Legislature(2019 - 2020)BUTROVICH 205
03/15/2019 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB51 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 51 | TELECONFERENCED | |
SB 51-NATL. RES. WATER NOMINATION/DESIGNATION
3:30:49 PM
CHAIR BIRCH announced the consideration of Senate Bill 51 (SB
51).
He detailed that SB 51 is an act requiring the designation of
state waters as outstanding national resource waters to occur by
law, sponsored by the Senate Resources Committee. The
designation of state waters as outstanding national resource
waters could have broad impacts on resource development,
recreation, and a range of other activities on state lands and
waters.
He explained that he introduced SB 51 to ensure that the
authority to designate state waters as outstanding national
resource waters lies where the state constitution intends it to,
within the hands of the legislature. Federal regulators have
already signaled that legislative approval would be an
appropriate means of designation; likewise, the Alaska
Department of Environmental Conservation's current internal
policy defers designation to the legislature.
He specified that SB 51 would codify the designation of state
waters as outstanding national resource waters process and by
doing so provides certainty for developers, conservationists,
and state and local regulators alike.
3:31:18 PM
SENATOR KAWASAKI joined the committee meeting.
3:32:09 PM
TREVOR FULTON, Staff, Senator Birch, Alaska State Legislature,
Juneau, Alaska, explained that SB 51 would codify a process for
designating Outstanding National Resource Waters, commonly
referred to as "Tier 3 waters." The Alaska Constitution clearly
places the responsibility for significant land-and-water-use
decisions in the hands of the legislature.
He detailed that Article 8, Section 7, reads, 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 explained that Article 8, Section 2, holds that, 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 the
people."
He said an example of the expressed constitutional mandate in
practice is the 118 State Legislatively Designated Areas which
includes refuges, sanctuaries, critical habitat areas, ranges,
special management areas, forests, parks, recreation areas,
preserves, public use areas, recreation rivers, and recreational
mining areas which total nearly 12-million acres of "designated
lands and waters" throughout the state. Each of the "designated
lands and waters" areas were designated by legislative approval,
not through executive or agency fiat.
He noted that Alaskan voters have also spoken clearly on where
the ultimate authority for land-and-water-use designations
should reside. In 2014, voters approved by a margin of nearly
two-to-one the "Bristol Bay Forever" initiative which was
designed to give the legislature final say in whether to allow
the development of large-scale-mining projects in the Bristol
Bay area. SB 51 simply continues the strong precedent of
ensuring significant land-and-water-use decisions; in this case,
Tier 3 water body designations reside in the hands of the
legislature. A Tier 3 designation bestows the highest level of
water quality protection under the federal Clean Water Act.
MR. FULTON noted that in 1983, the Environmental Protection
Agency (EPA) defined Tier 3 waters as, "Waters of exceptional,
recreational, or ecological significance" in which water quality
shall be maintained and protected from degradation in
perpetuity. The EPA further mandated that each state establish a
process for designating "outstanding national resource waters"
(ONRW).
He said currently, the State of Alaska has no formal process for
designating Tier 3 waters; this puts the state at risk of
violating the Clean Water Act, opens the possibility of the EPA
imposing their own designation process, and leaves stakeholders,
both developers and conservationists alike, with uncertainty
about the ONRW designation process.
He set forth that SB 51 solves the designation problem by
codifying a Tier 3 designation process consistent with how lands
and waters of the state have always been designated for
conservation by legislative approval rather than departmental
decision; however, SB 51 does not entirely exclude departments
from these important decisions.
He explained that by law, the Department of Environmental
Conservation (DEC) is the state agency responsible for meeting
Clean Water Act requirements and for establishing the Tier 3
designation. By requiring DEC to consult with the Alaska
Department of Natural Resources (DNR) for evaluation impacts on
land uses and the Alaska Department of Fish and Game for the
evaluation of impacts to habitat and wildlife prior to setting a
Tier 3 recommendation to the legislature, SB 51 also ensures
that Tier 3 nominations benefit from scientific scrutiny and
technical review by the appropriate executive branch subject
matter experts.
