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Maine Denies Tribe Has Sustenance Fishing Rights

Maine tribes and the DEP duel over water quality regulatory authority.

INDIAN ISLAND, Maine–At the same time that a federal appeals court issued a decision giving the Maine Department of Environmental Protection (DEP) authority over water quality on tribal lands, a potentially toxic algae bloom caused by a paper company’s discharges ran down the Penobscot River past the Penobscot Indian Nation’s community on Indian Island toward the Atlantic Ocean.

The gooey, pea soup–colored mass of cyanobacteria was detected by tribal members, the DEP and the U.S. Environmental Protection Agency (EPA) during the third week of July, officials said. The bloom, which depletes oxy- gen in the water and can devastate plant and fish life, grew to almost 100 miles long by the time the DEP issued a violation notice for phosphorous discharges against the Katahdin Paper Company August 23.

Angie Reed, water resources planner in the Penobscots’ Department of Natural Resources, said the tribe and the DEP took samples of the algae on August 17, which the tribe is having analyzed.

“I like to think that alerted them to the fact that there really is a problem,” Reed told Indian Country Today. “When something like this happens, it’s a loss not only to the tribe but to all the people of Maine.”

The tribe issued a warning not to swim or fish in the river, but the state did not.

Dr. Robert J. Livingston, an expert on the impacts of mill blooms on ecosystems and expert consultant for the Natural Resources Defense Council, said in an August 28 e-mail to Reed that the bloom is potentially toxic.

“One species of blue green algae currently in your system [Microcystis Aeruginosa] is not only highly toxic to just about all plants and animals in the river, but is also dangerous to humans as drinking the water can cause long-term disease impacts.” Livingston said.

The bloom was the latest in a long series of disputes between Maine tribes and the DEP over water quality regulatory authority.

The state gained regulatory authority from the EPA years ago on 19 off-reservation sites, including the Katahdin Paper Company, which discharged pollutants into tribal waters.

The EPA refused to yield the tribes’ authority to the state, claiming that water quality regulation was an “internal tribal matter” over which the state had no authority. The tribes argued that the EPA had a trust responsibility to retain permit- ting authority over all of the waterways to help the tribes protect their natural resources.

The Aug. 9 decision by the 1st Circuit Court of Appeals said that the tribes have no sovereign claim to regulatory authority, and gave the DEP’s authority to regulate water quality on all Maine waterways.

“If this is how it’s going to work,” said John Banks, director of the Penobscots’ Department of Natural Resources, “then it’s not going to be acceptable to the tribe and we will have to consider further legal remedies.”

The Penobscots, a riverine tribe with 200 islands, say the DEP cannot be trusted to protect the river that was the life-blood of their ancestors, and is the heart of their cultural traditions and their sustenance fishing rights – rights that should merit protection by the state and federal governments, Banks said.

“It should mean they put strict limits in the permits for these companies so that those treaty rights can be protected,” Banks said.

Andrew Fisk, DEP’s director of the Bureau of Land and Water Quality, told ICT that the tribe has no sustenance fishing rights.

“When we’re looking at the way the law and the standards are established, that’s correct – there are no sustenance fishing rights or standards that are created that connect back to the manner or extent to which the tribes use the river. There is a standard for fishing for every- body,” Fisk said.

Glenn Saucier, spokesman for the Katahdin Paper Company, said he was aware of tribal sustenance fishing rights, but “not specifically.”

“We want to abide by those tribal laws as much as we possibly can. We want to respect those laws to the nth degree, but until we realize there’s a problem we can’t do much to fix it and that’s what we’re doing now,” Saucier said.

The Katahdin Paper Company, which uses phosphorous to brighten paper, caused a similar algae bloom in 2004. At that time, paper company officials promised to reduce the plant’s phosphorous discharges, and the state accepted the promise without adding limits to the company’s permit.

The tribe’s monitoring pro- gram showed that the plant’s phosphorous discharges had increased by five times the amount it was using in 2005 and 2006, Reed said.

“It should never have gotten this far,” Banks said, heatedly. “Since Maine has had the authority to issue these permits, they seem more interested in protecting the financial interests of the paper companies than they are in protecting the ecological integrity of the Penobscot River. Our tribal culture depends on the ecological integrity of the river. It’s a slap in the face to us for the state to allow the companies to discharge these levels of phosphorous that cause these terrible algae blooms,” Banks said.

Saucier said he didn’t know how much phosphorous was put into the river.

“To our knowledge, we’re still studying that and the DEP is also looking into that as well,” Saucier said.

Saucier denied that the company had violated any regulations.

“There are no phosphorous limits set by the DEP in the state of Maine, so when they sit down and say there are limits, there are no limits right now. We anticipate there will be at some point in time. What we received from the state was a notice of violation, however there is no violation, because there are no limits and there is no monetary fine,” Saucier said.

Told that the paper company believes it did not violate any regulations, Fisk said, “That’s incorrect. A notice of violation is very clear and if they want to dispute that, they’re welcome to.”

Fisk said the DEP has all the evidence it needs to prove the bloom was caused by the mill. He said the paper company was told in 2004 not to use the phosphorous levels that had caused the bloom. The company’s permit was not revised to reflect that order, because the DEP was in the process of updating water quality models and reissuing licenses. The agency expects to issue the new licenses in 2008, Fisk said.

Meanwhile, the DEP has ordered the paper company to limit its phosphorous discharges, conduct weekly testing and report its findings monthly.