Discharges to class A waters

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARDS. COHEN ATTORNEY GENERAL STATE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA, MAINE 04333 May 2, 1979. Henry E. Warren, Commissioner Department of Environmental Protection State House Augusta, Maine 04333 Re: Discharges to Class A Waters Dear Commissioner Warren~ STEPHEN L. DIAMOND JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J, STOLT DEPUTY ATTORNEYS GENERAL You have posed the following questions for a· legal opinion: 1. Can you discharge to Class A [fresh surface] water when the quality of the discharge is equal to or better than the quality of the receiving water? 2. Is there any condition under which there can be a [new] discharge to Class A water? Answer: Assuming'that the questions include the terms shown in brackets above, and that the discharge would contain "wastes," the answer to both questions is "no." Discussion: The pivotal fact is that the proposed· 1 receiving waters are classi- fied as Class A waters. 38 M.R.S.A. §363, as amended by P.L. 1977, c. 376, §6, specifically provides that "no new discharges will be per- mitted [into Class A waters] after the effective date of this section. 11 The amendment inserting this langu,age became effective October 24, 1977. A copy of the statute is appended., The first sentence of the same paragraph containing the quoted prohibition also provides that ''[t]here shall be no discharge of sewage or other wastes inJ:.o water of this· classification ... " subject to a temporary exception for "existing licensed discharges. 11 Prior to the adoption of P~L~ 1977, c. 376, rthis sentence prohibited such discharges "unless specifically licensed by the board upon finding that no degradation will result to the .quality of such waters." Taken alone, the "no new discharges" language added in 1977 might be read to prohibit the addition of any water or effluent to .. ., - - ,-. ~ -r-- ,..,_ --- -·- - -- ,. -.. ~-...-----~-~-~~----~•·~,~~· ,_,, --------~ -2- Class A waters, whether or not thedischarge contained "sewage or other wastes." However,· given the ·statutory definition of "discharge,"• the better reading would be that any addition of pollutants to Class A waters is prohibited, unless licensed.before the effective date of the amendment. Since the Department has construie~ 1the term "waste" as used in the· water statutes to mean·· "pollutant,''.:::t this reading would make the first and last sentences·of the paragraph consistent, in spite of their slightly different phrasing. The second question answers itself, since it uses the term "discharge." Assuming·instead that the question is whether any water or effluent may be added to Class A waters under any circum- stances, it appears that it would·be permitted only if the added water contained no pollutants. .GWS: jg Enc: 1/ 2/ I hope this will be·of assistance.to you. ~; incere ly, G .___,,______· y;~ mple _ f torney General "' Discharge ' means· any spilling, ·1eaking, "pumping,-· pouring, emptying, dumping, disposing ··or, .. other addi ton of any pollutant to water-of the State." 38 M.R.S.A. §361-A(l). See §§10-12 of the Department•silegislation introduced in the 109th Legislature as L.D., '.1071, and the· accompanying statement of fact. ·· · 38 § 362-·A WA'l'EI;S AND NAVIGATION Title 38 search and experimentation conducted under this section shall be subject to such terms and conditions as the department deems necessary in order to protect the public's health, safety and general welfare, and may be terminated by the department at any time upon 24 hours' written notice. 1973, c. 423, § 3. § 363. Standards of classification of fresh waters The board shall have 4 standards for the classification of fresh surface waters. Class A shall be the highest classification and shall be of such quality that it can be used for recreational purposes, in- cluding bathing, and for public water supplies after disinfection. The dissolved oxygen content of such waters shall not be less than 75% saturation or as naturally occurs, and contain not more than 20 fecal coliform bacteria per 100 milliliters. These waters shall be free from sludge deposits, solid refuse and floating solids such as oils, grease or scum. There shall be no disposal of any matter or substance in these waters which would impart color, turbidity, taste or odor other than that which naturally occurs in said waters, nor shall such matter or substance alter the temperature or hydrogen-ion concentration of these waters 01· contain chemical constituents which would be harmful or offensive to humans or which would be harmful to animal or aquatic life. No radioactive matter or substance shall be permitted in these waters other than that occurring from natural phenomena. There shall be no discharge of sewage or other wastes into water of this classification and no deposits of such material on the banks of such waters in such a manner that transfer of the material into the waters is likely, except that existing licensed discharges into water of this classification will be allowed to continue until practical alternatives exist, but no new discharges will be permitted after the effective date of this section. Class B, the 2nd highest classification, shall be divided into 2 designated groups as B-1 and B-2. B-1. Waters of this class shall be considered the higher quality of the Class B group and shall be acceptable for recrea- tional purposes, including water contact recreation, for use as potable water supply after adequate treatment and for a fish and wildlife habitat. The dissolve.d oxygen of such waters shall be not less than 75% of saturation, and not less than 5 parts per million at any time. The fecal coliform bacteria shall not ex- ceed 60 per 100 milliliters. 