Can the Maine Board of Environmental Protection adopt regulations that set color standards for the state's lakes, rivers, and streams, or does that require new legislation?

Plain-English summary

Representative Michael Michaud asked AG James E. Tierney whether the Board of Environmental Protection had legislative authority to adopt color standards for Maine waters by regulation, or whether new legislation was required. The question carried real economic weight: paper mills and other industrial dischargers had long contributed visible color to Maine rivers, and a regulatory color standard would change permit conditions for those facilities. Tierney concluded the BEP had clear authority under two independent statutory grounds.

The first ground was the BEP's general rulemaking power. Section 343-A of Title 38 provides that "the Board of Environmental Protection may adopt, amend and repeal reasonable rules and emergency rules necessary for the proper administration, enforcement, implementation and interpretation of any provision of law that the Department is charged with the duty of administering." Combined with the BEP's basic mission under § 361 to "control, abate and prevent the pollution of the air, waters, coastal flats and prevent diminution of the highest and best use of the natural environment of the State," that general authority easily reaches color standards.

The second ground was the Water Classification Program in §§ 464-470, enacted by P.L. 1985, ch. 698, § 15, effective July 16, 1986. Section 464(4)(A)(4) prohibits waste discharge licenses for "[d]ischarge of pollutants to waters of the State which imparts color, taste, turbidity, toxicity, radioactivity or other properties which cause those waters to be unsuitable for the designated uses and characteristics ascribed to their class." Section 464(5) then directed the BEP to "promulgate rules necessary to implement the water quality classification system established by this article," with a January 1, 1987 deadline. The combination of the discharge-license prohibition (which explicitly identifies color as a regulated property) and the mandatory rulemaking directive made the BEP's authority to adopt color standards more than permissive; it was arguably required.

The opinion's structure is straightforward: whether the BEP relies on § 343-A (discretionary general rulemaking) or § 464(5) (mandatory program-specific rulemaking), the authority exists. New legislation is unnecessary.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Water Classification Program?

Maine's Water Classification Program (38 M.R.S.A. §§ 464-470) assigns every surface water body in the state to one of several classification tiers based on intended use and water quality. The classifications drive the substantive standards for discharges to those waters, including limits on color, taste, turbidity, and other pollutants that could make the water unsuitable for its assigned use.

Why was color regulation a sensitive issue in 1989 Maine?

Maine's pulp and paper industry had long discharged colored effluent into the Androscoggin, Penobscot, Kennebec, and other rivers. Color standards would constrain those discharges, with significant costs for mill operations. The Legislature's express identification of color in § 464(4)(A)(4) reflects the political prominence of the issue. The BEP rulemaking under § 464(5) was the implementation step.

Does discretionary rulemaking authority require additional standards?

Section 343-A is a broad delegation tied to "any provision of law that the Department is charged with the duty of administering." The breadth is constrained by the substantive statutes the BEP administers (here, the pollution control mission in § 361 and the Water Classification Program in §§ 464-470). Maine courts evaluate delegation by reference to the standards the substantive law provides; the general rulemaking grant does not itself need additional standards if the substantive law supplies them.

What was the January 1, 1987 deadline?

Section 464(5) required the BEP to promulgate water-quality classification implementation rules by January 1, 1987. By the time of Tierney's 1989 opinion, the BEP was already two years past that deadline for some aspects of implementation. The opinion's reminder that rulemaking was both authorized and arguably required functioned as gentle pressure on the BEP to complete the regulatory build-out.

Background and statutory framework

Maine's environmental rulemaking architecture combines a general delegation (BEP may make rules to implement any law it administers) with a series of program-specific delegations (BEP shall make rules to implement specific programs). The Water Classification Program is one of the latter. The opinion is a clean piece of statutory construction confirming that color, an explicit textual category in the discharge prohibition, can be the subject of a quantitative standard set by rule. The opinion does not address the substantive content of any color standard or the procedural requirements (Maine Administrative Procedure Act compliance, public hearings, etc.) that any such rule must satisfy.

