By Colin Woodard
Maine Gov. Paul LePage, frustrated with "aggressive regulatory overreach" by the EPA over Maine's tribal waters, has threatened to relinquish key powers granted to the state under the federal Clean Water Act and return them to the EPA. The threat was outlined in a letter to Maine's congressional delegation Aug. 31 and repeated by Patricia Aho, the outgoing environmental protection commissioner, in a letter sent the same day to the EPA.
"You cannot understand my frustration and the frustration of the (Department of Environmental Protection) as we continue to try to exercise our delegated authority under the Clean Water Act," LePage wrote Maine's delegation. "I am ... seriously considering relinquishing some or all of Maine's delegated authority under this act."
If carried out, Maine would be the first state to give such powers back to the federal government, surrendering its authority to issue federal permits to factories and wastewater plants, and to monitor and enforce the provisions of the Clean Water Act, the landmark legislation championed by U.S. Sen. Edmund Muskie, a former governor of Maine.
The unprecedented action would turn water quality permitting over to the EPA's New England regional office in Boston, where there is already a backlog. Forty-six states enforce the Clean Water Act themselves, but of the four that do not -- Idaho, New Mexico, New Hampshire and Massachusetts -- two are in New England, creating ample work for the Boston staff.
"We are already fairly backed up now with New Hampshire and Massachusetts permits, and we would not have any additional staff, so it could take longer for facilities to get permits if EPA was writing them," said Ken Moraff, director of the water quality office at EPA-New England.
Nick Bennett, watersheds program director with the Natural Resources Council of Maine, said the move would make little sense for industry, the state or even the governor.
"The governor is saying he doesn't like an EPA decision, so he's saying, 'Forget it, I'm not going to do that job anymore,' " Bennett said. "It would cause a lot of confusion and reduce regulatory certainty for industrial dischargers.
"It looks like he's just angry, and would cut off his nose to spite his face," Bennett said.
Assessing the Impact of Change
Neither the governor's office nor the Department of Environmental Protection responded to interview requests.
Sean Mahoney, director of the Maine office of the Conservation Law Foundation, said such a move would make little sense. "The tantrum the governor is having over the EPA's decisions -- pulling out of the delegation program -- wouldn't change at all EPA's ability and position on those standards," he said. "The state DEP is closer to the municipalities and businesses in Maine and is able to be more responsive than a federal agency in Boston is going to be."
Mahoney believes LePage has the power to withdraw from the program without action by the state Legislature.
Matt Manahan, an attorney who represents municipalities, paper companies and other entities that discharge into the Penobscot River watershed, said he and his clients shared the governor's frustration, which centers around a longstanding dispute over the Penobscot tribe's jurisdictional, regulatory and statutory rights in the Penobscot River.
"I can understand where the governor's office is coming from, and I'm sympathetic with it," Manahan said. "It makes no sense for the state to assume all the costs of a delegated program and not be able to do it because the EPA is going to micromanage it.
"We'd prefer that Maine keep the program, because we prefer working with state regulators who know the state," he said. "But if EPA takes over, I don't see it as being that different than if EPA tells Maine how to run its program."
Clashing Over Tribal Waters
The latest chapter in the dispute began Feb. 2, when the EPA said that the state's proposed water-quality standards were inadequate to protect sustenance fishermen on the reservations from certain toxins, because they eat much greater volumes of fish than the average Mainer.
The agency, acting in consultation with the federal Bureau of Indian Affairs and the U.S. Department of Justice, asserted such fishing rights were granted to the tribes under the 1980 Indian claims settlement acts, which extinguished the tribe's claim to two-thirds of the state. It ordered the state to come up with more restrictive standards for certain toxins in Indian waters within 90 days. LePage subsequently blasted the decision, calling it "outrageous" and an act of "retribution" against the DEP for having crossed the agency.
In March, Attorney General Janet Mills informed the EPA that Maine would be filing suit, arguing the federal agency was treading on Maine's regulatory powers in violation of stipulations in the settlement acts. Subsequently, the Penobscot, Passamaquoddy and Maliseet tribes recalled their representatives to the Legislature and appealed to Congress to intervene in the growing dispute over the meaning of the 1980 acts.
Different Positions in Delegation
On Thursday, Penobscot Nation Chief Kirk Francis said the tribe would be happy if the governor made good on his threat. "Giving back the delegation to EPA would obviously create a better working relationship for us, given the trust relationship we have with the federal government," Francis said.
In his letter, LePage asked the congressional delegation to intervene. "I am at a loss as to what has brought this aggressive regulatory overreach about, but the state desperately needs your help to reign (sic) in this agency," he wrote.
Members of the delegation had disparate positions when asked for their response to the letter.
In a joint statement, Maine's two U.S. senators -- Republican Susan Collins and independent Angus King -- said they had been working with the governor's office and DEP "to reach an amicable resolution to this ongoing issue" and were committed to seeing it through. They said it is important to implement "high water-quality standards ... in a way that is appropriately tailored to meet the needs of the state," suggesting they do not want Maine to relinquish its authority.
A statement from Rep. Chellie Pingree, a Democrat, rejected the governor's argument and expressed support for the Penobscots' sustenance fishing rights, saying Maine has "an obligation to keep (waters) clean enough for them to continue to do that."
"I don't think it's a good idea for Maine to give up our delegated authority to regulate waters in Maine under the Clean Water Act," Pingree said. " I think this particular issue can be solved without Maine completely abandoning its ability to create these clean water regulations statewide."
Republican Rep. Bruce Poliquin confined his remarks to the forthcoming lawsuit. "I am encouraged that Governor LePage and Attorney General Janet Mills are working together to stop Washington bureaucrats from overreaching unnecessarily into our state waters," Poliquin wrote. His office did not respond to a request for comment on the governor's threat.
(c)2015 the Portland Press Herald