262 Ch. 3 PROTECTION OF WATERS 38 § 363 These waters shall be free from sludge deposits, solid refuse and floating solids such as oils, grease or scum. There shall be no disposal of any matter or subs~ance in these waters which imparts color, turbidity, taste or odor. which would impair the usages ascribed to this classification nor shall such matter or substance alter the temperature or hydrogen-ion concentration of these waters so as to render such waters harmful to fish or other aquatic life. There shall be no discharge to these waters which will cause the hydrogen-ion concentration or "pH" of these waters to fall outside of the 6.0 to 8.5 range. There shall be no .disposal of any matter or substance that contains chemical constituents which are harmful to humans, animals or aquatic life or which adversely affect any other water use in this class. No radioactive matter or substances shall be discharged to these waters which will raise the radio-nuclide concentrations above the standards as established by the United States Public Health Service as being acceptable for drinking water. These waters shall be free of any matter or substance which alters the compo- sition of bottom fauna, which adversely affects the physical or chemical nature of bottom material, or which interferes with the propagation of fish. There sha1J be no disposal of sewage, industrial wastes or other wastes in such waters, except those which have received treatment for the adequate removal of waste constituents includ- ing, but not limited to, solids, color, turbidity, taste, odor or tox- ic material, such that these treated wastes will not lower the standards or alter the usages of this classification, nor shall such disposal of sewage or waste be injurious to aquatic life or ren- der such dangerous for human consumption. B--2. Waters of this class shall be acceptable for recrea- tional pur:ooses including water contact recreation, for industrial and potable water supplies after adequate treatment, and for a fish and wildlife habitat. The dissolved oxygen of such waters shall not be less than 60% of saturation, and not less than 5 parts per million at any time. The fecal coliform bacteria is not to exceed 200 per 100 milliliters. These waters shall be free from sludge deposits, solid refuse and floating solids such as oils, grease or scum. There shall be no disposal of any matter or substance in these waters which imparts color, turbidity, taste or odor which would impair the usages ascribed to this classification, nor shall such matter or substance alter the temperature or hydrogen-ion concentration of the waters so as to render such waters harmful to fish or oth- er aquatic life. There shall be no disposal of any matter or sub- stance that contains chemical constituents which are harmful to 263 38 § 363 WATERS AND NAVIGATION Title 38 humans, animal or aquatic life, or which adversely affect any other water use in this class. There shall be no discharge to these waters which will cause the hydrogen-ion concentration or "pH" of these waters to fall outside of the 6.0 to 8.5 range. No radioactive matter or substance shall be discharged to these wa- ters which will raise the radio-nuclide concentrations above the standards as established by the United States Public Health Service as being acceptable for drinking water. These waters shall be free of any matter or substance which alters the compo- sition of bottom fauna, which adversely affects the physical or chemical nature of bottom material, or which interferes with the propagation of fish. There shall be no disposal of sewage, industrial wastes or other wastes in such waters except those which have received treatment for the adequate removal of waste constituents includ- ing, but not limited to, solids, color, turbidity, taste, odor or tox- ic material, such that these treated wastes will not lower the standards or alter the usages of this classification, nor sht1ll such disposal of sewage or waste be injurious to aquatic life or render such dangerous for human consumption. Class C waters, the 3rd highest classification, shall be of such a quality as to be satisfactory for recreational boating and fishing, for a fish and wildlife habitat and for other uses except potable water supplies and water contact recreation, unless such waters are adequately treated. The dissolved oxygen content of such waters shall not be less than 5 parts per million, except in those cases where the board finds that the natural dissolved oxygen of any such body of water falls below 5 parts per million, in which case the board may grant a variance to this requirement. In no event shall the dissolved oxygen content of such waters be less than 