Legislature(2019 - 2020)BARNES 124
04/29/2019 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB43 | |
| HB138 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 43 | TELECONFERENCED | |
| *+ | HB 138 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 138-NATIONAL RESOURCE WATER DESIGNATION
2:13:12 PM
CO-CHAIR TARR announced that the final order of business would
be HOUSE BILL NO. 138, "An Act requiring the designation of
state water as outstanding national resource water to occur in
statute; relating to management of outstanding national resource
water by the Department of Environmental Conservation; and
providing for an effective date."
2:13:41 PM
The committee took an at-ease from 2:13 p.m. to 2:15 p.m.
2:15:32 PM
REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, sponsor,
introduced HB 138. He testified the bill would clarify that the
designation of Outstanding National Resource Waters, also known
as designated Tier 3 waters, would be accomplished by the
legislature through statute. He said the Alaska constitution
places the responsibility for significant land and water use
decisions in the hands of the legislature. He read from Article
VIII of the constitution, Section 7, Special Purpose Sites,
which states: "The legislature may provide for the acquisition
of sites, objects, and areas of natural beauty or of historic,
cultural, recreational, or scientific value. It may reserve
them from the public domain and provide for their administration
and preservation for the use, enjoyment, and welfare of the
people." He also read from Article VIII, Section 2, General
Authority, which states: "The legislature shall provide for the
utilization, development, and conservation of all natural
resources belonging to the State, including land and waters, for
the maximum benefit of its people."
REPRESENTATIVE KOPP said a good example of this constitutional
mandate in practice is the 118 state legislatively designated
areas in Alaska, which includes refuges, sanctuaries, critical
habitat areas, special management areas, forests, parks,
recreation areas, preserves, public use areas, recreation
rivers, and recreation mining areas, which total nearly 12
million acres. Each of these areas, he stated, was designated
by legislative approval, not an agency executive approval
process. He said Alaska's voters have clearly spoken on what
they believe the ultimate authority should be with land and
water use designation process. This was seen in 2014, he
specified, when voters approved the Bristol Bay Forever
Initiative by a margin of nearly 4:1, which gave the legislature
the final say in whether to allow the development of large scale
mining projects in the Bristol Bay Area. He said HB 138 would
simply continue this strong precedent of ensuring significant
land and water use decisions, in this case Tier 3 waterbody
designation, resides in the hands of the legislature.
REPRESENTATIVE KOPP stated that Tier 3 designation bestows the
highest level of water quality protection under the federal
Clean Water Act such waters are deemed the highest ecological
and recreational importance. He related that in 1983 the
Environmental Protection Agency (EPA) defined Tier 3 waters to
be exceptional ecological and recreational significance and that
their water quality be maintained and protected from degradation
in perpetuity. He said the EPA further mandated that each state
establish a process for designating these Outstanding National
Resource Waters. Alaska doesn't currently have a process, he
continued, and the EPA has asked the state to identify a formal
process for designating Outstanding National Resource Waters.
He said this puts the state at risk of violating the Clean Water
Act and opens up the possibility for the EPA imposing its own
designation process, which it has no interest in doing. He
related that in a 2018 letter to former Department of
Environmental Conservation (DEC) commissioner Larry Hartig, the
EPA wrote it supports Alaska's efforts to develop a designation
process and that it has no interest in doing that for the state.
REPRESENTATIVE KOPP stated that defining a designation process
would provide conservationists and developers alike a measure of
certainty in how to go about this designation. He said HB 138
would solve this problem by codifying in statute a designation
process that is consistent with how lands and waters across the
state would be designated for conservation by legislative
approval rather than by department or agency decision. This
designation is an important tool for protecting human and
environmental health, he continued. He maintained it is a
significant policy decision because it would restrict a wide
range of activities on state waterbodies as well as on adjacent
lands that have waters flowing across them into those
waterbodies. He said large-scale resource development projects
located near Tier 3 watersheds would therefore be impacted by
Tier 3 designation and so would road and building construction,
motorboats, recreational activities, seafood processing,
municipal wastewater discharge, residential and commercial
septic systems, storm water discharge, landfills, timber
harvesting, and gravel quarries. He opined that such widespread
impacts effectively make Tier 3 designation a de facto land use
decision and as such the final decision for Tier 3 designation
properly resides in the hands of the legislature, which HB 138
would do. He further opined that HB 138 would provide certainty
for conservationists and developers alike on the designation
process of Outstanding National Resource Waters. Representative
Kopp said the bill isn't lengthy, it just says that this should
be done in statute by the legislature.
