INDIAN ISLAND, Maine - After more than three years of intense lobbying by Maine officials and large paper companies, the Environmental Protection Agency has given the state jurisdiction over almost all potential water polluters in tribal watersheds.
The decision runs contrary to EPA practice in 44 other states, in which the federal government retained control over Indian territories. It also rejects an advisory legal opinion from the Department of Interior, which had upheld the tribal side of the long-running dispute.
Closely intertwined with the bitter sovereignty struggles of the Penobscot Indian Nation and the two reservation governments of the Passamaquoddy people, the dispute involves the authority to issue federal water pollution control permits under the Clean Water Act. The federal act requires facilities discharging into "water bodies" to obtain permits under the National Pollution Discharge Elimination System (NPDES), but the EPA has been turning this duty over to state governments when it finds their programs adequate. Until the Maine decision, however, it retained federal control for areas that affect Indian tribes.
The Penobscot and Passamaquoddy are "riverine" tribes with traditionally deep ties to their river systems and their fish runs. The Penobscot's Indian Island reservation, in fact, sits in the middle of the Penobscot River. The tribes vehemently resisted giving the state authority over their watersheds, arguing that it was a notoriously weak regulator of its mills and paper companies. Even the largest polluters are paying fines of no more than $3,000 a year, said Penobscot Tribal Governor Barry Dana.
The tribes, on the contrary, pride themselves on their efforts against pollution. Tribal environmental officers have been instrumental in reporting violations to the EPA, and the Penobscot Natural Resources department, with a staff of 25, maintains a state-of-the-art water testing lab which can detect 12 pollutants, as opposed to the three for which the state tests. The paper companies in their turn have vehemently resisted giving the tribes a say in their regulation.
"[The paper companies] have lobbied very hard with state officials and with the Congressional delegation," said Kaighn Smith, a Portland attorney representing the tribes. "The paper companies in the state wield tremendous economic and political power."
The fight against tribal regulation three years ago carried over into an attack on tribal sovereignty, which in Maine has been uniquely compromised by the ambiguous federal 1980 Maine Indian Claims Settlement Act (MICSA). A lawsuit by a consortium of discharge permitees led by paper companies produced a series of decisions putting tribes on the same subordinate footing as Maine municipalities.
In the meantime, however, EPA obtained an advisory opinion from Department of Interior lawyers upholding Maine tribal sovereignty. In January 2001, the EPA gave Maine permitting authority for most of the state but reserved judgment on "Indian country." The Penobscot and Passamaquoddy Indians maintained that the federal government should keep jurisdiction over the watersheds of the Penobscot and St. Croix river systems. So the EPA asked the Department of Justice for a further opinion, supposedly focusing on how much of the rivers should be considered tribal territory.
But in the Oct. 31 release announcing the NPDES decision, the EPA ignored both of these agencies and adopted a very restrictive reading of the Settlement Act, explicitly based on its own analysis. The language, however, did appear to track the ruling of the Maine Supreme Court in the paper company lawsuit against the tribes, which used impact on non-Indians as a criterion for limiting the scope of a tribe's "internal affairs."
"EPA concluded that in MICSA Congress gave the state authority to regulate in the tribes' territories where the impacts are felt substantially by non-Indians," said the statement from the EPA New England office. "Therefore, EPA decided that the state has the authority to regulate facilities with their operations largely outside of tribal land and where the water permit would have a substantial impact on non-Indians."
The decision gave the state control over 19 facilities along the Penobscot River, including several major paper mills that had been excluded from the January 2001 turnover. EPA kept control only over two tribal sewage treatment plants, the Penobscot Nation facility on Indian Island and the Passamaquoddy plant on the Pleasant Point reservation.
These two plants, said EPA, "were internal tribal matters, as both facilities' customers are all tribal members, the facilities are owned and operated by the tribes, and the discharges have minimal impacts in waters outside the tribes' territories."
"The EPA decided to go out on its own and to issue a decision contrary to the opinion they requested from the Department of Interior," said Smith. He said the tribes were still deliberating how to respond to the decision and that a court appeal "was an option."
An EPA spokesman in Boston was asked what role the Interior or Justice opinions had played in its decision, but the agency legal staff had not replied by press time.
The EPA said it had still not decided on permitting authority in the territory of Maine's two other federally recognized tribes, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs. It said, "a different statutory legal relationship exists between the state and these tribes, and EPA is still analyzing the legal arguments surrounding their status." It added that it issued no discharge permits on either of these territories.
Regional Administrator Roger W. Varney issued a note of reassurance to tribal governments outside of Maine. "In this decision, we followed our best analysis of the law Congress passed establishing a unique relationship between the tribes and state government in Maine," he said. "It in no way represents a change in EPA's approach towards regulation of Indian territories in any other state."