[Federal Register Volume 78, Number 39 (Wednesday, February 27, 2013)]
[Notices]
[Pages 13339-13341]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04531]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9785-2; EPA-R01-OEP-FRL: 13-007]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice. Proposal To Approve Maine's National Pollutant 
Discharge Elimination System (NPDES) Permitting Program.

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SUMMARY: In 1999 the State of Maine applied to implement its NPDES 
program under the Clean Water Act in the state, including the 
territories of the Aroostook Band of Micmacs and the Houlton Band of 
Maliseet Indians. Today, EPA is proposing to act on the state's 
application as it applies in those Indian territories and is inviting 
comment.

DATES: Interested persons may submit comments on the approval of 
Maine's NPDES Permitting Program in these territories as part of the 
administrative record to EPA--Region 1, at the address given below, no 
later than midnight through April 29, 2013.

ADDRESSES: Submit comments by one of the following methods:
     Email: velez.glenda@epa.gov.
     Mail: Glenda V[eacute]lez, USEPA-Region 1, 5 Post Office 
Square--OEP06-01, Boston, MA 02109-3912.
     No facsimiles (faxes) will be accepted.

FOR FURTHER INFORMATION: Additional information concerning the proposed 
approval of Maine's program in these territories may be obtained 
between the hours of 9 a.m. and 5 p.m. Monday through Friday excluding 
holidays from: Glenda V[eacute]lez, USEPA-Region 1, 5 Post Office 
Square-OEP06-01, Boston, MA 02109-3912, Telephone: 617-918-1677, Email: 
velez.glenda@epa.gov.

SUPPLEMENTARY INFORMATION:

2001 Approval of Maine's Base NPDES Permitting Program

    On December 17, 1999, EPA determined that the State of Maine had 
submitted a complete application to administer the National Pollutant 
Discharge Elimination System (NPDES) permitting program in the state 
under the Clean Water Act (CWA). 33 U.S.C. 1251, et seq., see 64 FR 
73552 (Dec. 30, 1999). Maine's application included an assertion of 
authority to implement the program in the territories of the federally-
recognized Indian tribes within the state, based on the jurisdictional 
provisions of the Maine Indian Claims Settlement Act (MICSA), which 
ratified the Maine Implementing Act (MIA). 25 U.S.C. 1721, et seq. and 
30 M.R.S.A. Sec.  6201, et seq., respectively.
    On January 12, 2001, EPA approved the State of Maine's application 
to administer the NPDES program for all areas of the state other than 
Indian country. At that point EPA did not take any action on Maine's 
application to administer the program within the territories of the 
federally-recognized Indian tribes in Maine. EPA published notice of 
its action on February 28, 2001. 56 FR 12791. As described in the 
Federal Register, EPA approved the state's application to administer 
both the NPDES permit program covering point source dischargers and the 
pretreatment program covering industrial dischargers into publicly 
owned treatment works (POTWs). EPA did not authorize the state to 
regulate cooling water intake structures under CWA section 316(b) (33 
U.S.C. 1326(b)). 56 FR at 12792.

2003 Partial Approval of Maine's Program in Indian Territories

    On October 31, 2003, EPA approved the State of Maine's application 
to administer the NPDES program in the

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

2012 Approval of Maine's Program as to Penobscot and Passamaquoddy 
Tribal Discharges

    On March 26, 2012, EPA approved Maine's NPDES program to apply to 
tribally owned and operated discharges in the territories of the 
Penobscot Nation and Passamaquoddy Tribe (the ``southern tribes''), 
pursuant to the decision of the Federal Court of Appeals for the First 
Circuit. 77 FR 23481 (April 19, 2012). The court had found that such 
discharges did not qualify as internal tribal matters and were, 
therefore, subject to the laws of the state. Maine v. Johnson. 498 F.3d 
37 (1st Cir. 2007). As a result, EPA approved the state to implement 
its program in the territories of the southern tribes without 
exception. Accordingly, the state assumed responsibility from EPA for 
issuing and administering the two permits EPA had previously withheld 
for the Penobscot Nation Indian Island treatment works (EPA NPDES 
Permit No. ME 0101311 and MEPDES License No. 2672) and the 
Passamaquoddy Tribal Council treatment works (EPA NPDES Permit No. 
1011773 and MEPDES License No. 2561). In that action the EPA only 
approved the state's program with respect to the two permits for the 
two tribal treatment works. EPA did not take action on Maine's program 
application with respect to the Aroostook Band of Micmacs and Houlton 
Band of Maliseet Indians (the ``northern tribes'').