2:22:23 PM
REPRESENTATIVE TUCK remarked that it is unknown what the statute
is going to be. He therefore asked why not come up with a bill
that defines the process because, then, "boom, we're done."
REPRESENTATIVE KOPP replied that the logical outflow of HB 138
is that the administration would still have a duty as DEC to
document petitions brought forward for Tier 3 designations and
the legislature would know about it when the administration
brings forth a bill that would be introduced by the House or
Senate rules committees by request of the governor. That is how
those are done now, he continued, so the question would come
before that body in a manner in which the body is accustomed to
seeing it.
REPRESENTATIVE TUCK offered his understanding that a process is
not being defined, it is just being said that the procedure is
to follow the bill when the designation of a body of water or
river is wanted.
REPRESENTATIVE KOPP responded yes, file a bill and get
legislative approval.
2:24:01 PM
REPRESENTATIVE HANNAN asked whether the governor could already
do that. She further asked whether this governor or a previous
governor has done that with any of the five nominations for
[Tier 3 designation].
REPRESENTATIVE KOPP answered that the five currently outstanding
requests may go as far back as Governor Parnell. He related
that former DEC commissioner Larry Hartig wrote two separate
memos, one to DEC and one to the legislature, in which the
commissioner recommended an approval process where these
decisions were made by the legislature. He said Commissioner
Hartig further stated in the memo that until a process was
established the commissioner did not feel the state was in a
position to show it was complying with the federal Clean Water
Act as having a way to resolve these Tier 3 designations.
REPRESENTATIVE HANNAN inquired as to why [DEC] hadn't forwarded
the nomination of the Koktuli [River] [located in Bristol Bay]
for Tier 3 designation given it has been pending for 10 years.
REPRESENTATIVE KOPP replied it is because this bill has not
passed yet. He said Governor Walker filed Senate Bill 163
[Twenty-Ninth Alaska State Legislature], but it didn't pass so
now he is continuing that.
REPRESENTATIVE HANNAN asked how many states have a designation
process and how many have it limited to strictly a legislative
decision, as opposed to a hybrid of the Board of Water making a
recommendation and then the legislature acting on it.
REPRESENTATIVE KOPP deferred to DEC. He said there is a mix of
statute, board or commission, or executive agency decision, but
he doesn't know how those are broken down.
2:26:48 PM
EARL CRAPPS, Section Manager, Division of Water, Department of
Environmental Conservation (DEC), answered Representative
Hannan's question. He said the division doesn't have those
broken down, but does have a summary of the different state
processes. He explained that the process itself is not
specified via federal regulation; it is up to each state
individually to determine that process. He said each state does
it differently - some are legislative, some are through a board,
and some are a specific agency within the state that makes the
designation.
REPRESENTATIVE HANNAN inquired whether there are any other
states where that decision is exclusively legislature with no
other board or department process preceding that.
MR. CRAPPS replied he would research it and get back to the
committee with an answer.
2:28:00 PM
CO-CHAIR TARR stated she would be interested in receiving
documentation from Mr. Crapps. She noted she has some documents
regarding some western states. For example, she said, Arizona
has processing criteria and regulations, Nevada is a little
different, New Mexico is in regulation, and Oregon is policy-
processing criteria combined in anti-degradation policy
regulation.
2:28:33 PM
REPRESENTATIVE SPOHNHOLZ asked what the EPA considers to be an
adequate definition to meet the Clean Water Act standards. She
further asked whether having it in regulation is enough.
MR. CRAPPS responded that the EPA does not specify. He said
[Alaska] currently has in place a policy that says these
nominations are to be taken to the legislature for designation
and the EPA has indicated that this policy is adequate to meet
an interpretation of the Clean Water Act.
REPRESENTATIVE SPOHNHOLZ concluded Mr. Crapps is saying that
[the State of Alaska] already has something in regulation that
meets the definition of the EPA's criteria to meet the Clean
Water Act standards.