He said Tier 3 designation could be an important tool for the
protection of human and environmental health; however, such a
designation is a significant policy decision that could restrict
a range of activities not only on state waterbodies but also on
adjacent lands. Mining activity and other large scale resource
development projects would obviously be impacted by Tier 3
designations, but other examples of perhaps less considered
activities would include road and building construction, motor
boats, seafood processing, municipal wastewater discharge,
residential and commercial septic systems, stormwater
discharges, landfills, timber harvesting, and quarries and
gravel pits located near Tier 3 watersheds. Such wide-ranging
impacts effectively make Tier 3 designation a de facto land-use
decision; as such, the final decision for Tier 3 designation
should properly and definitively reside in the hands of the
legislature, SB 51 does just that.
3:37:38 PM
CHAIR BIRCH announced that Senator Reinbold is online.
SENATOR REINBOLD confirmed being online.
SENATOR KAWASAKI pointed out that Alaska is not the only state
that is taking over primacy with respect to water. He asked how
other states have decided to nominate Tier 3 designations.
MR. FULTON referenced a "frequently asked questions" document
for SB 51 that addressed Tier 3 designations in other states as
follows:
Examples from other states include waters that are
part of national or state parks, wildlife refuge or
wilderness areas, special trout waters, federal Wild
and Scenic Rivers or other unique waters. States
including Washington, Idaho, and Nevada have not
designated any ONRWs; Oregon has designated one;
California has designated two; all waters in national
parks are ONRWs in Montana; and Arizona has designated
22 waters as ONRWs.
He pointed out that Alaska's constitution is different than any
other state. The Alaska Constitution explicitly states that the
designation decision process should be a legislative process.
SENATOR KAWASAKI asked if the bill sponsor is taking the
constitutional requirement in Article 7 to deal specifically
that every time something comes up the legislature has to do it,
or in other parts of the constitution it says the legislature
has the responsibility for supporting education; however, it
does not mean that the legislature does it every time, it means
that the legislature creates the body of law and the
administration implements it.
3:39:58 PM
MR. FULTON replied that the Alaska Constitution's mandate places
the decision in the hands of the legislature.
SENATOR KAWASAKI opined that the decision is more of a policy
call where alternatively, like other states that were mentioned,
the state could create the law. He noted that Mr. Fulton
mentioned that designation was an important policy decision
where a law is created. He pointed out that alternatively, the
legislature could proceed in a different way where it can veto a
designation by DEC. He opined that it is the chair's prerogative
to consider alternatives.
CHAIR BIRCH explained that the objective is to try and identify
a path forward that would recognize and respect the importance
of having a process identified as well as the people identified
that would want to participate. He remarked that given the
importance and magnitude of designation decisions as well as
being consistent with other aspects of the state's code, going
back to the legislature seems like the right thing to do.
SENATOR KIEHL noted that Mr. Fulton used the phrase "perpetuity"
in his overview. He said he had not seen the use of "perpetuity"
in his research on prior legislation. He pointed out that the
American College of Environmental Lawyers have said they did not
believe the designations were in "perpetuity." He asked Mr.
Fulton to explain the notion that a Tier 3 designation would be
irrevocable.
MR. FULTON explained that when he says, "in perpetuity," just as
any bill enacted by the legislature can be undone by a future
legislature or alternatively by a voter initiative, it would not
be in perpetuity in the sense that it would go counter to that.
He said as far as the permanence of the designation outside of
the legislative process, the Clean Water Act, 40 CFR 131.12, is
the federal regulation code where the Tier 3 designation process
stems from. The code essentially reads that Tier 3 waters would
have to be maintained and protected; however, the code does not
explicitly say "in perpetuity," but the code does set up an
anti-degradation policy that says nothing can be contributed to
the designated water beyond a limited duration that would cause
more or less permanent degradation to the water, noting that
there is no timeframe on a short-term duration. He summarized
that "in perpetuity" is implied.
3:43:59 PM
SENATOR KIEHL replied that he read Mr. Fulton's explanation
differently regarding "short term" versus "permanent"
degradation. He noted that Mr. Fulton also mentioned that Tier 3
designations would stop roadbuilding, but the bill's "frequently
asked question" document as well as the EPA's website mentioned
temporary degradation, like roadwork, would be allowed.
