Penobscot River, including for paddling, fishing, and 
ceremonial uses. EPA had invited comment on whether a seasonal term 
shorter than October 1-May 14, during which the recreational bacteria 
criteria would not apply, would still adequately protect recreational 
uses. EPA received no comments that provided specific information that 
could support the establishment of a seasonal timeframe in which the 
absence of bacteria criteria would be protective of uses. Therefore, 
EPA has retained the year round applicability in the final rule.

IV. Economic Analysis

    EPA is not required under CWA section 303(c) or its implementing 
regulations at 40 CFR part 131 to conduct an economic analysis 
regarding implementation of these EPA-promulgated WQS. For the purpose 
of transparency, EPA conducted a cost analysis for the WQS in this 
final rule. Potential economic effects of this rule are presented here.
    These WQS may serve as a basis for development of NPDES permit 
limits. Maine has NPDES permitting authority and retains considerable 
discretion in implementing standards. EPA evaluated the potential costs 
to NPDES dischargers associated with state implementation of EPA's 
final criteria. This analysis is documented in ``Final Economic 
Analysis for Promulgation of Certain Federal Water Quality Criteria 
Applicable to Maine,'' which can be found in the docket for this 
rulemaking.
    Any NPDES-permitted facility that discharges pollutants for which 
the revised WQS are more stringent than the previously applicable WQS 
could potentially incur increased compliance costs. The types of 
affected facilities could include industrial facilities and POTWs 
discharging wastewater to surface waters (i.e., point sources). EPA did 
not attribute compliance with water quality-based effluent limitations 
(WQBELs) reflective of Maine's existing (hereafter ``baseline'') WQS to 
the final rule. Once in compliance with WQBELs reflective of baseline 
criteria, EPA expects that dischargers will continue to use the same 
types of controls to come into compliance with any revised WQBELs 
reflective of the more stringent WQS.
    The following final criteria are not expected to result in 
incremental costs to permitted dischargers: pH, temperature, ammonia, 
and all but one HHC (for waters in Indian lands); phenol (for state 
waters outside Indian lands); and dissolved oxygen (for all state 
waters). As described below, the cost analysis identifies potential 
costs of compliance with one HHC (bis(2-ethylhexyl)phthalate), 
bacteria, and the final mixing zone policy for waters in Indian lands.
    EPA did not fully evaluate the potential for costs to nonpoint 
sources. Very little data were available to assess the potential for 
the rule to result in WQS exceedances attributable to nonpoint sources. 
It is difficult to model and evaluate the potential cost impacts of 
this final rule to nonpoint sources because they are intermittent, 
variable, and occur under hydrologic or climatic conditions associated 
with precipitation events. Finally, legacy contamination (e.g., in 
sediment) may be a source of ongoing loading. Atmospheric deposition 
may also contribute loadings of the pollutants of concern (e.g., 
mercury). EPA did not estimate sediment remediation costs, or air 
pollution control costs, for this analysis.

A. Identifying Affected Entities

    EPA identified 33 facilities (major and non-major) that discharge 
to waters in Indian lands or their tributaries, two facilities that 
discharge phenol to other state waters, and 26 facilities that 
discharge to Class A waters throughout the state. EPA identified 16 
point source facilities that could incur additional costs as a result 
of this final rule. Of these potentially affected facilities, eight are 
major dischargers and eight are minor dischargers. Two are industrial 
dischargers and the remaining 14 are publicly owned treatment works 
(POTWs). EPA did not include general permit facilities in its analysis 
because data for such facilities are limited. EPA evaluated all of the 
potentially affected facilities.
    EPA does not agree with the comment that its economic analysis 
(``EA'') was deficient because uncertainty--including with respect to 
the geographic scope of the rule's applicability--constrained the 
Agency's ability to assess the economic impacts of the rule. Although 
the commenter is correct that the geographic extent of the waters 
covered by this promulgation could change due to litigation or other 
legal developments regarding Indian land status, EPA used an inclusive 
approach in its analysis that accounted for all facilities that could 
reasonably fall within the two general categories of waters to which 
the HHC may apply. If the geographic scope of waters to which the HHC 
apply is smaller, then fewer facilities will be affected by the rule 
and costs will be lower.