MR. CRAPPS answered correct and said last year [DEC] promulgated
air degradation regulations and also posted [the department's]
policy for Tier 3, which indicates that these nominations be
taken to the legislature. The EPA, he continued, has indicated
that that is acceptable.
REPRESENTATIVE SPOHNHOLZ asked whether there has ever been a
Tier 3 waterway designation in the state of Alaska.
MR. CRAPPS replied no, not to this day.
REPRESENTATIVE SPOHNHOLZ offered her understanding that there
are currently five nominations on the books, but so far, the
administration hasn't seen fit to bring any of them forward to
the legislature.
MR. CRAPPS responded correct; five are being held and have not
been brought forward any further.
REPRESENTATIVE SPOHNHOLZ said it sounds like the state already
has in place the process that is being recommended in HB 138.
She inquired why the sponsor thinks this process that is
currently in regulation and that meets the EPA's clean water
standards should be put in statute.
2:30:45 PM
REPRESENTATIVE KOPP replied [Tier 3] designation is a political
question because it is so far reaching and is the highest
designation of any water body use. He said it is so high that
the state of California, which is probably far more restrictive
environmentally than Alaska, has only applied it to two water
bodies. He related that there are none in Nevada, Washington,
Idaho, or Alaska and offered his belief that there is one in
Oregon. This is a higher standard than drinking water, he said,
the reason being that some aquatic life is more sensitive to
copper than are humans. Its subsequent impact affects large
adjoining land areas, he continued. He said the question is,
"Do we want these types of sweeping decisions made by an
administrative agency or do we want to have these discussions
before a legislative body where we can talk about it
collectively and express our collective will if we think this
special use designation is what we want and hear from the people
rather than maybe get an internal agency report on their
thoughts on the matter?" Every administration changes, he
added, along with its preferences and wishes and this bill would
bring this highest-level question before the legislature.
2:32:55 PM
KEN TRUITT, Staff, Representative Chuck Kopp, Alaska State
Legislature, specified that part of the answer is the timing of
the regulations. He stated the regulations were done in consort
with Senate Bill [163], which would have done what HB 138 [is
proposing] to do, and the regulations got into effect before the
bill got passed. There is currently an ambiguity, he continued,
because those regulations point to the legislature and there is
nothing currently in statute that says the legislature will do
this. So, he said, HB 138 would complete a process that was
started by DEC in consort with the legislation of a prior
administration.
REPRESENTATIVE SPOHNHOLZ stated that it sounds like regulations
are already in place that put into effect what is described in
HB 138. So, she continued, there may not be a problem that
needs solved, unless the effort is to ensure there wouldn't be
citizen initiatives that create a Tier 3 water designation. She
asked whether the intent is to try to prevent a citizen's
initiative from creating a Tier 3 water designation.
REPRESENTATIVE KOPP replied he is unsure what the constitutional
implications are with natural resources. He said the courts use
bright line tests for whether a resource can be done through the
initiative box and therefore he doesn't know if this could be
done through an initiative. But, he continued, DEC considers
this designation to be so far reaching that once a nomination
for Outstanding National Resource Water is made it basically
goes around most of the tools used by DEC to regulate water
quality standards for normal water quality designations and DEC
prefers this policy call be made by the legislature. He
deferred to DEC to answer further.
MR. CRAPPS clarified that the recently promulgated regulations
deal only with how Tier 3 water will be managed once it is
designated. He explained that what he spoke to earlier is DEC's
policy, which is not in regulation. The policy itself is just a
department policy, he continued, and it says the nominations
will be submitted to the legislature for designation.
