Maine Gov. Threatens to Stop State Cooperation on Water Issues

Published September 18, 2015

Maine Gov. Paul LePage (R), who is already fighting efforts to create a new National Park in the state, is so frustrated with what he calls the Environmental Protection Agency’s “aggressive regulatory overreach” with regard to Maine’s tribal waters, has threatened to end state led water quality efforts granted to Maine under the federal Clean Water Act and throw it all back into the EPA’s lap. The governor outlined his threat in a letter to Maine’s congressional delegation Aug. 31. The threat was 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 Maine does ultimately relinquish its federally delegated water pollution authority, it would be the first state to give such powers back to the federal government. In doing so, the state would surrender its authority to issue federal permits to factories and wastewater plants, and to monitor and enforce the provisions of the Clean Water Act. 

The unprecedented action would put EPA’s New England regional office in Boston, in charge of permitting Only four of the nation’s forty-six states don’t enforce the Clean Water Act themselves: two of those four, New Hampshire and Massachusetts, are in New England, which has created a substantial permitting backlog in the regional office. If Maine returns its power to EPA, the backlog would only be expected to worsen. 

The Tribune News Service cites Ken Moraff, director of the water quality office at EPA-New England, saying, “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.” 

EPA Back’s Tribes in Water Conflict

The issue animating Lepage’s present angst is a longstanding dispute over the Penobscot tribe’s jurisdictional, regulatory and statutory rights in the Penobscot River. On Feb. 2, the EPA concluded Maine’s proposed water-quality standards were inadequate to protect sustenance fishermen on 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 fishing rights granted to the tribes under the 1980 Indian claims settlement acts, extinguishing the tribe’s claim to two-thirds of the state, required more restrictive standards for toxins in Indian waters. The EPA gave Maine 90 days to comply with its determination. 

LePage called EPA’s decision, “outrageous,” an act of “retribution” against the DEP for having disagreed with the agency.

Subsequently, Maine Attorney General Janet Mills informed the EPA the state file 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. 

Maine’s tribes, would welcome the state abdicating its leading role in water quality. In early September 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,” said Francis to the Tribune News Service

Businesses, Cities Share Gov.’s Frustration

While businesses and municipalities in the region may not welcome the Governor’s move, they understand it. According to Matt Manahan, an attorney representing municipalities, paper companies and other entities that discharge into the Penobscot River watershed, he and his clients share the governor’s frustration.”

“I can understand where the governor’s office is coming from, and I’m sympathetic with it,” Manahan told the Tribune New Service. “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,” continued Manahan. “But if EPA takes over, I don’t see it as being that different than if EPA tells Maine how to run its program.” 

In his appeal to the state’s federal legislative delegation, LePage asked them 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. 

In a statement concerning the lawsuit, Republican Rep. Bruce Poliquin wrote, “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.” 

H. Sterling Burnett, Ph.D., ([email protected]) is the managing editor of Environment & Climate News.