Tier II Waters Regulation

Andrew Der
March 15, 2012 — 1,832 views  
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The Anti-degradation policy (ADP) reflects U. S. EPA Clean Water Act provisions requiring States to implement the protection of the existing use and quality of its waters as determined by whatever means is appropriate at a given time with acceptable methodology.  It is more narrative than numerical and therefore can be subjective and mandates that the state’s existing water quality or designated use cannot be downgraded.  Many Maryland waters are not of that higher quality and do not often trigger this process.  However, for higher quality waters such as trout streams, viable shellfish waters or any stream noted as exceptional or outstanding by various assessment means or regulation, the ADP process is implemented for new construction by various avenues when triggered via corresponding review processes.  This frequently invokes contemporary nonpoint source best management practices including maximal stream buffering, minimizing impervious surfaces, modern water quality attenuating devices, and a potential substantial stream monitoring study.

The ADP itself is not a “permitting” process but rather is administered by comment coordination through various other permit-generating review processes requiring state water resource authorizations for construction activities – the most common ones being the Wetlands and Waterways Permit (WWP) which also includes the CWA Section 401 State Water Quality Certification (WQC) and the Maryland Waterway Construction permit as well as the NPDES discharge programs.  The MDE first adopted EPA ADP review policy and criteria in 1985 as part of its state water quality standards and was the only means then to require nonpoint source water quality management – or true stormwater quality management – at a time when none existed.  At that time resource protection was minimal and centered on public health compliance and which was clearly specified in COMAR (mostly shellfish waters and trout streams as bio-indicators of water quality), and was meant to complement NPDES point source discharge compliance of factories and WWTP.

As the ADP evolved to accommodate more ecological goals, agency and interagency stream and watershed monitoring initiatives revealed more precisely what the higher quality stream were and what needed the most protection.  By 2004, this led MDE through COMAR to divide waters into 3 Tiers of quality and levels of protection, and required that those above level I receive greater protection mechanisms.  Tier characterization is done by water and benthic stream monitoring by the MD DNR and as result had designated certain streams as Tier II by regulation.  As time and more nonpoint source water quality criteria passed, this process became somewhat superfluous in actuality since most of the front line permitting requirements today more than fill the need for the ADP such as today’s collective ESD to the MEP stormwater management, forest conservation compliance, stream setback buffer requirements to disconnect flow, wetland and waterways permitting, NPDES requirements regulating new construction and MS4 NPDES requirements regulating the retrofit of older development – not to mention the trickle down results of the looming Chesapeake Bay TMDL.

While there is little adversity to stakeholders from a potentially duplicative program and little disagreement that contemporary BMPs are necessary to offset and manage water quality, there is significant legal and regulatory discourse and disagreement on 1) when the ADP criteria apply; 2) the degree they apply; and 3) what are compliance requirements when they do apply.  The intent to provide adequate water quality management is clear as an undisputed goal of the ADP regulations.  The language also clearly defaults – and has so for many years as with Section 404 and 401 Corps of Engineers permitting - to the trigger being a direct impact to a jurisdictional Tier II water and that any subsequent ADP review needs to address the triggering impact itself rather than perceived ancillary development activities in the upland watershed around it.  The most common trigger in the past for construction was the need for a WWP since that constitutes a direct impact – or discharge – to the actual water and would also need the associated WQC.

The ADP regulations clearly affirm the use of the term “direct discharge” throughout the regulations regarding impacts to waters in its language as the trigger, yet the MDE has taken an evolving stance by policy of allowing any activity in the drainage area to a Tier II water – even if in uplands – to constitute a trigger for Tier II criteria review.  As a result, additional burdensome and questionable practices and potential stream studies above and beyond current criteria are being imposed by review process commentary even if there are no direct discharges to the Tier II water.  ADP review criteria is also now imposed by agencies through other processes even when there is no WWP or direct discharge or fill to regulated water as with comment to a local Forest Stand Delineation review process where despite avoiding all direct impacts to jurisdictional waters, the MD DNR commenting authority is imposing de facto compliance requirements of a permitting nature.

When ADP compliance is applicable, practices such as additional stream buffering and impervious surface limits may be required by policy via a permitting agency commenting process.  In addition, there is the potential for pre-, during, and post-construction stream monitoring to determine baseline and ultimate conditions to assess any potential impacts of any construction activity even if in uplands to determine if the stream can assimilate any of additional potential pollutants.  Such an analysis must include a monitoring program to characterize current stream conditions and any future changes, including biological stream survey data and benthic and fish indices of biotic integrity, as well as an analysis of ways to configure or structure the discharge to minimize the use of the assimilative capacity of the water body.  If it is determined that water quality will be diminished or no assimilative capacity remains, the applicant must provide the Department with a social and economic justification (SEJ) for lowering water quality in the Tier II stream segment.  Public participation in the antidegradation review is solicited during the permitted and SEJ process.

It is not clear as to how the assimilative capacity is determined, what constitutes an acceptable SEJ and how post construction monitoring results are to be used.  Further, the ADP regulations state that “Maryland's wetlands and waterways regulatory process, governed by the Tidal Wetlands (COMAR 26.24.01—26.24.05), Nontidal Wetlands (COMAR 26.23.01—26.23.06), and Waterway Construction (COMAR 26.17.04) regulations, satisfies the requirements of this regulation.”  This indicates that when there are impacts to jurisdictional waters, no additional process compliance is necessary should a project need to comply with WWP COMAR – or in other words ADP compliance is achieved when WWP requirements are met.  The ADP regulations do not say that in order to comply with wetlands permitting requirements, additional ADP requirements are necessary - yet additional Tier II criteria are imposed on projects undergoing a WWP review – even when there is no discharge to a Tier II water.

These unresolved and debated issues have serious ramifications given the numerous Tier II waters in some jurisdictions.  If now all upland drainage areas to the Tier II segments were included as regulatory triggers of the ADP, it could apply to vast County lands even having no water impacts and bring an inequitable and formidable degree of local federal and state land use regulation via a CWA program intended to regulate waters of the U. S. only.  Indeed the MDE has now clearly indicated via interagency project review meeting statements that they intend to “regulate” via ADP criteria all development in the watersheds and drainage areas to the Tier II waters as a matter of declaration regardless of the other criteria this activity may already be subject to.  Such an analysis could add both several years and significant additional costs to a project if not entirely prohibit it.

Andrew Der

Whitman Requardt & Associates, LLP

Andrew Der is an Associate and Director of Environmental Services at Whitman Requardt & Associates, LLP head office in Baltimore and practiced in the consulting industry since 2001 previously completing 17 years of service at the Maryland Department