B. Method for Estimating Costs

    For the 16 facilities that may incur costs, EPA evaluated existing 
baseline permit conditions and the potential to exceed new effluent 
limits based on the

[[Page 92486]]

final rule. In instances of exceedances of projected effluent 
limitations under the final criteria, EPA determined the likely 
compliance scenarios and costs. Only compliance actions and costs that 
would be needed above the baseline level of controls are attributable 
to the rule.
    EPA assumed that dischargers will pursue the least cost means of 
compliance with WQBELs. Incremental compliance actions attributable to 
the rule may include pollution prevention, end-of-pipe treatment, and 
alternative compliance mechanisms (e.g., variances). EPA annualized 
capital costs, including study (e.g., variance) and program (e.g., 
pollution prevention) costs, over 20 years using a 3% discount rate to 
obtain total annual costs per facility.

C. Results

1. Costs From Final Human Health Criteria Applicable to Waters in 
Indian Lands
    Based on this approach, EPA identified one facility that has 
reasonable potential to exceed permit effluent limits based on one 
final criterion (bis(2-ethylhexyl)phthalate). EPA calculated a 
projected effluent limitation based on the same procedures utilized by 
Maine in its NPDES permitting practices. To estimate potential costs to 
this facility from meeting the projected effluent limits, EPA 
considered source controls, end-of-pipe treatments, and alternative 
compliance mechanisms (e.g. variances). For this provision, EPA 
estimated total annual compliance costs of $28,000 (for source 
controls) to $43,000 (for end-of-pipe treatments).
2. Costs From Final Recreational Bacteria Criteria for Waters in Indian 
Lands
    EPA does not expect the final recreational bacteria criteria to 
result in any new treatment processes being added to facilities, but 
does expect that 14 facilities with existing limitations for bacteria 
will need to operate their disinfection systems year-round, extending 
treatments for an additional 226 days per year. EPA estimated the costs 
of chemicals and monitoring during this extended period based on the 
facilities' effluent flow rate, type of treatment, and monitoring 
costs. For this provision, EPA estimated total annual compliance costs 
of $185,000 to $705,000.
3. Costs From Final Mixing Zone Policy
    EPA identified one facility with an existing permit that 
establishes a thermal mixing zone that may affect waters in Indian 
lands. It is unknown whether reductions in thermal loads will be 
necessary to reduce the mixing zone to a size and configuration that 
would meet the new mixing zone policy at this facility; possible 
outcomes include the need for facility-specific studies, revisions to 
permit conditions that could require recalculating thermal discharge 
limits, or changes in facility processes or operations to reduce the 
thermal load. To estimate the costs of this provision, EPA used as 
lower-bound the cost to conduct a study to characterize the 
discharger's existing thermal plume and support evaluation of whether 
the current mixing zone complies with the new mixing zone policy 
($1,000, annual cost for 20 years) and as upper-bound the potential 
cost impacts for installing new cooling towers at the facility 
($273,000, annualized over 30 years at a 3 percent discount rate).
4. Total Costs
    Table 3 summarizes the estimated point source compliance costs from 
the final WQS. EPA estimates that the total annual compliance costs for 
all provisions may be in the range of $214,000 to $1.0 million.

       Table 3--Summary of Estimated Point Source Compliance Costs
------------------------------------------------------------------------
                                                        Annualized costs
                      Final WQS                           (thousands;
                                                           2014$) \1\
------------------------------------------------------------------------
Human health criteria for waters in Indian lands.....            $28-$43
Recreational bacteria criteria for waters in Indian              185-705
 lands...............................................
Mixing zone policy...................................              1-273
                                                      ------------------
    Total............................................          214-1,021
------------------------------------------------------------------------
\1\ One-time costs are annualized over 20 years (30 years in the case of
  cooling towers under the mixing zone policy) using a 3% discount rate.

V. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket.
    EPA prepared an analysis of the potential costs and benefits 
associated with this action. This analysis is summarized in section IV 
of the preamble and is available in the docket.