4 parts per million. The fecal coliform bacteria is not to exceed 1,000 per 100 milliliters. These waters shall be free from sludge deposits, solid refuse and floating solids such as oils, grease or scum. There shall be no disposal of any matter or substance in these waters which imparts color, turbidity, taste or odor which would impair the usages ascribt:d to this classification, nor shall such maUel' or substance alter the temperature or hydrogen-ion content of the waters so as to render such waters harmful to fish or other aquatic life. There shall be no discharge to these waters which will cause th0 hydrogen-ion concentration or "pH" of these wa- ters to fall outside of the 6.0 to 8.5 range. There shall be no dis- posal of any matter or substance that contains chemical constit- uents which are harmful to humans, animal or aquatic life 01· 264 Ch.~ PROTECTION OF WATERS 38 § 363 which adversely affect any other water use in this class. No ra- dioactive material or substance shall be discharged to these wa- ters which will raise the radio-nuclide, concentrations above the standards as established by the United States Public Health Service as being acceptable for drinking water. There shall be no disposal of sewage, industrial wastes or other wastes in such waters, except those which have received treatment for the adequate removal of waste constituents includ- ing, but not limited to, solids, color, turbidity, taste, odor or tox- ic material, such that these treated wastes will not lower the standards or alter the usages of this classification, nor shall such disposal of sewage or waste be injurious to aquatic life or render such dangerous for human consumption. Class D waters shall be assigned only where a higher water classification cannot be attained after utilizing the best practica- ble treatment or control of sewage or other wastes. Waters of this class may be used for power generation, navigation and in- dustrial process waters after adequate treatment. Dissolved ox- ygen of these waters shall not be less than 2.0 parts per million. The numbers of coliform bacteria allowed in these waters shall be only those amounts which will not, in the determination of the board, indicate a condition harmful to the public health or impair any usages ascribed to this classification. · These waters shall be free from sludge deposits, solid refuse and floating solids such as oils, grease or scum. There shall be no disposal of any matter or substance in these waters which imparts color, turbidity, taste or odor which would impair the usages ascribed to this classification, nor shall such matter or substance alter the temperature or hydrogen-ion concentration of the waters to impair the usages of this classification. There shall be no disposal of any matter or substance that contains chemical constituents which are harmful to humans or which adversely affect any other water use in this class. No radioac- tive matter or substance shall be permitted in these waters which would be harmful to humans, animal or aquatic life and there shall be no disposal of any matter or substance which would result in radio-nuclide concentrations in edible fish or oth- er aquatic life thereby rendering them dangerous for human consumption. There shall be no disposal of sewage, industrial wastes or other wastes in such waters, except those which have received treatment for the adequate removal of waste constituents includ- ing, but not limited to, solids, color, turbidity, taste, odor or tox- ic material, such that these treated wastes will not lower the standards or alter the usages of this classification. Treated 265 38 § 363 WATERS AND NAVIGATION Title 38 wastes discharging to these waters shall not create a public nui- sance as defined in Title 17, section 2802, by the creation of odor-producing sludge banks and deposits or other nuisance con- ditions. With respect to all classifications hereinbefore set forth, the board may take such actions as may be appropriate for the best interest of the public, when it finds that any such classification is temporarily lowered due to abnormal conditions of tempera- ture or stream flow. R.S.1954, c. 79, § 2; 1955, c. 425, § 5; 1959, C. 295, § 2; 1961, c. 305, § 3; 1963, C. 274, § 1; 1967, C. 475, § 4; 1969, C. 431, §§ 1, 2; 1971, c. 461, § 2; 1971, c. 618, § 12; 1973, c. 450, §§ 5, 6; 1973, c. 788, § 207, eff. April 1, 1974; 1977, c. 373, §§ 1 to 5. H lstorical Note 'l'his • section, as it originally a1>- pcmrccl in the 100.J. Ho\'ision, road; "'l'he commissioi1 shall hayc .J. :-;ta11- clarcl;;_ for the cla:-;sification of fresh surface waters. "Class A shall lie the highe:-;t clm,- sification ancl shall lie of :·rnch quali- ty that it ca11 lie m,ed for bathiug and for public water sup1ilies after diHi11fection, a11<1 the diHH()]V()(l OX.