2:36:51 PM
NILS ANDREASSEN, Executive Director, Alaska Municipal League,
testified in support of HB 138. He spoke as follows:
As you know, municipal powers, especially for
boroughs, can include planning and zoning,
transportation, ports and harbors, sewer and water,
solid waste management, road maintenance, and flood
protection and mitigation. Each of these relate back
to Tier 3 designation. The role of local government
is extensive as it relates to community development,
public safety, and public welfare. Local decision-
making takes into account extensive public input and
directly involves residents in a review of that
development's impacts on lands and waters within city
or borough boundaries. The designation of Tier 3
waters by an agency would impact local control and
decision-making, which otherwise would involve
residents and locally elected officials in a dialogue
about the sustainability of community development and
locally determined approaches to the mitigation of
negative impacts. Designation may adversely impact
municipal wastewater treatment plants, for instance,
or storm water permitting. Alaska's constitution is
clear in assigning to the legislature the
responsibility for the administration of the state
public domain and, further, the reservation of the
public domain for special purposes. In our review of
HB 138 we believe that the legislative role in Tier 3
designation maintains the separation of powers between
the executive and legislative branches, is consistent
with constitutional intent and, further, that the
legislative process mirrors that found locally the
inclusion of Alaskans in a process that is overseen by
elected officials. We commend to the legislature the
importance of the role that local governments have in
this process. Clearly the conservation and protection
of Alaska's waters is a meaningful discussion for all
Alaskans, just as important as Alaska's community and
economic development. Clarifying the legislature's
role in Tier 3 designations isn't making a choice
between the two, but provides a platform for the
careful negotiation that must take place with respect
to both.
2:39:51 PM
CO-CHAIR TARR opened public testimony on HB 138.
2:40:11 PM
KIMBERLY STRONG, Tribal Council President, Chilkat Indian
Village, testified in opposition to HB 138. She related that
her community is one of three that are proposing Tier 3 status
for the Chilkat River. She stated she is concerned about the
process being brought forth because it would depend on somebody
else and the administration in office. She maintained that
putting the process for Tier 3 designation into the legislative
body would result in the decision process becoming a political
battle. She pointed out that she would not have enough funds to
fly to Juneau to testify in front of legislators [unlike] mining
companies or other companies that want to have resource
extraction that could irreparably damage the river that provides
five species of salmon for the people of the Chilkat Valley.
MS. STRONG stated that Tier 3 designation should be a process
where environmental experts make the decision as to whether this
is needed to protect the waterway. She related that in the past
DEC was asked whether it had done water quality testing in the
Chilkat River and DEC said it had not because there were too
many waterways in Alaska for the department to test. So, she
continued, the Chilkat River goes untested for water quality.
She reiterated she would rather it not be a political process
and instead be a process that DEC decides.
2:43:08 PM
JONES HOTCH, Jr., Vice President, Chilkat Indian Village,
testified in opposition to HB 138. He noted Chilkat Indian
Village is a federally recognized Indian tribe. He urged that
the bills in the House and Senate not be passed. He pointed out
there would be no appeal process and therefore DEC should be the
one that handles the nomination and selection.
2:44:06 PM
SHANNON DONAHUE testified in opposition to HB 138. She said she
lives at the mouth of the Chilkat River, which has been
nominated for Tier 3 protection because of its exceptional
ecological and cultural significance. She stated that people
and all living things in the Chilkat Valley depend on this river
for sustenance. She said HB 138 would deny Alaskans their right
to protect their most valued waterways by implementing a
complicated political process for designation through the
legislature, making it nearly impossible to achieve the
protections that people have a right to as Alaskans and as
Americans. Meanwhile, she pointed out, mines and mineral
exploration companies go through a simple permitting process if
they want to degrade these waters. She said this makes no sense
because everyone in Alaska depends on the state's clean, life-
giving waterways, yet it is easier to get permission to pollute
the waterways than to protect them.
MS. DONAHUE stressed that Tier 3 designation should be a
transparent, reasonable, nonpolitical process based on clear
criteria, and ecological, cultural, or recreational values, and
the will to protect Alaska's waterways. She urged that the
entire review and designation process remain with the DEC. She
further urged that HB 138 be killed and the right of Alaskans be
defended to protect their waters and their homes.
2:45:35 PM
JILL JACOB testified in opposition to HB 138. She said it is
critical the authority for designating Tier 3 water remain with
the DEC and the process remain an administrative equal to that
of permitting water. She stated that it is astonishing Alaska
does not yet have a Tier 3 waterbody. She noted that Lake Tahoe
in California is a Tier 3 waterbody and that it hasn't stopped
people from swimming, drinking, or anything else. She offered
her understanding that HB 138 would remove the option for a
public ballot to designate Tier 3 water and would also provide
the way for a governor to veto a Tier 3 water designation.
Alaska has the last remaining healthy wild salmon on the planet
other than a few places in Russia, she said, so there is a need
to start protecting Alaska's waterbodies with the highest
possible protection. She added that no amount of economic
development is worth the state's safe drinking water or fish.