B. Paperwork Reduction Act

    This action does not impose any direct new information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. Actions to implement these WQS could entail additional 
paperwork burden. Burden is defined at 5 CFR 1320.3(b). This action 
does not include any information collection, reporting, or record-
keeping requirements.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. Small 
entities, such as small businesses or small governmental jurisdictions, 
are not directly regulated by this rule. This rule will thus not impose 
any requirements on small entities.
    EPA-promulgated standards are implemented through various water 
quality control programs including the NPDES program, which limits 
discharges to navigable waters except in compliance with an NPDES 
permit. The CWA requires that all NPDES permits include any limits on 
discharges that are necessary to meet applicable WQS. Thus, under the 
CWA, EPA's promulgation of WQS establishes standards that the state 
implements through the NPDES permit process. The state has discretion 
in developing discharge limits, as needed to meet the standards. As a 
result of this action, the

[[Page 92487]]

State of Maine will need to issue permits that include limitations on 
discharges necessary to comply with the standards established in the 
final rule. In doing so, the state will have a number of approaches 
available to it associated with permit writing. While Maine's 
implementation of the rule may ultimately result in new or revised 
permit conditions for some dischargers, including small entities, EPA's 
action, by itself, does not directly impose any requirements on small 
entities. Any impact from EPA's action on small entities would 
therefore only be indirect because the requirements of this rule are 
not self-implementing.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. As these water quality criteria are not self-implementing, 
EPA's action imposes no enforceable duty on any state, local or tribal 
governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that could 
significantly or uniquely affect small governments.

E. Executive Order 13132

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. This rule 
does not alter Maine's considerable discretion in implementing these 
WQS, nor will it preclude Maine from adopting WQS in the future that 
EPA concludes meet the requirements of the CWA, which will eliminate 
the need for federal standards. Thus, Executive Order 13132 does not 
apply to this action.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This action has tribal implications, however, it would neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. Therefore, consultation is 
not required under the Executive Order. In the state of Maine, there 
are four federally recognized Indian tribes represented by five tribal 
governments. As a result of the unique jurisdictional provisions of the 
Maine Indian Claims Settlement Act, as described above, the state has 
jurisdiction for setting water quality standards for all waters in 
Indian lands in Maine. This rule will have no effect on that 
jurisdictional arrangement. This rule would affect federally recognized 
Indian tribes in Maine because the water quality standards will apply 
to all waters in Indian lands. Some will also apply to waters outside 
of Indian lands where the sustenance fishing designated use established 
by 30 M.R.S. 6207(4) and (9) applies. Finally, many of the final 
criteria for such waters are protective of the sustenance fishing 
designated use, which is based in the Indian settlement acts in Maine.
    The EPA consulted with tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this rule to permit them to have meaningful and timely 
input into its development. Summaries of those consultations are 
provided in the following documents: ``Maine WQS Tribal Leaders 
Consultation 4-27-16;'' ``Maine WQS Technical Consultation 4-11-16;'' 
and ``Summary of Tribal Consultations Regarding Water Quality Standards 
Applicable to Waters in Indian Lands within the State of Maine,'' which 
are available in the docket for this rulemaking.

G. Executive Order 13045 (Protection of Children From Environmental 
Health and Safety Risks)

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk that may disproportionately affect children.

H. Executive Order 13211 (Actions That Significantly Affect Energy 
Supply, Distribution, or Use)

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy.

I. National Technology Transfer and Advancement Act of 1995

    This action does not involve technical standards.

J. Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations)

    The human health or environmental risk addressed by this action 
will not have potential disproportionately high and adverse human 
health or environmental effects on minority, low-income or indigenous 
populations.
    Conversely, this action will increase protection for indigenous 
populations in Maine from disproportionately high and adverse human 
health effects. EPA developed the criteria included in this rule 
specifically to protect Maine's designated uses, using the most current 
science, including local and regional information on fish consumption. 
Applying these criteria to waters in the state of Maine will afford a 
greater level of protection to both human health and the environment.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

    Environmental protection, Incorporation by reference, Indians--
lands, Intergovernmental relations, Reporting and recordkeeping 
requirements, Water pollution control.

