Posted on August 16, 2017 by Eric Fjelstad
The Alaska Department of Environmental Conservation (ADEC) has taken on the task of defining a process to designate so-called Outstanding National Resource Waters. These are often called “Tier 3” waters. A quick recap of the Clean Water Act’s antidegradation regulations. Under relevant EPA regulations, waters which do not meet water quality standards are classified as Tier 1 waters. Waters which meet or exceed water quality standards are classified as Tier 2 waterbodies. The best waters – Tier 3 waters – are defined by EPA in 40 CFR 131.12(a)(3) as follows:
Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.
The regime has proven controversial in Alaska because it would apparently impose a “no degradation” prohibition on new and expanded discharges. The term “degradation” is not defined in EPA’s regulations which leave open the question whether Tier 3 allows for any detectable pollutants.
The State of Alaska is blessed with an abundance of high quality waters. It also is a resource development state, and many projects occur in areas with high quality waters. Conservation groups argue that Alaska’s water resources should be protected before they are compromised through development. Development interests believe Tier 3 is just another regulatory initiative to stop projects. ADEC has struggled to implement a Tier 3 regime, finding few friends in industry and conservation corners as it works to develop a program. Amongst the questions ADEC has grappled with.
· What criteria should be employed to screen potential Tier 3 candidates? Alaska has many high quality waters and the debate has centered on whether the waterbody should be truly exceptional or unique by Alaska standards versus exceptional or unique compared to the Lower 48.
· How much information should be in the proposal? Conservation groups generally favor a streamlined proposal process. For example, a few paragraphs on why a waterbody merits Tier 3 status, along with information on the basic social and economic implications of the designation. Industry stakeholders argue that a Tier 3 designation effectively imposes a “no discharge” regime on an entire watershed and should be rigorously evaluated in a study akin to an environmental impact statement with the costs to be borne by the proponent.
· Who should make the designation? Conservation groups argue a Tier 3 decision should be made by ADEC or by an administrative commission and be reviewable in the courts. Industrial stakeholders believe a Tier 3 designation is fundamentally a political decision, comparable to establishing a state park or wildlife refuge, and should be made by elected officials in the legislative process.
· How would the “no degradation” standards work in practice? ADEC has indicated that temporary discharges with minor impacts would be permissible under Tier 3. However, ongoing discharges would be prohibited, even if the discharge complied with water quality standards at the “end of the pipe.” There are unresolved questions how Tier 3 would apply, if at all, to nonpoint sources of pollution.
· Can a Tier 3 designation be changed? There has been no clear statement from EPA on whether a Tier 3 designation could be changed. The regulatory grapevine has yielded mixed signals with some suggesting a Tier 3 designation would be permanent.
EPA’s one sentence regulation leaves much to the imagination, and stakeholders would benefit from greater clarity from EPA in its regulations. Given the open questions and the potentially significant restrictions a Tier 3 designation places on waterbodies, it is not a surprise that Alaska is struggling to define a rational Tier 3 process.