APPLICABLE LAW

Sebago Lake is Maine’s second largest freshwater waterbody and is classified GPA by the Maine Legislature. Narrative water quality standards for Class GPA waters state: “Class GPA waters must be of such quality that they are suitable for the designated uses of drinking water after disinfection, recreation in and on the water, fishing, agriculture, industrial process and cooling water supply, hydroelectric power generation, navigation and as habitat for fish and other aquatic life. The habitat must be characterized as natural.” 38 MRSA §465-A (1)(A). For the purposes of this classification, the Maine Legislature has defined “natural” as: “living in, or as if in, a state of nature not measurably affected by human activity.” 38 MRSA §466 (9).

For many decades, the State of Maine has owned and operated a large State Park on the northeast shoreline of Sebago Lake: Sebago Lake State Park. Sebago Lake State Park is one of the most popular and intensively used State Parks in Maine. The Park’s main attraction is the shoreline, natural sand beaches and waters of Sebago Lake. Maine’s water quality classification laws grant special protection to waterbodies located in state and/or national parks. 38 MRSA §464 (4)(F)(2) states: “Where high quality waters of the State constitute an outstanding national resource, that water quality must be maintained and protected. For purposes of this paragraph, the following waters are considered outstanding national resources: those water bodies in national and state parks and wildlife refuges; public reserved lands; and those water bodies classified as Class AA and SA waters pursuant to section 465, subsection 1; section 465-B, subsection 1; and listed under sections 467, 468 and 469.” Under the plain language of 38 MRSA §464(4)(F)(2), Sebago Lake is a water body in a state park and therefore falls under the protective language of the above subsection.

Maine’s Anti-Degradation Statute applies to Sebago Lake and Class GPA waterbodies. This statute states in part: “The antidegradation policy of the State is governed by the following provisions. (1) Existing in-stream water uses and the level of water quality necessary to protect those existing uses must be maintained and protected. Existing in-stream water uses are those uses which have actually occurred on or after November 28, 1975, in or on a water body whether or not the uses are included in the standard for classification of the particular water body. Determinations of what constitutes an existing in-stream water use on a particular water body must be made on a case-by-case basis by the department. In making its determination of uses to be protected and maintained, the department shall consider designated uses for that water body and ... (d) The use of the water body for recreation in or on the water, fishing, water supply, or commercial activity that depends directly on the preservation of an existing level of water quality. Use of the water body to receive or transport waste water discharges is not considered an existing use for purposes of this antidegradation policy; and (e) Any other evidence that, for divisions (a), (b) and (c), demonstrates their ecological significance because of their role or importance in the functioning of the ecosystem or their rarity and, for division (d), demonstrates its historical or social significance.” 38 MRSA §464 (4)(F)(1)(D, E)

Maine’s Anti-Degradation Statute states at 38 MRSA §464(F)(1-A)(B): “The department may only issue a waste discharge license pursuant to section 414-A, or approve a water quality certification pursuant to the United States Clean Water Act, Section 401, Public Law 92-500, as amended, when the department finds that ... (b) The existing in-stream use involves use of the water body for recreation in or on the water, fishing, water supply or commercial enterprises that depend directly on the preservation of an existing level of water quality and the applicant has demonstrated that the proposed activity would not result in significant degradation of the existing use.”