2:47:16 PM
KIP KERMOIAN testified in opposition to HB 138. He reported
that at a 3/20/17 meeting in Juneau, focal groups were formed to
specifically address the process that the state of Alaska should
employ to nominate and designate Outstanding National Resource
Waters. He said the meeting attendees were two representatives
for conservation organizations, two for commercial fishing,
eleven for government, sixteen for industry, five for Alaska
Natives, two for the Upper Lynn Canal Fish and Game Advisory
Committee, and five undeclared representatives. Of importance,
he noted, is that one point of consensus was that none of the
focal groups expressed support for a legislative path to Tier 3
designation; the opinion otherwise was split between an all DEC
option or some combination of a DEC and a Tier 3 advisory board.
MR. KERMOIAN stated that like those at the workshop, he does not
support a legislative option. He expressed his opinion that it
should be DEC along with an advisory board and it should be
evaluated for a specific nomination path and recommended to the
DEC by this board at least with stakeholders and a body of other
people involved. He said inviting the legislature to make this
determination politicizes this process and it should be left to
natural resources and scientists, people of expertise in the
field. He pointed out that for Tier 3 these experts would be
evaluating exceptional, important, unique, and sensitive
ecological waters. He added that the transient political nature
of how things go would not lend itself well to this process. He
said corporations can apply for a process to grade water and HB
138 and SB 51 would eliminate the ability for residents and the
public to do the same.
2:50:10 PM
BETSEY BURDETT testified in opposition to HB 138. She offered
her belief that this process should stay in the realm of DEC and
some kind of advisory board. She noted that legislators are
replaced every few years, as is the governor, and she would like
to keep it on an administrative level with experts that know
about the environment. She disagreed that this designation is a
land use decision and said it is about clean rivers. Given many
of these rivers already have things going on, she added, it
isn't like it is being taken off the grid.
2:51:28 PM
JAN CONITZ testified in opposition to HB 138. She stated that
while the bill sounds like a simple change, it isn't - it's a
sweeping change. She said HB 138 would take away the rights of
ordinary Alaskans, and over time would result in great harm to
Alaska's mostly pristine waters by taking away the right of
people who know these waters to take steps to protect them. She
pointed out that unique about Alaska compared to all other
states, is the direct dependence of so many Alaskans on clean
and unspoiled waters. Those with direct connection to the land
and water, she continued, have close-up firsthand knowledge of
the waterways that need protection and they know about the risks
of not taking care of those waters.
MS. CONITZ said all Alaskans currently have the right to
nominate waters critically important as Outstanding National
Resource Waters. The designation protects waters from long-term
pollution and degradation by simply not allowing dumping of
waste into them, she continued, and would not preclude ordinary
existing uses of the water. But, she stated, HB 138 would
remove the right of ordinary Alaskans to take the first step to
protect the water that they depend on and care about. The bill
would turn efforts to reasonably protect clean water over to a
political process, which would probably in practice be nearly
impossible to prevail. She pointed out the legislature can at
this time designate Tier 3 waters if it chooses to, but
evidently it has not, and so there is no point in passing HB 138
to give the legislature more authority. She reiterated that HB
138 would take away the authority and the rights of ordinary
Alaskans and would allow further degradation of Alaska's clean
waters. She urged the bill not be passed.
2:54:31 PM
DOUG WOODBY testified in opposition to HB 138. He said he began
working for the Alaska Department of Fish and Game in the mid-
1970s and retired a few years ago as a chief fisheries
scientist. He noted he conducted research and management work
all around the state and is opposed to HB 138 for a number of
reasons. The primary reason, he continued, is because it would
make the designation of these exceptional waters a political
process when it should be based on best scientific expertise.
He said that based on the bill's sponsors, it is clear that many
are extractive industries. Alaska currently has no waters
designated under this special designation, he stated, and it
appears that HB 138 is a thinly veiled attempt to make that
almost impossible, which is why he opposes it.
