Tribal water worries

Maine’s reputation as a national environmental leader did not come by accident. It’s the fruit of years of labor to address past neglect and abuse, of forging ahead into pollution prevention, of rethinking how we go about our business and daily lives to assure that future generations can savor the natural environment that surrounds us.

We should be celebrating the progress we have made and seeking opportunities to work together toward further progress. Instead, we find ourselves engaged in emotional rhetoric that overshadows the environmental achievement and demeans a valued partnership that has contributed to it. I’m talking about the heated debate about water-quality regulation in the state of Maine; the form it has assumed is both troublesome and counterproductive.

In a nutshell, a basic issue of environmental protection has become bound up in the controversy over tribal sovereignty. At the core is the state’s formal request for legal authority established by Congress in 1972. At that time, the nation’s elected leaders (including Ed Muskie) created a mechanism to ensure that water was adequately protected in all states.

Through the Clean Water Act, they established a wastewater permitting program (the National Pollution Discharge Elimination System or NPDES) to be primarily implemented by the states. The federal government, through the U.S. Environmental Protection Agency, would determine whether or not a state is capable of running the program as Congress intended and would delegate federal authority accordingly.

To be given this authority, states must have laws and regulations are at least as stringent as EPA’s. To ensure that these are administered properly, EPA has a number of tools, including the ability to veto state permits, inspect facilities, take enforcement action and withhold program funding.

Forty-four states have been given this authority and are running the NPDES program. In 1998, the King administration, with the support of the Legislature, began a public process to assume NPDES authority because, currently, a facility (such as a municipal sewage treatment plant or an industrial discharger) must get two virtually identical permits from two entities – the Department of Environmental Protection and EPA. In short, we are seeking this change because the status quo is unduly wasteful of public and private resources without the added value of increased environmental protection.

In January, the state of Maine officially submitted its request for NPDES authority to EPA. This is where the environmental protection issue and the tribal sovereignty issue became entangled. The Penobscot Nation and the Passamaquoddy, Maliseet and Micmac tribes formally objected, claiming the state lacks authority to issue licenses where there are tribal lands. Although the deadline established by federal law has passed, EPA has yet to rule one way or another on the question.

As we sit here in limbo, any suggestion that the environment would be compromised if the state had NPDES authority is nonsense. Maine has one of the strongest water-quality protection programs in the country. We are a recognized leader in terms of our standards, our monitoring and our technical expertise. None of this would change if the state had NPDES authority. Furthermore, EPA’s continuing oversight would prevent any hypothetical “slippage” in our program’s environmental effectiveness.

So let’s be clear and distinguish the jurisdictional debate from any discussion of environmental protection. Let’s also not lose sight of the fundamentally constructive relationship the state has had with the tribes when it comes to protecting our natural resources. It is especially troubling to me that most coverage virtually ignores this relationship.

For six years we have had memoranda of understanding with the Penobscot Nation, and we have all worked collaboratively on water-quality protection issues. We have had a partnership with the Penobscots on air monitoring in Old Town and will soon have one with the Micmacs in Presque Isle.

The Houlton Band of Maliseets for years has been a very strong and effective partner in protecting the Meduxnekeag River. And these are just a few examples.

For all our sakes, I hope that EPA acts soon to delegate permitting authority to the state. EPA inaction can only damage our longstanding partnership with the tribes and does nothing for the environment.

Martha G. Kirkpatrick is commissioner of the Maine Department of Environmental Protection.