    Dated: December 8, 2016.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 
131 as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

Subpart D--Federally Promulgated Water Quality Standards

0
2. Add Sec.  131.43 to read as follows:


Sec.  131.43   Maine.

    (a) Human health criteria for toxics for waters in Indian lands and 
for Waters outside of Indian lands where the sustenance fishing 
designated use established by 30 M.R.S. 6207(4) and (9) applies. The 
criteria for toxic pollutants for the protection of human health are 
set forth in the following table 1:

[[Page 92488]]



                                         Table 1--Human Health Criteria
----------------------------------------------------------------------------------------------------------------
                                                                 Water and
                Chemical name                     CAS No.        organisms         Organisms only ([mu]g/L)
                                                                 ([mu]g/L)
----------------------------------------------------------------------------------------------------------------
1. 1,1,2,2-Tetrachloroethane................         79-34-5            0.09  0.2
2. 1,1,2-Trichloroethane....................         79-00-5            0.31  0.66
3. 1,1-Dichloroethylene.....................         75-35-4             300  1000
4. 1,2,4,5-Tetrachlorobenzene...............         95-94-3           0.002  0.002
5. 1,2,4-Trichlorobenzene...................        120-82-1          0.0056  0.0056
6. 1,2-Dichlorobenzene......................         95-50-1             200  300
7. 1,2-Dichloropropane......................         78-87-5  ..............  2.3
8. 1,2-Diphenylhydrazine....................        122-66-7            0.01  0.02
9. 1,2-Trans-Dichloroethylene...............        156-60-5              90  300
10. 1,3-Dichlorobenzene.....................        541-73-1               1  1
11. 1,3-Dichloropropene.....................        542-75-6            0.21  0.87
12. 1,4-Dichlorobenzene.....................        106-46-7  ..............  70
13. 2,4,5-Trichlorophenol...................         95-95-4              40  40
14. 2,4,6-Trichlorophenol...................         88-06-2            0.20  0.21
15. 2,4-Dichlorophenol......................        120-83-2               4  4
16. 2,4-Dimethylphenol......................        105-67-9              80  200
17. 2,4-Dinitrophenol.......................         51-28-5               9  30
18. 2,4-Dinitrotoluene......................        121-14-2           0.036  0.13
19. 2-Chloronaphthalene.....................         91-58-7              90  90
20. 2-Chlorophenol..........................         95-57-8              20  60
21. 2-Methyl-4,6-Dinitrophenol..............        534-52-1               1  2
22. 3,3'-Dichlorobenzidine..................         91-94-1          0.0096  0.011
23. 4,4'-DDD................................         72-54-8         9.3E-06  9.3E-06
24. 4,4'-DDE................................         72-55-9         1.3E-06  1.3E-06
25. 4,4'-DDT................................         50-29-3         2.2E-06  2.2E-06
26. Acenaphthene............................         83-32-9               6  7
27. Acrolein................................        107-02-8               3  ..................................
28. Aldrin..................................        309-00-2         5.8E-08  5.8E-08
29. alpha-BHC...............................        319-84-6         2.9E-05  2.9E-05
30. alpha-Endosulfan........................        959-98-8               2  2
31. Anthracene..............................        120-12-7              30  30
32. Antimony................................       7440-36-0               5  40
33. Benzene.................................         71-43-2            0.40  1.2
34. Benzo (a) Anthracene....................         56-55-3         9.8E-05  9.8E-05
35. Benzo (a) Pyrene........................         50-32-8         9.8E-06  9.8E-06
36. Benzo (b) Fluoranthene..................        205-99-2         9.8E-05  9.8E-05
37. Benzo (k) Fluoranthene..................        207-08-9         0.00098  0.00098
38. beta-BHC................................        319-85-7          0.0010  0.0011
39. beta-Endosulfan.........................      33213-65-9               3  3
40. Bis(2-Chloro-1-Methylethyl) Ether.......        108-60-1             100  300
41. Bis(2-Chloroethyl) Ether................        111-44-4           0.026  0.16
42. Bis(2-Ethylhexyl) Phthalate.............        117-81-7           0.028  0.028
43. Bromoform...............................         75-25-2             4.0  8.7
44. Butylbenzyl Phthalate...................         85-68-7          0.0077  0.0077
45. Carbon Tetrachloride....................         56-23-5             0.2  0.3
46. Chlordane...............................         57-74-9         2.4E-05  2.4E-05
47. Chlorobenzene...........................        108-90-7              40  60
48. Chlorodibromomethane....................        124-48-1  ..............  1.5
49. Chrysene................................        218-01-9  ..............  0.0098
50. Cyanide.................................         57-12-5               4  30
51. Dibenzo (a,h) Anthracene................         53-70-3         9.8E-06  9.8E-06
52. Dichlorobromomethane....................         75-27-4  ..............  2.0
53. Dieldrin................................         60-57-1         9.3E-08  9.3E-08
54. Diethyl Phthalate.......................         84-66-2              50  50
55. Dimethyl Phthalate......................        131-11-3             100  100
56. Di-n-Butyl Phthalate....................         84-74-2               2  2
57. Dinitrophenols..........................      25550-58-7              10  70
58. Endosulfan Sulfate......................       1031-07-8               3  3
59. Endrin..................................         72-20-8           0.002  0.002
60. Endrin Aldehyde.........................       7421-93-4            0.09  0.09
61. Ethylbenzene............................        100-41-4             8.9  9.5
62. Fluoranthene............................        206-44-0               1  1
63. Fluorene................................         86-73-7               5  5
64. gamma-BHC (Lindane).....................         58-89-9            0.33  ..................................
65. Heptachlor..............................         76-44-8         4.4E-07  4.4E-07
66. Heptachlor Epoxide......................       1024-57-3         2.4E-06  2.4E-06
67. Hexachlorobenzene.......................        118-74-1         5.9E-06  5.9E-06
68. Hexachlorobutadiene.....................         87-68-3          0.0007  0.0007
69. Hexachlorocyclohexane-Technical.........        608-73-1         0.00073  0.00076
70. Hexachlorocyclopentadiene...............         77-47-4             0.3  0.3

