Tier I Antidegradation Policy: The Need for Implementation Methods

EPA: “[Tier I is] the absolute floor of water quality” providing “a minimum level of protection” to all waters.

Oregon: “The purpose of the Antidegradation Policy is . . . to protect, maintain, and enhance existing surface water quality to ensure

the full protection of all existing beneficial uses.”

What Oregon Has What Oregon Does Not Have

(LOWER QUALITY THAN CRITERIA) Tier I goal: to maintain or lower pollution levels

existing ,,,, Post-TMDL Ø ,,,, Pre-TMDL Ú ,,,, Narrative criteria Û

load  Implementation  No Actions  No 303(d) or TMDL = No Actions 

Actions

QL* - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

,,,, No 303(d) =

  No TMDL =

No Actions Ü

criterion

 Tier II review for Ù  35 years of  Nonpoint Sources

existing ,,,, NPDES & §401 Cert. ,,,, degradation ,,,, No Tier II Review Þ

load



,,,, 1975 Ý

(HIGHER QUALITY THAN CRITERIA) Tier I & II goals: to prevent or restrict pollution increases

* QL=quantitation limit. Similar to a detection limit, the QLis the level at which

 sampling technology can quantify toxics. 
June 7, 2010

To: DEQ Staff

From: Nina Bell, Northwest Environmental Advocates

Re: Using Tier I Antidegradation Policy Requirements to Address Gaps in Water

Quality Protection for Oregon’s Waters

DEQ staff prepared a memorandum concerning “Authorities Related to Nonpoint (Non-NPDES)

Source Pollution Prevention and Control,” November 17, 2009, as part of the ongoing triennial

review of Oregon’s human health criteria for toxics. In that memo, DEQ concluded that: (1)

DEQ has “extremely broad” authority to regulate all pollution sources; (2) “the EQC hasn’t

provided to DEQ the same tools for control of nonpoint sources of pollution as for point

sources”; and (3) TMDLs are the “primary mechanism” for regulating nonpoint source pollution. 

Despite these findings, the staff has rejected nearly all proposals to use the antidegradation policy

provisions of Oregon’s water quality standards as a mechanism to effect nonpoint source controls

outside the context of TMDLs. This memo describes the gaps in the policy and how rulemaking

to address those gaps would provide the Commission with a path to achieving greater nonpoint

source controls of toxics and other pollutants.

The federally-mandated antidegradation policy and implementation methods (together

“antidegradation requirements”) consist of three tiers of protection. The discussion below is

limited to Tier I (protection of existing uses) and Tier II (protection of high quality water), and

omits Tier III (protection of outstanding waters). Although some aspects of Tier II are discussed

and addressed, the recommended approach is actually limited to Tier I. Federal rules require that

states “identify the methods for implementing” the antidegradation policy. Addressing this

requirement in the context of Tier I protections is the subject of this memo.

Tier I protection in federal rules requires that “[e]xisting instream water uses and the level of

water quality necessary to protect the existing uses shall be maintained and protected.” EPA

guidance notes Tier I protections constitute “the absolute floor of water quality” providing “a

minimum level of protection to all waters.” Oregon’s Tier I protections are “to protect, maintain,

and enhance existing surface water quality to ensure the full protection of all existing beneficial

uses.” Because Tier I applies to all waters, it can be used to protect higher quality waters as well

as to improve lower quality waters. 

The attached diagram demonstrates the benefits of adopting clear and specific antidegradation

requirements for nonpoint sources as part of Oregon’s Tier I policy. Currently, Oregon’s water

quality standards do not elaborate on how the agency should implement Tier I protections. 

Likewise, there is no DEQ guidance on implementing Tier I, although it could be said that some

Tier I protections (to “enhance” water quality) are implemented through pollution reductions

called for in Total Maximum Daily Loads (TMDL). TMDLs, however, do not apply to all

waters, they take time to complete, and implementation of the TMDL Load Allocations assigned

to nonpoint sources is largely nonexistent. In contrast, Tier I requirements apply to all waters, do

not require the development of a TMDL, and are water quality standards that other agencies must

meet. In short, Tier I requirements can and should be immediate goals and expectations for all

activities that affect water quality, incorporated into Oregon’s water quality standards.
The left side of the diagram demonstrates what Oregon has in place now. Ø For waters where

the existing pollution load is above an applicable criterion, and a TMDL has been completed, the

TMDL is the triggering mechanism for any pollution reductions. Ù For waters where the

existing load is lower than the criterion and the water is of higher quality than the standard

requires, DEQ has an Internal Management Directive (IMD) that guides an analysis of whether to

allow any proposed increases in pollutant loads from NPDES sources or activities regulated

under Section 401 certifications. There is, however, no Tier II consideration of whether lowered

water quality should be allowed from any nonpoint sources that might increase pollutant loads.

The right side of the diagram demonstrates what Oregon does not have in place. Ú For waters

identified as having a pollution load that exceeds a criterion and that have been placed on the

303(d) list, prior to DEQ’s developing a TMDL, DEQ has no mechanism for lowering pollutant

loads nor any requirements to do so. There is, however, no reason to wait for a TMDL to be

developed to implement basic pollution control practices, such as forested riparian buffers. 