2:55:51 PM
DEANTHA CROCKETT, Executive Director, Alaska Miners Association
(AMA), testified in support of HB 138. She spoke as follows:
The Clean Water Act requires all states to maintain a
process for Tier 3 water designation. This is for
water that's described as having exceptional
recreational or ecological significance or waters that
are within parks and refuge, so truly special
scenarios of water protection above what the State of
Alaska already does. Tier 3 waters effectively cannot
have any new or any expanded activities that have the
potential to change the water quality in any way. So
this would apply even in situations where the activity
meets existing water quality standards and fully
protects the fish and the water and any other uses. A
designation would result in significant restrictions
on land and water users and cause significant adverse
and social and economic impacts. Because a
designation applies to a Tier 3 tributary or a Tier 3
water, it would prohibit development in entire
watersheds comparable to de factor wilderness. And
for that reason we believe ... the authority to
designate should lie solely with representatives of
Alaskans, which is the legislature.
With regard to the designations, they've got the
potential to become tools for anti-development
interests to block or delay projects. It's evident in
the five nominations before DEC currently, which
specify mining, oil and gas, federal land planning,
and Alaska Native corporation land selections as
threats to waterbodies. But it's clear that a
designation goes a lot farther. Tier 3 designation
could impact a lot of other users, non-development
users that the sponsor outlined in his introduction.
... That is why you will see in your packet a letter
authored by 15 diverse organizations that understand
the impact of a Tier 3 designation to all Alaskans.
And we believe that given the significant adverse and
watershed-wide land and water use impacts that a Tier
3 water should be designated only by a vote to the
legislature. This is consistent with the
constitution, the existing process for setting aside
areas of state land from development, and existing DEC
policy. And for those reasons we urge you to support
this bill.
2:58:10 PM
JESSICA PLACHTA, Executive Director, Lynn Canal Conservation
(LCC), testified in opposition to HB 138. She said her
organization's 300 active members are speaking with her as she
testifies opposing HB 138 and SB 51. She related that LCC
supports the Village of Klukwan, which nominated the Chilkat
River for Tier 3 protection. She continued:
Clean water is not a partisan issue. Anyone who has
ever fed a child or caught a fish knows that clean
water is a basic human right. Alaska is blessed with
abundant clean water and despite its small population
Alaska is also the biggest water polluter in the
country. It can do better than that. The state of
Alaska has been out of compliance with the Clean Water
Act for over 20 years. But [Alaskans] are demanding
the right to protect our clean waters and healthy
salmon runs before rampant industrialization makes our
way of life history. Support for subsistence is built
into the state constitution; it should not be easier
to pollute public waters in the state of Alaska than
it is to protect them. Opponents of protection argue
that Tier 3 designation would be bad for business.
Tell that to Florida, which has 41 designated Tier 3
waterways and a robust economy. We are counting on
you legislators to resist corporate pressure and do
the right thing. Let communities protect the waters
they rely on using sound science, not corporate
pressure and not politics for the yardstick. It's
that simple. There is an alternate Tier 3 bill
waiting in the wings, one that makes it easier to
protect the water we all rely on for our health, our
wealth, and our future generations. Wait for it.
Please oppose HB 138 and SB 51. Three hundred of us
here in Haines ask you to join us and oppose these
destructive backward bills. And please let us protect
the Chilkat River.
3:00:36 PM
LOUIE FLORA, Director, Government Affairs, The Alaska Center
(TAC), testified in opposition to HB 138. He stated:
We believe the state's top cop for water quality
regulations, DEC, has the ability, expertise, and
clear legal authority to establish a science based
nomination process for high value waters for Tier 3
water as required under the federal Clean Water Act.
We believe administration of Tier 3 for waters of high
ecological or recreational value can be rendered under
the existing anti-degradation policy incorporated in
the existing DEC water quality standards program. ...
DEC does not need additional legal authority to
designate Tier 3 waters; it just needs to adopt a
process for doing that. Moving legislative designation
of Tier 3 waters will result in an entirely political
process for any discussion on the science based
merits, and the Tier 3 designation will be steamrolled
by politics and money. And DEC has the water quality
expertise and the ability to regulate water quality
[and] should be the entity to make the protective
determinations.