Citations

• 38 M.R.S.A. § 343-A (Board of Environmental Protection rulemaking authority)
• 38 M.R.S.A. § 361 (BEP duty to control pollution)
• 38 M.R.S.A. § 464 (Water Classification Program)
• 38 M.R.S.A. § 464(4)(A)(4) (discharge license prohibition for color/taste/turbidity/toxicity/radioactivity)
• 38 M.R.S.A. § 464(5) (mandatory BEP rulemaking by Jan. 1, 1987)
• 38 M.R.S.A. §§ 464-470 (Water Classification Program)
• P.L. 1985, ch. 698, § 15 (effective July 16, 1986)
• Maine Administrative Procedure Act

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890607.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

89-7

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

June 7, 1989

Representative Michael Michaud
Maine House of Representatives
State House Station #2
Augusta, Maine 04333

Dear Representative Michaud:

You have asked whether the Board of Environmental Protection has been authorized by the Legislature to adopt regulations to establish color standards for Maine waters. For the reasons which follow, it is the opinion of this Department that the Board of Environmental Protection does have such authority.

The Legislature has stated that it is the duty of the Board of Environmental Protection "... to control, abate and prevent the pollution of the air, waters, coastal flats and prevent diminution of the highest and best use of the natural environment of the State." 38 M.R.S.A. § 361. To carry out its duties, the Board of Environmental Protection has been invested with broad rulemaking authority. 38 M.R.S.A. § 343-A provides as follows:

The Board of Environmental Protection may adopt, amend and repeal reasonable rules and emergency rules necessary for the proper administration, enforcement, implementation and interpretation of any provision of law that the Department is charged with the duty of administering. Rules duly promulgated shall have the full force and effect of law.

Among the laws the Board is charged with administering is the Water Classification Program. 38 M.R.S.A. §§ 464-470. The Water Classification Program establishes a classification system for the waters of the State and provides, inter alia, that waste discharge licenses may not be issued by the Board of Environmental Protection for categories of discharges, including:

Discharge of pollutants to waters of the State which imparts color, taste, turbidity, toxicity, radioactivity or other properties which cause those waters to be unsuitable for the designated uses and characteristics ascribed to their class.

38 M.R.S.A. § 464(4)(A)(4) (emphasis added).

This Department believes that the broad rulemaking authority in § 343-A clearly allows the adoption by the Board of Environmental Protection of a regulation establishing color standards for Maine waters as well as color standards for individual discharges to Maine waters.

The Board of Environmental Protection not only has the authority to adopt rules establishing color standards, but it may well be argued that the Board was required by the Legislature to adopt such regulations by January 1, 1987. When the Legislature enacted the Water Classification Program (P.L. 1985, c. 698, § 15, eff. July 16, 1986), it directed the Board to adopt rules necessary to implement the Program:

In accordance with the Maine Administrative Procedure Act, the board shall promulgate rules necessary to implement the water quality classification system established by this article. In promulgating rules, the board shall solicit and consider, in addition to any other materials, information on the economic and environmental impact of those rules.

Rules shall be promulgated by January 1, 1987, and as necessary thereafter, and shall include, but are not limited to, sampling and analytical methods, protocols and procedures for satisfying the water quality criteria, including evaluation of the impact of any discharge on the resident biological community.

Rules adopted pursuant to this subsection shall become effective upon adoption. Rules adopted pursuant to this subsection shall be submitted to the joint standing committee of the Legislature having jurisdiction over natural resources for review during the next regular session of the Legislature following adoption. This committee may submit legislation it deems necessary to clarify legislative intent regarding rules adopted pursuant to this subsection. If the committee takes no action, the rules shall continue in effect.

38 M.R.S.A. § 464(5) (emphasis added).

As noted earlier, the water quality classification system referred to in § 464(5) includes the prohibition against issuance of licenses for the "discharge of pollutants to waters of the State which imparts color ... which cause those waters to be unsuitable for the designated uses and characteristics ...." § 464(4)(A)(4).

Whether the Board's authority derives from the required rulemaking pursuant to § 464(5) or the discretionary rulemaking pursuant to § 343-A, it is clear that the Board has been granted the authority by the Legislature to adopt color standards for Maine waters.

Sincerely,
JAMES E. TIERNEY
Attorney General

JET/d