\'/1;<'1l coute11t of i-:11ch waters i-:hall 11ot be le;;s tha11 7ri% :-;aturation and contain 11ot more tliau 100 coliforn1 hacleria pm· 100 milliliters. '"!'here shall he no dii-:clrnrgc of sewaue 01· othet• wai-:tes iuto Wal.I'!' of tlliH classificaliou auu no de110:-;iti-: of such material ou the lmnk:-; of ;;uch waters in such a mmme1· that traus- fer of tho material into the waters i,; likely, Such wate1·s may lie used for log drivi11g or other conunercial ]JUI"· . poses which will not lower its classi- fication. "Cl:u,s H, the 2nd hiµ;hest clasi-:ifi- cation, shall b(i divided iuto !! dei-:ig- nateu g1·oup:-; ai, B-1 all(! B-:.!. "B-1. \\'atcrs of I.Id:-; class i-:hall be considered the higher qualiLy of the Clm;s ll group nil(\ :-;hall Ile ac- ceptal.Jle for rccreatio11al pu rpoi-:es auu after a<lcqualc t1'l'atuie11t for 11:-;e as a J)otahle wal(!l' supply. 'l'he dis- solved oxygen of :-;11ch water:-; :-;hall be not less than 75% of saturation and contain 110 more than 300 coli- form bacteria per 100 milliliters. '"!'here shall be 110 <1is]losal of sew- age or industrial wast.cs in :-;uch wa- tors except U10se which have received adc<1u:tte treatment to prevent lower- ing of the ;.;tandardi-: for this cla:-;i-:ifi- cation, nor shall such clh;posal of sewage or waste be l!IJ11rio11,; to aquatic life or render :mch tlange1·ous for l111man COllS\llllJltiOll. "B-2. \Yater:.; of tlds elm,;:-; shall lle acce11table for rec1·eatio11al 1.Jo11t- i11g, fishing, imlui-:tl'ial aml put.al.Jle wate1· i-:upplics a[tl•r a<lequale troat- rnc11t. 'l'lw dissolv<•<l ox:-'g<'ll or sueh waters shall 11ot. \l(! k:-;s lhau 00 1;{, of sat11rat.io11 and contain 110 nwre thau 1,000 coliforn1 lmctel'ia 1ior 100 milli- liters. "'l'hcre :-;hall 110 110 <lisvosal of sew- age or iudusLrial waste in :-rncl1 wa- L<'l'H to lower it,; <:lns:-dl'ie.1l:io11 uor :-;hall such di:-;posal of sewag<! 01· waste be iujnrious to aqnalic life or, danµ;crons for lmm:m comn1mptiou. "Class C, the 3l'd highest da:-;sifica- tion, shall he of such a qnality as lo be 1mtisfacto1·y for recreational boat- ing, fishing an<l other uses cXCL'Jlt potable wat.Pr snpplie,-; a1HI swim- n1i111-(, uulPHH adcquat.dy t.r,•:it.<'d t.o meet 1:,ta11darll:-;, "\Vaters of tlli,~ clai-:,'4it'ieatio11 i-:h:1ll I.le free 1'ro111 se1m1:,:, sliel,i-:, odo1·,-; alHI objectiouable floatiug solills, au<I ,;hall ll<! i'rPc f1·ou1 clwmicals aud ol h- (!L' co1Hlitiou:-; iuimi!!al to aq11at.ic lil'e. 'l'hc di,;olvP<I oxyµ;eu COllt:Pllt of Hll<!ll watern :-;hall uot. lie le:-;:-; l.111111 G pal'ls ])er million for trnnt anti 1:,alu1011 wa- ters. nnd uot less thau •1 1mrts ])el' million for 11011-trout and 11011-:-;al111011 wntern. "'l'he commission may t.alw :-;11eh action as may he amn·opriale fol' t.11<! lJest interest:-; of (.he 11uhlic wlH'll it. 266 Ch. 3 PROTECTION OF WATERS 38 § 363 1'111ds Ilia!. H '<:' r,las.-;ificallo11 Is I.Pill· ))Ot'Hl'ily lowered due to ahuormal comlitions of tcrnpC'rat11re and st1·enm J'Iow for that. S<'aXOII ill\'()l\'P(I. "Class D water,;, the lowext clm;;;i- fication, ;;hall be co11;;iclered a;; pri- marily devoted to the transportation of xewage and in<lw,trial wa;;tex withont. causing a pnhlic nni;;a11ce ax dt-fi11P<l i11 Title 17, xPetion :!802, hy the crPat ion of odor-p'.'<Hl11ci11g sl11<lge hankH Hll(l (lppositx or other lllliS,lllC(' co11<1itio11 ancl snch waters shall con- tain clixsol\'e<l oxyge11 at all times. "During a J)eriocl of temporary re- d11ction in tll<' 1Ji14sol\'<•<l oxygen con- tent in this class water, d11e to ah- 11ormal conclitions of ternpC'rat11re or stream flow for the particular season involv<id, the commission, 111·0\·idt'<l a nniHance conclit.ion has not thpn hPPII cr<'al.P<I ill Sl1< 0h wat<•r a!l{l ill I.he opinion of the commiHsion is not like- ly t.o ])p r•rpal.<•<I during s11cli Sl'HSOII, Hhall lakl' 110 act.ion lo reduce tl1e amount of pollution from any so11rce whieh i:-; allowed in :-;uch cla:-;:-; waler under llOl'llllll COlHlitious. "\\'it.h l'!"SJ)PCt to '(" all(l 'J)' cla;;:-;i- t'i<:at.ious, l.111• 1111111IH!I' of coliform bacteria or ·amounts of toxic wastes or clwmi<•alx <lischargPrl into Haid wa- ters shall be, only those m11ou11ts which will not, in the determination of the co111111i:-;siou, he harmful to the public health." '!'he 1!lG7 a11ie1Hl11wut rPJ)t•alt'd and replaced this section to n'ad: "'l'he commission shall have 4 ,;;tan- clards for the classification of frci<h surface wnters. "Olm;;; A i-hall he the highest clns• sification a1Hl shall he of such quali- ty that it can be used for recrention- al purposes, including hathiug, 1111d for public wate1· i<11pplies after di:-;- infectiou. 'l'hc cli;;solved oxyge11 co11- tcnt of such watprs ;;hall not he less than 7ri% :-;at11ration or as naturally occurs, an<l contain 11ot more tha11 100 coliform lmcteria per 100 millili- ters. "'.l'IH'se wa t <'rs shall he frc<' from sludge de1io:-;it;,:, :-;olid refuse and floating soli<ls such as oil;;, grensc or RClllll, '.l'hPrP ;;lull! he llO tllspOHHI ol' any rnattPr of :-;uhstaucc in these Wll• ters wl1ich woulcl impart color, tur- bidity, tm;te or odor other than that which naturally occurH in said wa- ters, nor shall such matter or sub- slall(~(' all.( 0 1' I.lie l.('llliH'ralurc or hy- clroge11-io11 concentration of thei;e wa- t0r:-; or cont'a i II clw111ical ro11:-;t.it11cnts which would lw harmful or offensive to h11111a11H or which would he harm- ful to nnimnl or aquatic life. No ra- clioactiYe matter or :-;uh,;tance shall he permitted in these water;; other than that occuning from natural phcno11H•11n. "There shall be no discharge of Hl'wage or othPr wasteH into water of this cl:rnsificntion and 110 deposits of such mat('I'ial 011 ·the banks of such wnterH iu such a manner that traus- t'Pr of th(• 111at<•1·ial into the watpr:-; i:-; likely. Huch waters may he u;;ecl for log driving or other eouunercinl 1iur- pos0s which will not lower its classi- fication. "(;lass B, the 2111] highpst (']asHifi- cal io11, shall h(! di vidt-d into :! dcsig- nat<•d gro11p:-; as B-1 and H-2. "11-1. \Val.