Outstanding Waters

Alaska's Antidegradation Policy (or lack thereof...)


A twenty-year battle to force Alaska to follow a fundamental requirement of the Clean Water Act may finally be at hand...

The federal Clean Water Act requires states to identify their waters as Tier 1 (impaired for one or more parameters that prevents the attainment of a beneficial use,) Tier 2 (cleaner than the minimal state water quality standards and which may therefore be degraded by new discharge permit authorizations,) and Tier 3 a.k.a. Outstanding National Resource Waters (ONRW,) which due to their ecological, economic or recreational importance must be maintained at their present level of water quality.  Tier 3 waters allow all activities existing at the time of designation to continue, but new or expanded discharges are prohibited if they would lead to a degradation of water quality.  Antidegradation Policy (ADP) reviews are triggered when a discharger applies for a permit to discharge through a "discrete conveyance" (a pipe) into a water of the State.

Remarkably, despite having more highly productive and pristine waters than the rest of the country combined, Alaska has no ONRW,  because Alaska is one of a handful of states that has never adopted ADP implementation procedures to apply the three tier outline described above.  This legal deficiency has been known for many years; Alaska has for decades assured, and reassured EPA and the public they are trying to remedy the regulatory deficiency.  

The fact is it shouldn't be that hard.  Rather than worry about reinventing the wheel, the Administration could simply look to the rules adopted in other states for workable language.   

This deficiency is directly impacting our ability to protect the Chilkat River, home to the Chilkat Bald Eagle Preserve.  ACWA worked with the Tlingit Village of Klukwan to submit a nomination for Tier 3-ONRW status in the fall of 2015.  The nomination wentnowhere because Alaska has no mechanism for evaluating an ONRW nomination.  As a result, the State has effectively denied every ONRW designation petition, ever submitted, including ours.

Individual citizens, Tribes, and fishing and tourism organizations interested in protecting the Chilkat River threatened by the "Palmer Project/Constantine Mine," the Tribal Council in Yakutat trying to save the Yakutat Forelands, and a number of Tribes and Villages in S.W. Alaska hoping to save the Koktuli River from the proposed  Pebble Mine have been working for years to get the Alaska Department of Environmental Conservation (DEC) to adopt the needed ONRW evaluation procedure.  In the winter of 2016, Governor Walker sponsored bills to require Legislative designation of any Tier 3 water, as a means of closing part of the regulatory gap.  However, a designation path through the Legislature would effectively ensure every nomination would be dead on arrival, so we opposed the bills.  The bills died in part because of public pressure, but the real nail in the coffin came from proponents for the mining industry, who forced so many outrageous amendments onto the bills the Governor himself asked to have them pulled before a floor vote.

DEC has stated it will have a draft ADP implementation rule published during the summer of 2016.  ACWA staff have been engaged on the ADP issue for decades, and will continue to dog the process as it moves forward.  We need a rule that allows the agency to make ONRW designations without Legislative approval, based on the needs of the ecosystem and the local communities that depend upon having clean, productive waters.