3:44:31 PM
SENATOR BISHOP joined the committee meeting.
MR. FULTON specified that his intent was to say that the
potential to impact road construction activities would depend on
the duration and the runoff from the road construction
activities; however, just as any large-scale resource
development project could impact water quality, so can a road
construction project.
SENATOR KIEHL addressed Article 2 in the Alaska Constitution
regarding constraint on the legislature's power to pass a bill,
noting that the bill states that the legislature cannot consider
designation without commissioner approval.
MR. FULTON explained that the sponsor's intent is that the bill
would not tie the hands of a future legislature. Per discussions
with Legislative Legal, SB 51 would not tie the hands of a
future legislature. The process that SB 51 creates could be
circumvented by any legislator at any time. SB 51 would not
prohibit an individual legislator or a committee from
introducing a bill to nominate a water body as Tier 3.
SENATOR KIEHL asked why the step in the legislation.
MR. FULTON asked if he was referring to the three resource
departments that would be included in the conversation.
SENATOR KIEHL answered yes.
MR. FULTON explained that it adds a level of scientific scrutiny
and subject matter expertise to the process that is much needed.
The legislature does not necessarily have the same resources
that the departments have to give the subject matter a fair
shake.
3:47:12 PM
SENATOR COGHILL expressed appreciation for Senator Kiehl's
questions. He opined that the expectation is the legislature
could designate as well as un-designate. Having a by-law
requirement is the better way to designate; for example, putting
a park system together where the legislature could undo some
parks too. He asked if the Tier 3 designation is something that
the federal government says, "This is what it is, we can accept
it or not, but once that designation is given it's really under
the requirements of the federal law."
MR. FULTON explained that the EPA would sign off on the
designation process, not on a designation of a specific water
body.
SENATOR COGHILL asked him to confirm that the state would have
to follow the federal rule regarding degradation requirements
once a designation is established.
MR. FULTON deferred the question to the department.
SENATOR COGHILL inquired how flexible a designation is. "Do we
always have to say what the Clean Water Act says or do we have
flexibility?"
3:49:24 PM
ANDREW SAYERS-FAY, Director, Division of Water, Alaska
Department of Environmental Conservation, Juneau, Alaska,
explained that the federal government sets up the requirements
once a Tier 3 designation occurs. The designation does not tie
the hands of a future legislature. In conversations with the
EPA, the agency made it clear that the intent for a designation
by law be in perpetuity, but the state legislature can choose in
the future to change the designation. He noted that the
designation only allows temporary and limited degradation in a
Tier 3 water.
SENATOR GIESSEL noted that a similar bill was entertained by the
Senate Resources Committee in 2016 where DEC indicated that
there is not federal regulation or guidance specifically
addressing how or whether a state's Tier 3 designation can be
reversed or modified. The EPA has said there is no federal
regulation regarding Tier 3 reversal or modification. She said
it sounds like the state could reverse. She asked if her
recollection was correct that Montana added reversibility to
Tier 3 water designation.
MR. SAYERS-FAY answered that he would follow up with the
information. He explained that when the EPA approves a
designation process, the agency expects that the designation
will be followed.
3:52:24 PM
SENATOR GIESSEL asked how many states have not completed a Tier
3 designation process.
MR. SAYERS-FAY answered that he did not have an answer.
CHAIR BIRCH announced that SB 51 will be held in committee. He
said his intent is to bring SB 51 back up for consideration on
March 20 where public testimony will be heard.
3:53:21 PM
SENATOR KAWASAKI asked to put questions on the record so that
committee members can get answers at the bill's next hearing. He
referenced a new section that the bill will add to AS 46.03 as
follows:
• AS 46.03.085 (b):
o The department shall accept nominations of water for
designation as outstanding national resource water.
The department may forward a nomination for
outstanding national resource water to the legislature
only if the department, the Department of Fish and
Game, and the Department of Natural Resources agree to
recommend designation of the water to the legislature.