<•1·:-; of I Iii;; <'la;;;; .~11:dl lH) consitlered the higher quality of the Clas;; B group nnd shall he nc- C<']lt:able for recl'l'at:ional purposes, in- cluding bathing, for use as potable \\';[(pr H11ppl,1· aft·,p1• a<l<'l)llal<' l'.l'Pal.- lll<'nt and for a fish and wildlife hal1- itat. 'l'he <lissol\·ecl oxygen of such waters sliall h<• not lexs tha11 7i"i% of ;;aturatio11, s11hject, ho\\'e\·e1·, to nor- mal naturnl Yariation:-;, and not lr.s;; than G part;; per million at any time and coutain no more thnn 300 eoli- for111 hactcria JH'r 100 milliliter:-;, "'l'hese waters shall be free from sludge depo;;its, solid refuse and 1 loatiug solids H11Ch HK oils, grease or scum. '!'here shall he 1IO disposal of nny rnntter or ,rnllstance in these wa- ter;; whieh imparts color, t.11rhidity, taste or odor whi_cll woul<l impair the ui,nge,; ascribe(] to this classification nor shall ;;uch matter or substance alter the temperature or liytlroge11- lon co11ccntratio11 of tiles!! water;; so as to render ;;uch waters harmful to fo,h or other aquatic life. '!'here i;hnll he 110 disposal of any matter or Huhstnncc that contnirn, chemicnl con- :-;lit11<•11ts which arc harmful to hu- man,;, animal or aquatic life or which a<lvernely affect any other wa- 1:!'I' 11s<' i11 tlil:-; <•l11si-. No rnclionetive 111nt.lcr or s11h:-;taucc shall he pennit- te<I in these water;; which would be harmful to humans, animal or aquat- ic life, and there shall be no rJisposnl of any matter or substance which 267 38 § 363 WATERS AND NAVIGATION Title 38 wonl(l result in rndio-nnclide coucen- trnl'ious in edible fo;ll or other aquat- ic life thereby renderiug them tla11- gerom; for lnuna11 co11:;uu1ptio11. 'l'he:;e water:; shall be free of auy matter or substance which niter:,; tlw co1nposition <>f boLlom f.1111111, whicl1 adversely affects the physical 01· clwmicnl nature of hot.to1n materinl, or which interferes with the pro1mga- tion of fo;h, "'l'here shall be no di:-;po,ml ol' sew- age, indusfrial waste:-; or olht>I' wastes in such water:;, ('xcept tho:-c .which havo receive(! trnafrnPnt for the adequate rPmoval of wa,;te eo11- stituents including, lrn t uot limited to, solids, color, turbidit;v, taste, odor 01· toxic material, such that tl1e:;e treated wastes will not lowe1· the standards or niter the usage;; of tlii:-; classification, nor r-shall 1,rnch (fo;po;;nl of i-ewa;:-e or wa:;te he i11jnriou,-; to a<1uatic life or rell<ll•r such da11gero11,-; for human conSlllllJltion. "B-2. \\'ater;; of this ela:ss slwll be acceptable for rec re a I io11al 1n11·- pose:-; i11cl11cli11g baUii11g, for i11du,-;l ri- al a11<1 polahle WHl<'I' .-.:11pplies ai'l('l' adequate treatment, a11<l for a fi,-;11 a1l(J wil<llife habitat. 'l'li\' dissoh·(•d oxygen of :such waten; ,-;hall not bl! h>:-;s than HO% of saturatiou, s11hjccl, l10w1•\'t!I', lo 1101·mal 11at111·al ,·arin- tiorn;, am! 111it ll'HS (11:111 ::, J)lll'lS JWI' million at auy liuw, aud contain 110 more than 1,000 coliform bacteria Jll'l' 100 milliliters, "'l'he,'-;f~ ,vat:<.~l'K Hliall l)e f1•t 10 fJ'o1n Hlmlgo <.lepo.-;its, ;;oli<l refu,-;e au<l floating solid,-; ,-;11<'11 a,-; oil,-;, grease 01· sc11111. 'l'h(•1·e shall lw 110 disposal of any mat.tel' or ,-;11hsta11c<! in Ll1Ps1> wa- ter,-; which imJHu'l:H colo1·, L11rbidily, laHte or odor which wo11ld impair the rnmge;; a,;crihe(l to this clas;;ifica(.io11, ll0l' shall such matter or sul>stauce alter the temperature 01· l!ydrogeu- ion coucentration of the water,; :so as to render such waters llannful to fish or other aqunlie Iii\>. 'l'he1·c :shall li(! 110 di:-;po:-;al ol' a11y matter 01· ,mbstance that contains chemical co11- stituents which are hurmful to Im- mans, animal or aquatic life, or which a<lversely affcet llll.Y other wa- ler use in this clm,8. No ra<lioactive matter or substance sl1all be JJerrnit- ted in these wawr,; which would lie harmful to humam:, animal or a(Juat• ie life, auu there ,;hall be no <li.-;po8al of anr matter or sub,;tance which \\'Ouhl result in ra<lio-nucli<le concen- tration:-; in eclillle fo;ll or allier aquat- ic life thcrehy re11del'i11g thl'!ll dan- gerous for IIUllHlll conHUlllJ)tion. 