[[Page 92489]]

 
71. Hexachloroethane........................         67-72-1            0.01  0.01
72. Indeno (1,2,3-cd) Pyrene................        193-39-5         9.8E-05  9.8E-05
73. Isophorone..............................         78-59-1              28  140
74. Methoxychlor............................         72-43-5           0.001  ..................................
75. Methylene Chloride......................         75-09-2  ..............  90
76. Methylmercury...........................      22967-92-6  ..............  0.02 \a\ (mg/kg)
77. Nickel..................................       7440-02-0              20  20
78. Nitrobenzene............................         98-95-3              10  40
79. Nitrosamines............................  ..............         0.00075  0.032
80. N-Nitrosodibutylamine...................        924-16-3         0.00438  0.0152
81. N-Nitrosodiethylamine...................         55-18-5         0.00075  0.032
82. N-Nitrosodimethylamine..................         62-75-9         0.00065  0.21
83. N-Nitrosodi-n-propylamine...............        621-64-7          0.0042  0.035
84. N-Nitrosodiphenylamine..................         86-30-6            0.40  0.42
85. N-Nitrosopyrrolidine....................        930-55-2  ..............  2.4
86. Pentachlorobenzene......................        608-93-5           0.008  0.008
87. Pentachlorophenol.......................         87-86-5           0.003  0.003
88. Phenol..................................        108-95-2           3,000  20,000
89. Polychlorinated Biphenyls (PCBs)........       1336-36-3       \b\ 4E-06  4E-06 \b\
90. Pyrene..................................        129-00-0               2  2
91. Selenium................................       7782-49-2              20  60
92. Toluene.................................        108-88-3              24  39
93. Toxaphene...............................       8001-35-2         5.3E-05  5.3E-05
94. Trichloroethylene.......................         79-01-6             0.3  0.5
95. Vinyl Chloride..........................         75-01-4           0.019  0.12
96. Zinc....................................       7440-66-6             300  400
----------------------------------------------------------------------------------------------------------------
\a\ This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and
  applies equally to fresh and marine waters.
\b\ This criterion applies to total PCBs (i.e., the sum of all congener or isomer or homolog or Aroclor
  analyses).

