Testimony in Support of HB 95 regarding National Resource Water Designation (Tier 3 Waters) to the State House Fisheries Committee
March 23, 2023

Good afternoon. My name is Leila Kimbrell, Executive Director for the Resource Development Council for Alaska (or RDC).

Briefly, for 47 years, RDC has advocated for a strong, diversified private sector in Alaska and to expand the state’s economic base through the responsible development of our natural resources. We are a statewide trade association comprised of individuals and companies from Alaska’s fishing, tourism, forestry, mining, and oil and gas industries. This includes private companies, labor organizations, Alaska Native corporations, as well as local governments and non-profit organizations. RDC collaborates with our partners and policy makers to ensure Alaska continues to have a strong and diverse economy by growing Alaska through the responsible development of our natural resources.

Thank you for the opportunity to provide invited testimony on HB 95, an act relating to the designation of state water as outstanding national resource water, also commonly referred to as “Tier 3” waters. RDC speaks in support of HB 95, which provides a clean solution to complying with EPA requirements to codify State agency policy related to Tier 3 waters for the following reasons.

Under our nation’s Clean Water Act, the EPA requires all states to have a policy against the degradation of waters and to maintain associated procedures that prohibit the lowering of water quality under three categories of water protection, the most stringent of which is Tier 3.

Tier 3 designation is for an Outstanding National Resource Water, which is described as having exceptional recreational or ecological significance. Tier 3 waters are required to be maintained to their baseline conditions, and effectively cannot have any new or expanded activities that have the potential to change the water quality in any way. This would apply even in situations where the activity meets the water standards and fully protects fish and other water uses, especially the highly regulated industries I represent.

To be clear: the Clean Water Act, combined with other federal and state policy extensively regulates how waters are managed and impacted by all user groups. Stringent water quality standards are established, baseline studies is done, extensive monitoring takes place, and action is taken to further protect waters when needed. This management already exists in Alaska.

A Tier 3 designation goes much further than our already exemplary water quality protections, without any added benefit to the environment but with added threats to economic and community activity. Specifically, any activity that has the potential to degrade a designated Tier 2 water and its tributaries could be prohibited. A designation would impact the users such as motorized vessels of any kind, residential and commercial septic systems, stormwater permits associated with road building, seafood processors, timber harvesting, and much more.

Tier 3 water designations also have the potential to become a tool for anti-development interests to block or delay resource development projects. That is evident in the five nominations currently before DEC, which specify mining, oil and gas, federal land planning, and Alaska Native Corporation lands selections as threats to certain waterbodies.

Further problematic, a Tier 3 water designation applies “to a Tier 3 water or tributary to a Tier 3 water.” This expansive designation means that it would prohibit development in entire watersheds of Alaska – essentially comparable to establishing de-facto Wilderness, akin to a national park or other expansive conservation area. For this reason, we believe the authority to designate a Tier 3 water should therefore lie solely with representatives of Alaskans - the Alaska Legislature, similar to Congress having the authority to designate federal areas as national parks or Wilderness.

Because of the watershed-wide land and water impacts of a Tier 3 designation, it is no different than the impacts of the 12 million acres of legislatively-designated State refuges, sanctuaries, critical habitat areas, ranges, special management areas, forests, parks, recreation areas, marine sanctuaries etc. –All of these designations are made by the Legislature. Just as the Legislature made those designation, so too should the Legislature make Tier 3 designations and not the EPA.

To do so, the State needs a policy and statutory authority in place. The Alaska Department of Environmental Conservation existing policy agrees that Tier 3 designations should be made by the Legislature. Former DEC Commissioner Larry Hartig, in the Walker/Mallot Administration, submitted a letter to the Senate in November 2018:

“DEC recently updated its internal guidance to advise DEC employees who might receive a nomination of a water for Tier 3 designation on how to deal with that nomination. This guidance provides that the current process for nominating Tier 3 waters involves proposing the introduction of legislation to make the designation. Any such requests would need to go to a member or committee of the Legislature to be considered for introduction. DEC has reviewed this guidance with EPA and they confirmed what we have put in place satisfies Clean Water Act requirements for antidegradation implementation.”

In short, HB 95 is a housekeeping measure to implement and codify existing DEC policy. Enactment would meet EPA’s Tier 3 designation process requirement and provide process certainty to the public.

We believe that, given the significant, adverse, watershed-wide land and water use impacts and socio-economic impacts of Tier 3 designation, a Tier 3 water should be designated ONLY by a vote of the Legislature.

This is consistent with the Alaska Constitution, the existing process for setting aside areas of State land and water from development, and existing DEC policy. For these reasons, we urge you to move this bill from committee and support it to statute.

Thank you for the opportunity to testify today in support of HB 95.