He noted Senator Kiehl's question regarding the legality of
whether the new section meant that the legislature cannot bring
something forward. He asked that the committee receive a legal
opinion on the proposed section.
He referenced similar legislation in 2016 where a list of
nomination criteria was enumerated that included: relatively
pristine condition; and exceptional ecological, economic, or
recreational significance. He asked why the list in the Code of
Federal Regulation (CFR) is not being used for the criteria in
SB 51.
3:55:39 PM
MR. FULTON answered that the legality issue that Senator
Kawasaki questioned is being addressed and something will be
shared with the committee when the bill is heard again. He
addressed the second question on why a list of nomination
criteria was not listed in SB 51 and explained that the
sponsor's intent is to start with something cleaner and build
from there, perhaps leaving the criteria questions to be
answered in regulation.
SENATOR KAWASAKI asked what other states do and if there are a
number of states that do not currently have Tier 3 water
nominations in their state statute and who does that in lieu of
the Tier 3 nominating process.
MR. FULTON replied that he will get back to Senator Kawasaki.
3:57:40 PM
MR. SAYERS-FAY explained that all states are under the
obligation to have a Tier 3 designation process and so states
over time have been fulfilling that obligation, the remaining
states that do not have one are still working towards that. He
said the division will get back to Senator Kawasaki on what
processes the states that have adopted something looks like.
SENATOR KAWASAKI addressed a memo that states DEC has some
statutory authority under the Clean Water Act and whether the
statute language in SB 51 is necessary or if the department can
do the nominating process on their own through regulation.
MR. FULTON answered that it is the sponsor's understanding that
DEC could have the authority on their own without SB 51, but the
larger question pertains to satisfying the constitutional
mandate regarding large, significant land and water use
decisions are ultimately being decided by the legislature as per
the 118 other land-use designations that are legislatively
designated land units.
3:59:45 PM
SENATOR GIESSEL addressed the bill's "frequently asked
questions" document and noted that there are five nominated Tier
3 water designations. She surmised that the legislature would
take the five nominations and determine whether the designations
should be adopted as Tier 3 water.
MR. FULTON answered yes.
MR. SAYERS-FAY concurred with Senator Giessel and explained that
the federal requirements under the Clean Water Act dictate that
a designation process be in place. DEC has received nominations,
but the department does not have a process to address them. He
detailed that amendments have been made to the Clean Water Act
over time so the authority that the department may have been
granted raises the question as to the legislature's intent to
grant DEC the authority to designate a Tier 3 water, that is why
the department has not felt comfortable on the question of
designation. He said the department thinks that the legislature
should be on the record to make a designation.
4:01:44 PM
SENATOR COGHILL emphasized that legislators are the trustees of
the public's trust doctrine, both in the state's constitution
and in case law.
SENATOR KIEHL asked Mr. Fulton to address the sponsor's intent
that the legislature is making land-use decisions.
MR. FULTON answered that the sponsor's belief is that because
Tier 3 water designations could have such significant impacts on
land-use activities, they are de facto land-use decisions. The
regulations requiring the state to have a Tier 3 designation
process in place speaks specifically to water quality standards,
but the implications are much larger than that.
SENATOR COGHILL explained that that a Tier 3 designation
prohibits any new activities and expansion of existing
activities that changes the water quality. He pointed out that
Alaska has a lot of land around a lot of water.
SENATOR KIEHL noted earlier testimony about what expertise the
legislature and the agencies have. He said he is concerned for
the future of water where decisions are made based on land use.
4:04:25 PM
CHAIR BIRCH held SB 51 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB51 Sponsor Statement.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB 51 Version K.PDF |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 Fiscal Note DEC-WIF 3.8.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 Fiscal Note DFG-CO 3.8.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 Fiscal Note DNR-MLW 3.10.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 DEC ONRW FAQ 3.14.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 DNR Fact Sheet Legislatively Designated Areas.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 AML Letter 3.13.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 Elisabeth Genaux Email 2.27.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 Bonnie Demerjian Email 2.26.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |
| SB51 Joel Hubbard Email 2.26.19.pdf |
SRES 3/15/2019 3:30:00 PM |
SB 51 |