    (b) Bacteria criteria for waters in Indian lands. (1) The bacteria 
content of Class AA and Class A waters shall be as naturally occurs, 
and the minimum number of Escherichia coli bacteria shall not exceed a 
geometric mean of 100 colony-forming units per 100 milliliters (cfu/100 
ml) in any 30-day interval; nor shall 320 cfu/100 ml be exceeded more 
than 10% of the time in any 30-day interval.
    (2) In Class B, Class C, and Class GPA waters, the number of 
Escherichia coli bacteria shall not exceed a geometric mean of 100 
colony forming units per 100 milliliters (cfu/100 ml) in any 30- day 
interval; nor shall 320 cfu/100 ml be exceeded more than 10% of the 
time in any 30-day interval.
    (3) The bacteria content of Class SA waters shall be as naturally 
occurs, and the number of Enterococcus spp. bacteria shall not exceed a 
geometric mean of 30 cfu/100 ml in any 30-day interval, nor shall 110 
cfu/100 ml be exceeded more than 10% of the time in any 30-day 
interval.
    (4) In Class SA shellfish harvesting areas, the numbers of total 
coliform bacteria or other specified indicator organisms in samples 
representative of the waters in shellfish harvesting areas may not 
exceed the criteria recommended under the National Shellfish Sanitation 
Program, United States Food and Drug Administration, as set forth in 
the Guide for the Control of Molluscan Shellfish, 2015 Revision. The 
Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
obtain a copy from the U.S. Food and Drug Administration Center for 
Food Safety and Applied Nutrition, Shellfish and Aquaculture Policy 
Branch, 5100 Paint Branch Parkway (HFS-325), College Park, MD 20740 or 
http://www.fda.gov/Food/GuidanceRegulation/FederalStateFoodPrograms/ucm2006754.htm. You may inspect a copy at the U.S. Environmental 
Protection Agency Docket Center Reading Room, William Jefferson Clinton 
West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 
20004, (202) 566-1744, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (5) In Class SB and SC waters, the number of Enterococcus spp. 
bacteria shall not exceed a geometric mean of 30 cfu/100 ml in any 30-
day interval, nor shall 110 cfu/100 ml be exceeded more than 10% of the 
time in any 30-day interval.
    (c) Ammonia criteria for fresh waters in Indian lands. (1) The one-
hour average concentration of total ammonia nitrogen (in mg TAN/L) 
shall not exceed, more than once every three years, the criterion 
maximum concentration (i.e., the ``CMC,'' or ``acute criterion'') set 
forth in Tables 2 and 3 of this section.
    (2) The thirty-day average concentration of total ammonia nitrogen 
(in mg TAN/L) shall not exceed, more than once every three years, the 
criterion continuous concentration (i.e., the ``CCC,'' or ``chronic 
criterion'') set forth in Table 4.
    (3) In addition, the highest four-day average within the same 30-
day period as in (2) shall not exceed 2.5 times the CCC, more than once 
every three years.

[[Page 92490]]

[GRAPHIC] [TIFF OMITTED] TR19DE16.007


[[Page 92491]]


[GRAPHIC] [TIFF OMITTED] TR19DE16.008


[[Page 92492]]


[GRAPHIC] [TIFF OMITTED] TR19DE16.009


[[Page 92493]]


    (d) pH Criteria for fresh waters in Indian lands. The pH of fresh 
waters shall fall within the range of 6.5 to 8.5.
    (e) Temperature criteria for tidal waters in Indian lands. (1) The 
maximum acceptable cumulative increase in the weekly average 
temperature resulting from all artificial sources is 1 [deg]C (1.8 
[deg]F) during all seasons of the year, provided that the summer 
maximum is not exceeded.
    (i) Weekly average temperature increase shall be compared to 
baseline thermal conditions and shall be calculated using the daily 
maxima averaged over a 7-day period.
    (ii) Baseline thermal conditions shall be measured at or modeled 
from a site where there is no artificial thermal addition from any 
source, and which is in reasonable proximity to the thermal discharge 
(within 5 miles), and which has similar hydrography to that of the 
receiving waters at the discharge.
    (2) Natural temperature cycles characteristic of the waterbody 
segment shall not be altered in amplitude or frequency.
    (3) During the summer months (for the period from May 15 through 
September 30), water temperatures shall not exceed a weekly average 
summer maximum threshold of 18 [deg]C (64.4 [deg]F) (calculated using 
the daily maxima averaged over a 7-day period).
    (f) Natural conditions provisions for waters in Indian lands. (1) 
The provision in Title 38 of Maine Revised Statutes 464(4.C) which 
reads: ``Where natural conditions, including, but not limited to, 
marshes, bogs and abnormal concentrations of wildlife cause the 
dissolved oxygen or other water quality criteria to fall below the 
minimum standards specified in section 465, 465-A and 465-B, those 
waters shall not be considered to be failing to attain their 
classification because of those natural conditions,'' does not apply to 
water quality criteria intended to protect human health.
    (2) The provision in Title 38 of Maine Revised Statutes 420(2.A) 
which reads ``Except as naturally occurs or as provided in paragraphs B 
and C, the board shall regulate toxic substances in the surface waters 
of the State at the levels set forth in federal water quality criteria 
as established by the United States Environmental Protection Agency 
pursuant to the Federal Water Pollution Control Act, Public Law 92-500, 
Section 304(a), as amended,'' does not apply to water quality criteria 
intended to protect human health.
    (g) Mixing zone policy for waters in Indian lands. (1) Establishing 
a mixing zone. (i) The Department of Environmental Protection 
(``department'') may establish a mixing zone for any discharge at the 
time of application for a waste discharge license if all of the 
requirements set forth in paragraphs (g)(2) and (3) of this section are 
satisfied. The department shall attach a description of the mixing zone 
as a condition of a license issued for that discharge. After 
opportunity for a hearing in accordance with 38 MRS section 345-A, the 
department may establish by order a mixing zone with respect to any 
discharge for which a license has been issued pursuant to section 414 
or for which an exemption has been granted by virtue of 38 MRS section 
413, subsection 2.
    (ii) The purpose of a mixing zone is to allow a reasonable 
opportunity for dilution, diffusion, or mixture of pollutants with the 
receiving waters such that an applicable criterion may be exceeded 
within a defined area of the waterbody while still protecting the 
designated use of the waterbody as a whole. In determining the extent 
of any mixing zone to be established under this section, the department 
will require from the applicant information concerning the nature and 
rate of the discharge; the nature and rate of existing discharges to 
the waterway; the size of the waterway and the rate of flow therein; 
any relevant seasonal, climatic, tidal, and natural variations in such 
size, flow, nature, and rate; the uses of the waterways that could be 
affected by the discharge, and such other and further evidence as in 
the department's judgment will enable it to establish a reasonable 
mixing zone for such discharge. An order establishing a mixing zone may 
provide that the extent thereof varies in order to take into account 
seasonal, climatic, tidal, and natural variations in the size and flow 
of, and the nature and rate of, discharges to the waterway.
    (2) Mixing zone information requirements. At a minimum, any request 
for a mixing zone must:
    (i) Describe the amount of dilution occurring at the boundaries of 
the proposed mixing zone and the size, shape, and location of the area 
of mixing, including the manner in which diffusion and dispersion 
occur;
    (ii) Define the location at which discharge-induced mixing ceases;
    (iii) Document the substrate character and geomorphology within the 
mixing zone;
    (iv) Document background water quality concentrations;
    (v) Address the following factors;
    (A) Whether adjacent mixing zones overlap;
    (B) Whether organisms would be attracted to the area of mixing as a 
result of the effluent character; and
    (C) Whether the habitat supports endemic or naturally occurring 
species.
    (vi) Provide all information necessary to demonstrate whether the 
requirements in paragraph (g)(3) of this section are satisfied.
    (3) Mixing zone requirements. (i) Mixing zones shall be established 
consistent with the methodologies in Sections 4.3 and 4.4 of the 
``Technical Support Document for Water Quality-based Toxics Control'' 
EPA/505/2-90-001, dated March 1991.
    (ii) The mixing zone demonstration shall be based on the assumption 
that a pollutant does not degrade within the proposed mixing zone, 
unless:
    (A) Scientifically valid field studies or other relevant 
information demonstrate that degradation of the pollutant is expected 
to occur under the full range of environmental conditions expected to 
be encountered; and
    (B) Scientifically valid field studies or other relevant 
information address other factors that affect the level of pollutants 
in the water column including, but not limited to, resuspension of 
sediments, chemical speciation, and biological and chemical 
transformation.
    (iii) Water quality within an authorized mixing zone is allowed to 
exceed chronic water quality criteria for those parameters approved by 
the department. Acute water quality criteria may be exceeded for such 
parameters within the zone of initial dilution inside the mixing zone. 
Acute criteria shall be met as close to the point of discharge as 
practicably attainable. Water quality criteria shall not be violated 
outside of the boundary of a mixing zone as a result of the discharge 
for which the mixing zone was authorized.
    (iv) Mixing zones shall be as small as practicable. The 
concentrations of pollutants present shall be minimized and shall 
reflect the best practicable engineering design of the outfall to 
maximize initial mixing. Mixing zones shall not be authorized for 
bioaccumulative pollutants (i.e., chemicals for which the 
bioconcentration factors (BCF) or bioaccumulation factors (BAF) are 
greater than 1,000) or bacteria.
    (v) In addition to the requirements above, the department may 
approve a mixing zone only if the mixing zone:
    (A) Is sized and located to ensure that there will be a continuous 
zone of passage that protects migrating, free-swimming, and drifting 
organisms;
    (B) Will not result in thermal shock or loss of cold water habitat 
or otherwise