'l'lwse wate1•,; shall be free of 1111.v matter cir sull:-tanc(i which alt('l'H the cmnpo,;ition of hottoJU fauna, which n<1,·e1•,.;ely affects tl1e physical 01· chemical nature of llott<llll niaterial, or which i11terfet•es with the JJ1'0Jiagn- t ion of fo;h. "'l'here ;;hall he no <lh;posal of sew- age, industrial wm;teH or other wm,tes iu ,mch wntP1•:-; (:xccpt tlw,;(! which hn\'e 1·eceive(! treat111P11t for the aclcquate removal of wa,-;te con- :-;litnents inclu<ling, but not limitecl to, solids, color, turbidity, taste, 0<101· or toxic material, such that these treated wastes will not lower the staudar<ls or alter the m;ages of thiH clm.;:,;ificution, nor ,;hall ;;uch di;;posnl of ,;ewag<• 01· wa,-;le lie injurious to aquatic life or render such dangerous for human consumption. "ClHs:; 0 waters, the :Jr(! higl1est classification, shall be of sneh a quali- 1 y as to Im :sal.i,;!'actol'y l'o!' l'(•c1·,·u- tio11al hontiug am! fishing, l'or a l'iHh a11<l wil<llil't' habitat 1111<1 for otlH!l' 11,.;ps ex(•epL polal.Jle water :-;uvplhi:-; an<! :-wimmi11g, Ulllt.'SS such walel'S HI'(' a<l<•q11at°l'l,\' IT(•alPd. "The <li,-;,-;oh·ed oxygen content of ,-;11(']1 wat.er:-; ,-;hall 11ot he lc,-;s thau ii ))Hl'ts J>er million for trout an<l salm- on water:.;, sul.Jject, however, to nor- rn11l 11nt111•nl vn1·intion,;, all(\ 11ot !es,; t.han 4 J)art;; per millio11 for nou- tnrnt an<l non-salmon waters, suliject, hoWt'Vt>r, to uor11ial 11at.111·11I ,·:1 ria- l iollS, 'l'lw ll\lllliJCr:-; or colifol'lll liac- l('l'ia allowed iu thm;e waters ,-;hall il(i only those Hlll01lllli:! wliil'h will 11ot, ill thn (lelel'!llillation or the COJlllliiH- siou, indicate a condition hal'mful to the public health or impair any 11sages a;;cribed to lhi;,; clas,;ificaLiou. '"l'hese waters shall he free frorn :,;ludge tleposit;;, ;;olhl refuse HIHl floating s;olith; ,-;11<'h as oil:-;, gnias<• 1J1' SClllll. 'l'here slrnll be llO disposal of nuy matter 01· sub:-;tance in these wa- ters• which imparts color, turbidity, t:u;te 01· odor which woul<i impHir t.he 11,;nges ascribed to thi,; cla:ssification, 11or shall :;nch matter or ;;uhsta11ce a1Le1· the temperature 01· hydrogeH- iou content of the water:-; :-;o as to render such wateri-; hnnuful to fii-;h 268 Ch. 3 PROTECTION OF WATERS 38 § 363 or other IHJnatic life>. 'l'here ;;hall he no disposal of any mnU-PI" or s11h- stancc that: co11t.ains chemical eom,tit- 11Pnts which are harmful to human,;, animal or aquatic life or which ad- Vl'rsely aff('Ct: an~· other wntPr 11i-;e in this class. No raclioactive mattpr 01· s11hst·mH•(' shall he pC'l'Jllit.11'<1 ill thPS!' wat:Prs which \\'0111<1 he har111f11I to hnmau:.;. animal or aq11atic life and therci shall he no <li:.;posal of any mattPr or suhstancc which wo11lcl re- ,rnlt in rn<lio-m1clide coneentration:.; in e<lihln fish or other aquatic lifl' thereby rendering them dangeronH for l111man co11,·mn1ptio11. "'1.'here :.;hall he no diHposal of sew- aµ;P, induHt.rial ,vnste:-,; or other wast<'s in such waters, except tlw:;e which have received treatment for the adequate removal of waste con- :.;tit11P11ts in(']ll(ling-, hnt not limit.e<l to, solids, ('o]or, t11rhidity, last<•, odor or t'oxic 111at:Prial, s11<·h that thPsP t.r<•Hl<'d wnsl.<',; will not. low1•r th<\ standar<li,; or alter the usages of thiH classification, nor shall snch db;posal of :-;ewa;.:e or waste IJe injurious to aquatic life or render snch dnngerons fol' hlllllllll (•()JlSlllllption. "Ulmis D waters shall !.Jc m;signcd only where n higher water classifica- tion ca1111ot he attailled after utiliz· ing the best prncticable treatment or control or sewage 01· other wastes, Waters of this class may be used for power generation, navigation and in- dustrial process waters after ade- quate treatment. Dissolved oxygen of these wnters shall not be less than 2.0 parts per million, subject, how- ever, to normal natural variations, an(! shall always !.Jc present. 'l'he numbers of coliform bacteria allowed in the;;c wators shall he only those amounts which will not, in the deter• mination of the commission, indicate a condition harmful to the public health or impair any usages ascribed to this clas,dfication. '"l'hcsc water:-; shall be free from sludge deposits, i,;olid reflli-;c an<! flontiug solids Buch as oilH, grea,,e or scum. 'l'hpro ,;hnll h<' no disposal of lilly 111aU1•r or SllllSI.Hll('(' ill t.111•><(' \\'H· ten; which impart:; color, turbidity, taste Ol' odor which would impair the rn,ages ascribed to this clnsRification, nor shall such matter or ;;ubstance alter the tl'lllJH'1·at11 re or hydrogen- ion co11ce11tration of tlte water8 to impair the 11::<ngrs of this clas;;ificn- t ion. 'l'li<'l"<' shill! ll<' 110 <lispos:d or any matt.er or :-mhstauce that con- tain:.; chemical eonstitneut,; which arp harmful to hnmaus or which ndverf;e- ly aff0ct any othl'r water 11:.;c in this <~lass. No rntlioacti\'e.mattcr or :.;uh- stancP :.;hnll hi' 111•rmit.l'Pd in thc•s1• waters whkh would he harmful to h11mans, animal or aquatic life ancl tlrere shall he no dispo:.;al of n11y matter or snb:-tance which would re- :.;ult in r:ulio-nncli<lP conccntrntions i11 eclihle J'ish or ot.lwr a<Jnatic Jifp thereby r011<10ring- thPm (]aug-prons for human c011s11n1pUon. "'l'herc :.;hall he 110 <llspo:.;al of r.;ew- ag-P, indnstTial \\"H.~l:l'S or oth<ir waste,, in such water:,;, except thm;e which have received treatment for the ncleq11at0 removal of waste con- HtitucntH incln<ling-, hut not limited to, solid:.;, color, tnl'liidily, taste, odor or toxic matPrial, snch that thl'sl' trl'at.<•d wnst.1.•s will 11ot lower the standard;; or alter the usages of this clas;;ifiration. Treated wai;tcs dis- charging- to the:-w waters shall not cr<>ate a public nnisance as defined ill 'l'itle 17, H<'<"t.ioll 2802, hy the crP:t· tiou of o<lor-prodncing sludge banks and clcposits or other nuisance comli- tion,;, ""'ith ref;pcct to all clas;;ifications hen\illht•fon! S<'t forth, the CO!lllllis- siou mn~• take snch actions a;; may be appropriate for the best intere,;t of the public, when it finds that any snch classification is temporarily lowcre<I due to nbnormnl conditions of tcmp0rature or stream flow." 'l'he 1960 nmenclment, in the sixth paragraph, substituted "water con- tact recrcatiou" for "bathing-", delet- ed "subject, however, to 11ormal natn- ral vnrintions", deleted "and contains no more than 300 coliform bacteria per 100 milliliters", added "The total coliform bacteria count is not to ex- ceed ;300 per 100 milliliters. The fc. cal coliform hneteria :;hall not exceed GO per 100 milliliters." and added the t.hir<l :w11t1>11<•p; iu the seventh pnra- grnpll, s11hstit11ted "No radioactive rnaUer or Hllbstancei; ;.;!tall be dis• charg-e<l to these waters which will rai:;e the radio-nnclide concentrations above the ,;t:uulards ns established hy the lJuite<l ~tates l'uhlic Health 8ervice ns being accevtable for drink- 269 38 § 363 WATERS AND NAVIGATION Title 38 ing water.'' for the former fourth sentence; in the ninth paragraph, substitute<! "wntPJ' co11tn<'t nicrPn- tion" for "bathing", deleted "sulljed, lloweyer, to nornutl natural va ria- tions" cloleted "and contain 110 111orP than ] ,000 coliform hacl"Pria pPI' 100 milliliters", and adde<l "The total col- iform bacteria is 11ot to ex<·<•<•cl 1,000 Pl'l' 100 milliliters. 'l'he fecal coli- 1'orm hactcria h; not to <'XCP<'d ~00 pc1· 100 milliliters."; in th<• t:Pntlt paragraph, inserted the fourth seu- tcncP, nnd substituted "No nnlioa<"- tive mutter or s11b,;tauce shall h<• dis- charged to these waters which will raise the radio-nuclide concPntratious above tile standards as cstablisltetl by the U11it.cd 8tates 1'11hlic llcalth 8ervice as being acceptable for drink- ing water." for the· former fourth sentence; in the twelfth parngraph, substituted "wat<•1· coutaet rec•rPa- tion" for "swimmiui;"; in tile tl1ir- tccnth paragraph, deleted "suhjeet, hoWt'V!'r, to llOl'lll:11 llaLlll'lll \'al'ia- tions", deleted tl1e for111Pr seco11d Sl'll- tenc<', and addl•<l "In 110 event: sltall the dissolve1l oxyge11 co11l1•11L ot: s11<'11 waters lle le;;s than 4 1mrt:,; per mil- lion. 'l'he total coliform lmclerin is not to exceed G,000 per 100 millili- ters. 'l'hc fecal coliform l>actel'ia is not to exceed 1,000 per JOO millili- ters"; in the fo11rtee11tlt paragraph, inserted the third sc11tence am! irn\J- :;titutcd "No radioacti\'C material 01· substance shall he disclrnrged to theHe waters which will ·.•aise the ra- dio-11uclidc COllCClltrntio11s alJO\'t' (11(! stitll(1ards us l•stablislw1l lly the CuiL- e<l !·Hates Public llcalth Hl!l'\'ice ns hei11g acceptable for driukiug water." for the former fou1·th seulcnce; and, in the Hixteenth 1mragrnph, deletl•d "subject, however, to uormal natural variations, all([ sllall always lie present" from the third sentenee. Lawi-; l!J71, e. 4<ll, § :2, inserted "uulei-:s spl'<iifi<'ally lic1•nscd ll.Y the COllllllissio11 11po11 l'i11di111-( (h:tl. llO dl'g- rndatiou will reHult to the quality of such waters" in the firnt sentence of the fourth paragraph, and substitut- ed "if 1mch use" for "01· other com- mcrcial purposes which" in the sec- 011(1 i-;entcnce of the fourth parn- grnph. Laws HJ7l, c. GlS, § 12, :;uhstitute<l "hoal'<l" for "commission" in the first, sixteenth 111111 film! paragraph:-;, Laws 107:{, c. 4GO, § 1:i, suhstilutl'<l '"l'he dissolved oxygen contl•11t of such waters shall not lJe le:,;s than ri pal'ts per million, except in tl10:-;e cas- <'H where the board finds that Ute natural (!issolvc(! oxygen of any such llody of water falls below G JJ:ll't,; JJel' million, iu which <·aRe the board may grant a yariauce to this requirement. Iu 110 event shall the dissolved oxy- gen content of such water,; be less than -! pnrt1, per million." for the former first sentence of the se\'entll pa ragnq1h. Laws l!J73, c. 4G0, § G, ad(lcd a last pa rngraph, to read: "At Huch time as Ute Ktate applies for and receives authority to issue p<'t'ulils under the a1>p1·opriate prol'i- :-;ious of the l<'cdcral \Vatcr Pollution ( 'out rol Act, as Hlll!'IHlcd, 110 per,.;on 111a.1· serve a,; a board n1eml>er who l'('Cl'i\'CS, 01' <luring the 2 years J)l'iOI' to ltis appoi11tmt•11t has received, a siguifieant portion of his income di· n•ctly 0l' indirectly from licemm or JIPl'lnit lwhlers or apJilicants for a li- cense or J)Cl'lnit." Laws 1073, c. 788, § ~07, deleted the former last paragrnvh. 'l'he 1 fl77 ame11<lmc11t, in the HPC011d pa1·ag1·aph, :-;ubstitULP1l "~O fecal" fol' ''}()()"; in the fourth paragrn1il1, de- Jpted "unless specificall:,· liceni;ed hy tlw hoard llJJ0II fi11ding that 110 <ll'gl'll- (latiou will result to the quality of such waters", ins<!rWd "except that ex isl iug lieew,l•d diseharg(!S into ,1·;i- ler of this classificatiou will be al- lowed to continue until practical al- teruatives cxif;t, lrnt no new dis- chn rgp,; will be J)<!l'lllittP<l nl'l1•r tlte <'l'l't•d.ive date of this sl•ct.iou", aLHl deleted the forme1· lust seuteuec; aud deleted the former third sentences in the sixth, ninth and thirteenth paragraphs. Law Review Commcn.taries J~fflnent charge; a ;;tate ap1iro11ch. Ol'la1l(! K l>elogu, :!:I :\laine L.Hev. :.!ol (Hl7l). Effluent charges; a mellwd of en- fol'cing stream staudar<ls. 1H illniu<! L.Hov, :20 (1007). 