MR. FLORA addressed the argument that HB 138 is necessary
because Tier 3 designations are too big of a policy call for
DEC. He said this to be a strange argument in that EPA is
currently moving ahead with certification of an Alaska water
quality regulation promulgated by DEC in 2006 that allows
pollution-mixing zones in salmon spawning areas statewide. He
pointed out that this 2006 regulation has far reaching
implications for salmon habitat and for salmon user groups
statewide and was carried out administratively. Yet, he
continued, with HB 138 it is being said that to protect very
specific and geographically limited waters of exceptional
ecological value the burden is too great for an administrative
process. He said the argument that the agencies should not
independently make determinations to protect certain waters
ignores the statute that allows citizens, organizations, and
state agencies to make in-stream flow or water quantity
reservations through an administrative process overseen by DNR.
These reservations, he noted, are made quite often by the Alaska
Department of Fish and Game to protect fish habitat and it's all
without legislated confirmation or approval.
MR. FLORA stated HB 138 is unnecessary and should not be moved
from committee. He said DEC should, within its clear authority,
create a regulation that satisfies the federal Clean Water Act
requirement that states have a process for citizens to nominate
specific high value waters for protection from additional
degradation.
3:03:32 PM
GUY ARCHIBALD testified in opposition to HB 138. He stated he
is representing himself but works as staff scientist for the
Southeast Alaska Conservation Council (SEACC). He said some of
the talking points in the sponsor's statement are imperfectly
informed, such as the statement that the State of Alaska
currently has no formal process for designating a Tier 3. He
drew attention to the [7/26/18] letter in the committee packet
from the EPA to Mr. Andrew Sayers-Fay [Director, Division of
Water, DEC] and noted the letter mentions that EPA is approving
the Tier 1 and Tier 2 because DEC still has in place the interim
antidegradation guidance that outlines three different ways to
designate Tier 3. One of those ways, he said, is through the
triennial review process where any resident of the state can
nominate a Tier 3 and DEC is supposed to move that along.
MR. ARCHIBALD said nobody argues that the legislature does not
have the authority to designate a Tier 3. He stated the
legislature can act on those at any time and has always been
able to do that. So, he continued, if this bill is not a bill
to form a designation process, then it must be asked, What is
it? He said it's clear that HB 138 is designed to take a public
process out of it so that the public process does not have an
administrative process or even an appeal process judicially to
form a Tier 3. In regard to statements that protecting the
water is so far reaching and has so many other effects, he
pointed out that contaminating water has effects as well - on
other landowners, communities, and people's ability to make a
living through the fishing industry. He maintained it is not a
land use decision because landowners adjacent to the state's
public waters have no inherent right to pollute those waters.
CO-CHAIR TARR inquired about the three ways [that DEC has to
designate a Tier 3].
MR. ARCHIBALD replied that the Alaska Department of Law (DOL)
has done an opinion on this, but has not made it public. He
related that the Department of Law told him it was attorney-
client privilege. He suggested the committee ask for it.
3:06:36 PM
SARAH DAVIDSON, Program Manager, Inside Passage Waters,
Southeast Alaska Conservation Council (SEACC), testified in
opposition to HB 138. She said her position with SEACC provides
her the opportunity to travel throughout Southeast Alaska, speak
to communities about water challenges and opportunities, and
listen to their concerns, needs, and interests. She continued:
Of the many concerns I've heard, those relating to the
future of wild Alaskan salmon stocks have come up the
most, a concern that I imagine is shared by many in
this room. As stressors in the ocean ecosystem
increase, our streams and rivers become even more
critical to the survival of salmon and the communities
that rely on them. Currently most Alaskan waters are
clean enough to catch fish and eat without significant
health hazards. This is one of the few places on
earth where this is the case. That alone makes Alaska
unique and fuels our two largest economic drivers in
this region fishing and tourism. We should be doing
everything we can to protect that special quality and
the waterways that make that possible. Instead HB 138
makes it even more difficult than it already is to
protect our clean waters and leads us down the same
path from which other states in our country are still
struggling to recover after decades of industrial
pollution. It should be no more difficult to protect
Alaskan waters that it is to pollute them. Not only
does HB 138 make this process political rather than
scientific by removing authority from DEC, it also
removes the opportunity of Tier 3 designation by a
public initiative. The same agency that has the
scientific expertise to implement a Tier 3 designation
should also have the authority to designate them
through an administrative and science based process.