[[Page 92494]]

interfere with biological communities or populations of indigenous 
species;
    (C) Is not likely to jeopardize the continued existence of any 
endangered or threatened species listed under section 4 of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) or 
result in the destruction or adverse modification of such species' 
critical habitat;
    (D) Will not extend to drinking water intakes and sources;
    (E) Will not otherwise interfere with the designated or existing 
uses of the receiving water or downstream waters;
    (F) Will not promote undesirable aquatic life or result in a 
dominance of nuisance species;
    (G) Will not endanger critical areas such as breeding and spawning 
grounds, habitat for state-listed threatened or endangered species, 
areas with sensitive biota, shellfish beds, fisheries, and recreational 
areas;
    (H) Will not contain pollutant concentrations that are lethal to 
mobile, migrating, and drifting organisms passing through the mixing 
zone;
    (I) Will not contain pollutant concentrations that may cause 
significant human health risks considering likely pathways of exposure;
    (J) Will not result in an overlap with another mixing zone;
    (K) Will not attract aquatic life;
    (L) Will not result in a shore-hugging plume; and
    (M) Is free from:
    (1) Substances that settle to form objectionable deposits;
    (2) Floating debris, oil, scum, and other matter in concentrations 
that form nuisances; and
    (3) Objectionable color, odor, taste, or turbidity.
    (h) Dissolved oxygen criteria for class A waters throughout the 
State of Maine, including in Indian lands. The dissolved oxygen content 
of Class A waters shall not be less than 7 ppm (7 mg/L) or 75% of 
saturation, whichever is higher, year-round. For the period from 
October 1 through May 14, in fish spawning areas, the 7-day mean 
dissolved oxygen concentration shall not be less than 9.5 ppm (9.5 mg/
L), and the 1-day minimum dissolved oxygen concentration shall not be 
less than 8 ppm (8.0 mg/L).
    (i) Waiver or modification of protection and improvement laws for 
waters throughout the State of Maine, including in Indian lands. For 
all waters in Maine, the provisions in Title 38 of Maine Revised 
Statutes 363-D do not apply to state or federal water quality standards 
applicable to waters in Maine, including designated uses, criteria to 
protect existing and designated uses, and antidegradation policies.
    (j) Phenol criterion for the protection of human health for Maine 
waters outside of Indian lands. The phenol criterion to protect human 
health for the consumption of water and organisms is 4000 micrograms 
per liter.

[FR Doc. 2016-30331 Filed 12-16-16; 8:45 am]
 BILLING CODE 6560-50-P