While the TMDL may demonstrate that more actions beyond basic controls are necessary, there

are certain controls that are certain to be needed. Waiting for a TMDL to be completed before

taking those basic pollution control actions merely postpones attainment of Oregon’s water

quality standards. Û Waters that violate Oregon’s narrative criteria are not likely to be listed on

the 303(d) list and therefore will not be scheduled for a TMDL at all. In this case, while water

quality is impaired, and standards are not met, no pollution reduction actions will be taken

because no TMDL will be developed. Ü Likewise, where water quality criteria are below levels

at which toxic pollutants can be detected and quantified, there will be no 303(d) listing and no

TMDL developed even if water quality is violating the criteria. This is particularly important in

light of the fact that roughly half of Oregon’s new human health criteria will be below the

quantitation limit (QL). Waters may well violate these new criteria, but no pollution reduction

actions will be taken. In all three instances on this diagram, nothing in Oregon’s antidegradation

policy triggers pollution controls for nonpoint sources affecting waters that have unsafe levels of

pollution despite Oregon’s stated policy to “protect, maintain, and enhance” Oregon’s water

quality. In fact, there is nothing that will prevent further degradation of these already overpolluted waters.

Likewise, there are no triggering mechanisms to protect, maintain, or enhance water quality that

is higher than the criteria in the following two situations. Ý First, where water quality has

eroded over the 35 years since 1975 – the key date for preserving “existing uses” and the water

quality necessary to protect them – there is nothing in place to ensure that Oregon protects those

uses. Oregon has no mechanism to identify and assess existing uses or to provide for their

protection. Instead, contrary to federal policy, Oregon has allowed uses to become locally

extirpated, species to be forced to the edge of extinction, and water quality to become more

degraded without taking any action. This degradation makes a mockery of the Commission’s

policy to “protect, maintain, and enhance” water quality. Þ Second, where nonpoint sources

will lower water quality that current meets water quality criteria, there are no Tier II mechanisms

to prevent further pollution, DEQ has no internal guidance, and the agency may well lack

regulatory authority to regulate a nonpoint source that is planning to lower water quality.

The solution to all five of the situations described above, where Oregon has established no

triggering mechanism to protect, maintain, and enhance already over-polluted waters or waters
where standards are met is the same: explicit Tier I protections. As stated above, and inherent in

Oregon’s existing Tier I language, Tier I protections apply to all waters, regardless of their

existing quality. Therefore, if the existing Commission policy of protecting, maintaining, and

enhancing water quality were translated into baseline performance expectations for nonpoint

sources, established as Tier I requirements, Oregon’s water quality standards could begin to

remedy Oregon’s water quality problems. Because Tier I requirements are water quality

standards, other agencies that establish management practices for nonpoint sources would be

required to meet them in developing practices for activities under their jurisdiction. 

For example, a Tier I requirement could be continuous forested riparian buffers of a required

minimum width to prevent excess sedimentation and toxics (current and historic) associated with

sediment, as well as to capture nutrient runoff. These buffers also provide shade to both maintain

and enhance temperature, the state’s most widespread pollution problem. Minimum buffer

widths could also be established based on other considerations, such as: (1) application of

phosphorus fertilizers which requires wider buffers to achieve pollutant removal; (2) the slope of

the land which affects the efficacy of buffers in achieving sediment removal; and (3) soils,

climate, and the erosive state of the land affected by human activities.

Likewise Tier I implementation methods could range from general narrative requirements and

performance expectations to specific numeric provisions. They could include such baseline

nonpoint source controls as: 

(1) zones in which no herbicides, pesticides, soil amendments, or fertilizers can be

used because of their likely entry into waters of the state; 

(2) use of the same Oregon Department of Forestry practices currently required to

prevent landslides onto houses and roads to protect streams and rivers from

landslides; 

(3) a narrative prohibition on controllable erosion into waters of the State; 

(4) a requirement that stream banks be stable and preserved in or restored to a natural

state;

(5) calculated limits on controllable erosion established through modified Universal

Soil Loss Equations, Tolerable Soil Loss, or other methods; 

(6) limits on rates of application of fertilizers and soil amendments containing toxics

and nitrogen;

(7) prohibitions on domestic animals, and their wastes, being in and near streams,

with specific numeric restrictions (e.g., location of fencing, watering areas, and

stream crossings); and 

(8) use of all known available and reasonable methods of control and treatment. 

These are but a few of the approaches that could be taken to implement Tier I of Oregon’s

antidegradation policy. The general rationale for these approaches is set out in the October 21,

2009 memorandum from the Mixed Media Subcommittee regarding “Controlling Non-Point

Source Runoff of Toxic Contaminants.” All baseline controls for nonpoint sources would apply

as Tier I protections unless a TMDL directed that more stringent controls were necessary to meet

load allocations and water quality standards.