Drummond Woodsum Attorneys at Law

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December 9, 2016

On Thursday, the EPA issued water quality standards governing the Penobscot River to protect the sustenance fishing rights of the Penobscot Nation. Representing the Penobscot Nation in this matter were Drummond Woodsum attorneys Kaighn Smith Jr., Jamie Kilbreth, Adrianne Fouts, and David Kallin.

In a press release from the tribe, Penobscot Chief, Kirk Francis, praised EPA. "This is great news for the Penobscot River, the Penobscot People, and the State of Maine," said Francis. "This brings us one step closer to restoring the fish habitat of the Penobscot River for the betterment of all who use this extraordinary River."

The Penobscot River, the aboriginal homeland of the Penobscot Indian Nation, historically supported the largest habitat for sea run salmon in the North Atlantic. The Atlantic salmon is an anadromous fish, which typically spends 2-3 years in freshwater before migrating to the ocean, where it also spends 2-3 years before returning to its natal river to spawn. Although the Atlantic salmon has been listed on the endangered species list since 2009, the State of Maine, a number of US agencies, NGOs, and the Penobscot Nation are working together in an internationally-recognized river restoration project to improve fish habitats in the Penobscot River through dam removals and other efforts.

"The federal and private investment of millions of dollars to restore the Penobscot River's migratory fisheries is now resulting in rebounding runs of herring, shad, sturgeon, and over time we expect, Atlantic salmon." said Andrew Goode, Vice President of the Atlantic Salmon Federation. "The EPA's water quality standards are an important contribution to the restoration of these fisheries for the benefit of the Penobscot Indian Nation and the people of Maine."

A year ago, the EPA disapproved human health criteria that Maine used in its water quality standards because they exposed Penobscot tribal members and other Maine Indians to cancer risks, given tribal fish consumption rates. Maine used a fish consumption rate of 32.4 grams per day for Native populations. The EPA found that rate erroneous and adopted water quality standards to protect the health of tribal members at a consumption rate of 286 grams per day.

Historically, Penobscot tribal members have consumed fish and other food sources from the Penobscot River at much higher rates. In the 1980s and early 1990s, for example, Penobscots relied upon the River for food sources at the rates averaging up to 750 grams per day. But those consumption rates went down in the face of dioxin and other pollutant contamination in the River.

"We still have a ways to go to restore the health of the River," said Chief Francis, "but EPA's water quality standards are a huge step forward to ensure that Penobscot people can safely eat from the River as we have done for centuries."

In 1980, upon settling land claims of the Penobscot Nation and other tribes, the US Congress confirmed that the tribes would have a right to take fish within their reservations for sustenance. Last year, the EPA, backed by the US Department of the Interior, told Maine that the law required the existence of fish of a quality to eat at meaningful levels of consumption. Maine officials have, in the past, taken the position that the Tribes' sustenance fishing rights do not guarantee a fish habitat.

Public support for EPA's water quality standards is overwhelming: of the 107 comments provided to the Agency, 101 were in favor of the standards and only 6 voiced concerns. EPA's standards protect the fishing rights of all Maine tribes.

"As indigenous people, we have long known that water is life," said Chief Francis. "EPA's water quality standards protect life; it's as simple as that."

View the final rule and comments.

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