Antidegradation Tier II Review - Frequently Asked Questions
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A: The Tier II review is required for new or modified National Pollutant Discharge Elimination System (NPDES) permit applications, Nontidal Wetlands and Waterways permits, and activities requiring a 401 Water Quality Certification (also issued by the MDE Nontidal Wetlands and Waterways Program). Additionally, the review is required for Water and Sewer Plan Amendment reviews. Other MDE environmental reviews that may result in future permitting, for example Interagency Clearinghouse Reviews, may also identify related projects that may need to undergo a Tier II review, and potentially require Tier II review information at that time.
A: It is strongly recommended that applicants contact MDE to discuss Tier II review project requirements before submitting an application. This will provide an opportunity for MDE to review drafts, and identify any special conditions, like monitoring or special studies, that may apply. Applicants seeking modifications to wastewater treatment discharge permits are required to contact MDE regarding the Tier II review at least 18 months before submitting an application. If you are conducting a feasibility study, it would be beneficial to include Tier II waters avoidance analysis into selection criteria.
A: The review consists of 2-3 basic steps: a no-discharge alternatives analysis, a minimization alternatives analysis, and, if there is no
assimilative capacity remaining in the Tier II water, a social and economic justification for impacts to Tier II waters.
A: First, determine if your project does not require further review by using the
Tier II No Additional Review form. If MDE concurs, no further documentation is needed.
If there is no assimilative capacity remaining in the Tier II water(s) affected by your project, you will have to complete a social and economic justification (SEJ). The SEJ outline for public entities can be found
here, while the SEJ outline for private entities is found
here.
A: Impacts to stream characteristics like temperature, pH, dissolved oxygen, etc., are mitigated through treatments such as stream dosing, stream buffers, stream improvements to increase aeration, or other management plans. Preferred mitigation for stream buffer impacts include increasing buffers up or downstream of the permanently disturbed stream section. Preferred mitigation for net forest loss or net impervious cover (IC) increases (not treated with Environmental Site Design (ESD)), is in-kind reforestation, 1:1 for each acre of forest lost, or increase in IC. Other forms of acceptable mitigation include off-site riparian buffer improvements, stream restoration, and retrofits. Conservation may be considered if it is offered along with other forms of mitigation. To count, mitigation must occur within the affected Tier II watershed.
A: If you conducted a robust alternatives analysis, and determine that mitigation is not possible, MDE will require additional justification before completing the Tier II review, regardless of assimilative capacity. Sufficient documentation must be provided to MDE to demonstrate that all potential mitigation opportunities were exhausted before the Department can make a final decision. MDE may require additional analysis to support this demonstration.
A: At a minimum, each SEJ should include the economic contributions of the project such as job creation, tax revenue, as well as other social benefits gained by the affected community located in the watershed of the Tier II water. The SEJ should also discuss the loss in value of the Tier II water as well as the economics of restoration of lost water quality.
A: Please direct any questions or comments concerning Maryland's Antidegradation program to Angel Valdez at
angel.valdez@maryland.gov. Email is the preferred option to provide project information, availability, and questions. Virtual meetings are scheduled upon request.
A: MDE may deny your permit if you fail to adequately complete any portion of the required analysis or justification. If you provide all analysis and justification materials, but the justification does not show that the public benefit of your project overrides the value of the Tier II water, MDE will deny.
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This page was last updated 06/2021.