Intervening Legal Developments

    In the process leading up to EPA's 2003 partial approval of the 
state's program in Indian country, EPA had invited comment on the 
state's jurisdiction under MICSA to implement its program in the 
territories of all the Indian tribes in Maine, including the northern 
tribes. Since EPA's initial decision to defer action on the state's 
application as it applies to the northern tribes, the Federal Court of 
Appeals for the First Circuit has issued several opinions which clarify 
the operation of MICSA's jurisdictional provisions as they apply to 
those tribes. Therefore, EPA is again inviting comment on Maine's 
application to administer its program in the northern tribes' 
territories so that interested parties can address those opinions and 
any other aspects of Maine's NPDES program relevant to authorizing the 
state's NPDES program in these tribes' territories. In this way, EPA 
can respond to comments that more accurately reflect the current state 
of the law and program implementation, rather than comments from 2000 
and 2001.
    In brief, there are three decisions from the First Circuit that EPA 
expects will guide the Agency's analysis of the jurisdictional issues 
in acting on Maine's application as it applies to the northern tribes. 
The first is Maine v. Johnson. 498 F.3d 37. As described above, the 
court held that MICSA's ``internal tribal matters'' exception to the 
state's jurisdiction over the southern tribes did not include 
discharges of pollutants into navigable waters to be permitted under 
Maine's program. Id. at 46. Therefore, Maine's state permitting program 
applies without exception in the territories of the southern tribes, 
and the state has jurisdiction sufficient for EPA to approve the 
state's program under the federal Clean Water Act.
    Second, in Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 (2007) 
the court held that MICSA made the Aroostook Band subject to the 
state's jurisdiction without the exception for ``internal tribal 
matters'' that is available to the southern tribes. Id. at 50. Third, 
in Houlton Band of Maliseet Indians v. Ryan the court extended this 
analysis to the Maliseet tribe. 484 F.3d 73, 74-75 (1st Cir. 2007). In 
both these cases, each tribe sought to block enforcement of Maine's 
antidiscrimination laws in connection with the tribes' decision to 
terminate the employment of certain tribal government employees. The 
court held that the tribes were subject to state regulation when making 
such employment decisions.

Proposed Action on Maine's Program

    Employment decisions by tribal governments qualify as an internal 
tribal matter with respect to the southern tribes and, therefore, are 
beyond the reach of state regulation under MICSA. Penobscot Nation v. 
Fellencer, 164 F.3d 706 (1st Cir. 1999). In its pair of decisions in 
2007, the First Circuit clarified that the scope of Maine's 
jurisdictional authority over the northern tribes reaches further than 
the state's authority over the southern tribes, and the state can 
regulate matters of the northern tribes that would qualify as internal 
tribal matters of the southern tribes. The First Circuit has ruled that 
the state has adequate authority to implement its NPDES program in the 
territories of the southern tribes, even in the face of the internal 
tribal matters exception the southern tribes have from state 
regulation. It appears to follow, therefore, that Maine has an even 
stronger claim of authority to implement its NPDES program in the 
territories of the northern tribes.
    Accordingly, EPA proposes to approve the state to implement its 
NPDES program in the territories of the Houlton Band of Maliseet 
Indians and the Aroostook Band of Micmacs, provided Maine submits and 
EPA approves a program addressing the requirements of CWA section 
316(b) as described below. EPA invites comment on both the 
determination of the state's jurisdiction to implement the program in 
these tribes' territories and the respective roles of the state, 
tribes, and EPA in the context of a state implementing the NPDES 
program in the territories of federally recognized tribes in Maine.\1\
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    \1\ Neither tribe has applied to EPA to implement the NPDES 
permit program, so this proposed action does not invite comment on 
the question of whether either tribe has authority to implement the 
program.
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    Note that in 2001 when EPA first approved the state's program, 
Maine did not have authority to regulate cooling water intake 
structures under CWA section 316(b). The state has since granted Maine 
DEP that authority, and EPA is working with DEP to develop the state 
regulations necessary for Maine to implement that program. Once Maine 
submits that program, EPA will publish a separate notice inviting 
comment on the adequacy of Maine's section 316(b) program before taking 
final action to approve the state's NPDES program, including the 
section 316(b) program, in these territories. The Agency is inviting 
comment now on the balance of the

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state's permitting program and the jurisdictional issue.

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

    Dated: January 31, 2013.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2013-04531 Filed 2-26-13; 8:45 am]
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