Options for Tier 3 Designation Authority

OPTION 1 for Tier 3 Designation Authority

The Legislature would be the final designating authority, via a statutory revision. This option allows for two proposed paths:

  1. The entire nomination and designation process is specified in statute, including criteria, required nomination information, vetting procedure, public process, etc.; OR
  2. The statute specifies final legislative designation authority and directs DEC to develop regulations specifying the nomination process, including criteria, required nomination information, vetting procedure, public process, etc.

Questions:

  • What are the advantages and disadvantages to using a legislative process for designating Tier 3 waters?
  • Is it more appropriate for the detailed nomination process to reside in statute or regulation?

OPTION 2 for Tier 3 Designation Authority

A board would be formed.

As recommended by the 2011-12 Antidegradation Workgroup, a board of representatives would evaluate nominations.

This option allows for at least three proposed designating authority paths:

  1. The Tier 3 Board would be the final designation authority.
  2. The Tier 3 Board would review, vet, and submit a recommendation to the Legislature which has final designation authority.
  3. The Tier 3 Board would review, vet, and submit a recommendation to the Governor who has final designation authority.

Questions:

  • Should this be a permanent or rolling board? For example, a permanent board of representatives established for all Tier 3 nominations or a rolling board with possibly different representatives specific to each individual nomination?

  • Who should make up the Tier 3 Board?
    • Agency representation, e.g. from DNR, DEC, ADF&G, DCCED, and DOT
    • Representatives from local government
    • Public, tribal, stakeholder representation, e.g. local tribal entities, fishing groups, mining groups, other
    • Combination of above
  • Should the board be a paid or volunteer board? Would the need for volunteers to pay their way be prohibitive to some potentially participating organizations? How would a paid board be funded?

OPTION 3 for Tier 3 Designation Authority

DEC or the Governor is the final designating authority. DEC establishes a process in regulation that includes the nomination criteria, a nomination process, DEC’s vetting process of nominations, and a public process for evaluating DEC’s draft designation decision. A decision would be finalized either by DEC or DEC would make a recommendation to the Governor for final action.

Questions:

  • Does DEC have the appropriate levels of expertise to weigh ecological, economic, or recreational factors in its decisions?
  • Is this option feasible, based on Department resources? How should the Department prioritize what nominations to work on if it couldn’t keep up with them as they came in?
  • This may further delay evaluation of Tier 3 nomination until final regulations are promulgated and resources allocated. How should this be accounted for?

Hybrid and ALTERNATIVE Options?

As you think about what process for nominating and designating Tier 3 waters will work best for the state of Alaska over time, you might want to:

  • Select what you like best about the three options described above and create a “hybrid” option
  • Look at what other states have done
  • Think about other key provisions that could be added to make an option better; examples might include:
    • Should any decision by DEC or the board, if either is to make the decision on a designation, have a delayed effective date to give the Legislature the opportunity to weigh in? If there is a risk of new discharges of pollution being authorized before the Tier 3 designation can take effect, how should DEC manage the water in the interim?
    • Should DEC develop any levels of protection between Tier 2 and 3 that could be considered as alternative options when considering a Tier 3 nomination?
    • If the vetting process is to be done by DEC with assistance from other state agencies, should it include an alternatives analysis, for example, considering whether the nominated water could be adequately protected by putting it into a refuge, or by the Department of Natural Resources or other land owner using their authorities to restrict uses of adjoining land?