270 Ch \1 I. ~ pro· it e the § gre of clu SU< thu tlw ph< chl as wr, floe sub cur Wal and mai al i1 ble for. for cou rus suri anc no imr usu Ch. 3 PROTECTION OF WATERS 38 § 3(63-A LI brary References Waters and Water Courses ~11G. c.,J.S. Waters§§ 2, 112. Notes of Decisions I. Construction Statute creating the water im- provement commis,;ion and granting it certain powers in the regulation 01' the disposal o:e industrial waste and municipal and domestic sewage is in derogation of the common law and therefore mnst be strictly com;trued. Stanton v. 'l'nrntccs of St. ,loseph'8 College (1007) :Mc., 233 A.2d 718. § 363 - A. Standards of cfassi:fication of great ponds The board shall have 2 standards for the classification of great ponds. Class GP-A shall be the highest classification and shall be of such quality that it can be used for recreational purposes, in- cluding bathing, and for public water supplies after disinfection. Such waters shall have a Secchi disk transparency of not less than 2.0 meters or as naturally occurs, and contain not more than 20 fecal coliform bacteria per 100 milliliters. Total phos- phorus concentration shall not exceed 15 parts per billion, and chlorophyll A concentration shall not exceed 8 parts per billion as measured in samples taken at or near the surface of the wa- ter. These waters shall be free from sludge deposits, solid refuse, floating so1ids, oils, grease and scum. No radioactive matter or substance shall be permitted in these waters other than that oc- curring from natural phenomena. There shall be no discharge of sewage or other wastes into waters of this classification except as provided in section 371-A and no deposits of materials on the shores or banks thereof in a manner that could permit drainage or leaching from the materi- al into the waters. Class GP-B, the 2nd highest classification, shall be accepta- ble for recreational purposes, including water contact recreation, for use as potable water supply after adequate treatment, and for a fish and wildlife habitat. The fecal coliform bacteria count is not to exceed 60 per 100 milliliters. The total phospho- rus concentration shall not exceed 50 parts per billion as mea- sured in samples taken at or near the surface of the water. These waters shall be free from sludge deposits, solid refuse and floating solids, such as oils, grease or scum. There shall be no disposal of any matter or substance in these waters which imparts color, turbidity, taste or odor which would impair the usages ascribed to this classification nor shall such matter or 271 38 § 363-A WATERS AND NAVIGATION Title 38 substance alter the temperature or hydrogen-ion concentration of these waters so as to render such waters harmful to fish or other aquatic life. There shall be no discharge to these waters which will cause the "pH" of these waters to fall outside of the 5.5 to 8.5 range. There shall be no disposal of any substance that contains chemical constituents which are harmful to lm- mans, animals or aquatic life or which adversely affect any oth- er water use in this class. No radioactive matter or substances shall be discharged to these waters which will raise the radio- nuclide concentrations above the standards established by the United States Public Health Service as being acceptable for drinking water. These waters shall be free of any matter or substance which alters the composition of bottom fauna, which adversely affects the physical or chemical nature of bottom ma- terial, or which interferes with the propagation of fish. There shall be no disposal of sewage, industrial wastes or other wastes in such waters, except those which have received treatment for the adequate removal of waste constituents, includ- ing, but not limited to, solids, color, turbidity, taste, odor and toxic material, such that these treated wastes will not cause any violation of water quality standards or alter the usages of this classification, nor shall such disposal of sewage or wast~ be in- jurious to aquatic life or cause it to be dangerous for human con- sumption. There shall be no additional discharge of phosphorus to waters of this classification, which discharge does not employ the best available technology for phosphorus removal. 1977, c. 373, § 6. Library References Health and I<.;uviroumeut e::,:,~8. U.,J.S. He:dLh aud l~nvironrnent ~§ 01, !);~, !M, !Hi to JJ:J, 1~0, 1~7, l:IO, 1:ll, 1:\.1 to 1:18, J,j() lo ff>G. § 364. -tidal m,~ marine ,vate:rs The board shall have 5 standards for classification of tidal waters: Class SA, shall be suitable for all clean water usages, includ- ing water contact recreation, and fishing. Such waters shall be suitable for the harvesting and propagation of shellfish and for a fish and wildlife habitat. These waters shall contain not less than 6.0 parts per million of dissolved oxygen at all times. The median numbers of coliform bacteria in any series of samples representative of waters in the shellfish growing area or non- shellfish growing area shall not be in excess of 70 per 100 millil- iters, nor shall more than 10 % of the samples exceed 230 coli- form bacteria per 100 milliliters. 272