This is not my perspective alone. It is shared by
over 150 people who signed our petition calling for a
Tier 3 designation process equally as administrative
and streamlined as the permit process to degrade our
waters. Any short-term gains made by the passing of
HB 138 will be undermined by the long-term detriment
to our clean water, our healthy fish, and our
resilient communities. HB 138 hurts all of us. ... I
call on each representative on this committee to have
the will and the courage to prioritize clean water for
those yet to come by defeating this bill.
3:09:20 PM
HEATHER EVOY testified in opposition to HB 138. She stated she
is Tsimshian from the Eagle Clan. She noted she works as the
Indigenous Engagement Lead for the Southeast Alaska Conservation
Council (SEACC), but is speaking today on behalf of herself as
an Alaska Native whose ancestors have been here for 10,000-plus
years. She said that for almost 10 years DEC has sat on the
five Tier 3 nominations, all of which have come from an Alaska
Native tribe, not corporations. In regard to the argument by
proponents of a legislative-only Tier 3 process that Tier 3 is
just a tool for special interest groups, she pointed out that
tribes are not special interest groups any more than any other
government entities.
3:10:53 PM
PHILLIP MOSER testified in opposition to HB 138. He stated that
passing the bill would be a blow to the voice and wellbeing of
citizens like him. He said he finds it outrageous that the
proponents of smaller government and less regulation have a
talking point that only applies to industry and capital, but
when citizens have a tool to advocate for themselves and their
health and the waters on which they rely, proposals are made to
add more and more bureaucracy to stop them. He stated DEC is
set up precisely to work through Tier 3 water issues and can
respond to community advocacy well; shunting Tier 3 designation
to the state lawmaking process would result in losing a
straightforward fact based investigative process to political
stalling.
MR. MOSER asked why business can apply to the DEC with a six-
page application to engage in long-term pollution of Alaska's
best waters while its own citizens trying to protect those same
waters upon which they rely and live on are considered a threat.
Regardless of whether the bill passes, he said, the evidence
already says Alaska's waters have many stressors and everything
possible needs to be done to uphold Alaska's waters as the
cleanest and best waters for its own citizens. He noted Tier 3
designations do not apply to existing uses of those waters, and
offered his belief that the argument that it could be onerous to
people if this legislation isn't passed is much overstated.
3:12:38 PM
[HB 138 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 43 Sponsor Statement.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| CSSB 43 (SFIN) - Sectional Summary.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| SB 43, Version A.PDF |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM |
SB 43 |
| CSSB 43, Version B.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| SB 43 Work Draft v. M - Explanation.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM |
SB 43 |
| SB 43 Letters of Support.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM |
SB 43 |
| SB 43 Letters of Opposition.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| SB 43 DCPL Letter .pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM |
SB 43 |
| SB 43 Bunch Testimony .pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| SB 43 Additional Testimony Huttunen.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| SB 43 BGCSB Letter of Support 4.03.19.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| SB 43 Big Game Commercial Services Board Sunset Review Audit.pdf |
HRES 4/29/2019 1:00:00 PM |
SB 43 |
| HB138 Sponsor Statement version U 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 version A 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DNR Fact Sheet Legislatively Designated Areas 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 Supporting Material DEC Tier 3 Water Designation FAQ 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Tier 3 response 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Final Tier 3 Guidance 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material Commissioner Hartig Letter to Senate 4.22.2019.PDF |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM |
HB 138 |
| HB138 40 CFR Part 131 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 18 AAC 70.016 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB136 Fiscal Note 4.26.19.pdf |
HRES 4/29/2019 1:00:00 PM |
HB 136 |
| HR138 Supporting Document EPA Response to DEC 7.26.18.pdf |
HRES 4/29/2019 1:00:00 PM |
HR 138 |
| HB138 Supporting Document - Chilkat Indian Village Letter of Opposition 4.26.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC P&P re Tier 3 Nomination 11.21.18.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document EPA Response to DEC 7.26.18.pdf |
HRES 4/29/2019 1:00:00 PM |
HR 138 |
| HB138 Fiscal Note 4.26.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
HB 138 |
| HR138 Supporting Document EPA Response to DEC 7.26.18.pdf |
HRES 4/29/2019 1:00:00 PM |
HR 138 |
| SB43 Supporting Document - RHAK Letter House Resources 4.25.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM |
SB 43 |
| HB138 Coalition Letter of Support 4.28.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Letters of Opposition 4.29.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 Additional Letters of Opposition.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |