Legislature(2019 - 2020)BUTROVICH 205
03/27/2019 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB51 | |
| SB42 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 51 | TELECONFERENCED | |
| *+ | SB 42 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 51-NATL. RES. WATER NOMINATION/DESIGNATION
3:31:16 PM
CHAIR BIRCH announced the consideration of Senate Bill 51 (SB
51). He said his intent is to adopt a committee substitute (CS)
and report the bill on to the next committee of referral.
3:31:51 PM
SENATOR COGHILL moved to adopt the proposed CS for SB 51,
labeled 31-LS0375\R, as the working document of the committee.
SENATOR GIESSEL objected for discussion purposes.
3:32:14 PM
TREVOR FULTON, Staff, Senator Birch, Alaska State Legislature,
Juneau, Alaska, explained that there are two changes in the
Version R CS for SB 51. He said the first change is cleanup
recommended by Legislative Legal. On page 1, line 11, delete
"and this section," which was a vestige from a previous draft of
the bill.
He explained that the second, more substantive, change begins on
page 1, line 12, and encompasses the entire subsection (b). The
change was in response to concern that the old subsection (b)
may have diluted the sponsor's intent that the legislature has
the final decision as to whether to designate an outstanding
national resource water. The old subsection (b) required the
Alaska Department of Environmental Conservation (DEC), Alaska
Department of Natural Resources (DNR), and the Alaska Department
of Fish and Game (ADFG) to unanimously agree on a nomination
prior to forwarding it to the legislature; however, a decision
by the departments not to forward a nomination could be
construed as precluding a decision by the legislature which was
not the intent of the bill. The new subsection (b) requires that
all nominations be forwarded, not just those recommendations by
the departments, in an annual report to the legislature. The
annual report does not constitute an appealable, final agency
decision.
3:32:36 PM
SENATOR BISHOP joined the committee meeting.
MR. FULTON summarized that the intent of the CS is to maintain
the benefit of having the three resource departments lend a
minimum level of scientific review and subject matter expertise
to Tier 3 water nominations while reinforcing the final
authority for Tier 3 designation lies in the hands of the
legislature.
CHAIR BIRCH asked Senator Giessel if she maintains her
objection.
3:34:14 PM
SENATOR GIESSEL removed her objection.
CHAIR BIRCH announced that that the Version R CS for SB 51 is
adopted.
SENATOR GIESSEL said she had requested that the Legislative
Legal bill drafter and the Department of Law be available during
the committee meeting. She explained that she has four areas of
questions.
She asked Emily Nauman with Legal Services to address the CS for
SB 51. She said the CS does not reference the legislature as the
body that would make the determination. The CS only says on page
1, line 11, "only by law." She said her understanding of "by
law" would mean a bill passed by the legislature and signed by
the governor or it could mean "by initiative." She added that
her understanding is the Alaska Constitution disallows
initiatives that appropriate. She said she believes SB 51 is
appropriating a resource of the state. She asked if a
designation of water constitutes an appropriation per the
constitution and therefore would be ineligible to be made by
initiative.
3:36:03 PM
EMILY NAUMAN, Legislative Counsel, Legal Services, Division of
Legal and Research Services, Legislative Affairs Agency, Alaska
State Legislature, Juneau, Alaska, answered that Senator Giessel
is correct; by law the designation encompasses both an act
passed by the legislature, signed by the governor and an
initiative. She said she will follow up, but her initial
reaction is the bill is not an appropriation because the
legislature is not giving the land to someone or making an
allocation of an asset. The legislature is just submitting to
more stringent water quality standards.
SENATOR GIESSEL countered that the designation of the water
changes the ability of the land that is adjacent to that water
body to be utilized in certain ways, thereby appropriating the
land.
MS. NAUMAN replied that she does not see the bill as an
appropriation but will look further into the issue.
SENATOR GIESSEL asked to hear from the Department of Law on the
subject.
3:38:01 PM
JENNIFER CURRIE, Assistant Attorney General, Alaska Department
of Law, Juneau, Alaska, said she will have to do some additional
research to make a determination because she is not sure.
SENATOR GIESSEL emphasized that the committee needs to be aware
of the appropriation issue.
She asked Ms. Nauman to address on line 11 in the bill, the word
"law" within the phrase "only by law". She noted that
regulations have the force of law and asked if the phrase could
be interpreted to mean the Department of Environmental
Conservation (DEC) could pass regulations that would put in
place a designation of Tier 3 waters and thereby have a force of
law.
MS. NAUMAN responded that she would have to take a moment to
process the question prior to answering.
SENATOR COGHILL suggested that the committee look at art. XII,
sec. 11 of the Alaska Constitution because an initiative is
allowed. He added that there was also a court case where the
intent was to give land to the university, but the land was an
appropriation which barred the transaction.
MS. NAUMAN answered that Senator Giessel is correct that
regulations commonly are described as law and she will get back
to the committee on the effect of "only by law" and whether the
section could be interpreted as the department adopting
regulations.
3:40:17 PM
SENATOR GIESSEL directed attention to page 1, line 12 that says,
"The department may accept an application for a nomination." She
said the original version of SB 51 said the department shall
accept nominations, whereas the CS says the department is
accepting applications for nominations. She asked Ms. Nauman
what the difference is between the application and the
nomination because it sounds like another step.
MS. NAUMAN replied that she does not see the application for
nomination as another step other than to possibly differentiate
the fact that there might need to be some paperwork filled out
or some minimum requirement for a nomination to become complete
and therefore that would become sort of an application.
SENATOR GIESSEL asked if the department would therefore have to
approve an application for a designation to become a nomination.
MS. NAUMAN replied that inquiry is not specified in the bill.
SENATOR GIESSEL remarked that there was a gap. She said the CS
requires the department to make a recommendation about the
nominations. Page 2, line 3 says, "The report must provide a
recommendation regarding whether each nominated water should be
designated as outstanding national resource water." She asked if
"no recommendation" is among the options for the department.
MS. NAUMAN answered that the bill states that the report must
provide a recommendation so the department could provide "no
recommendation" and not be in a substantial violation of the
section; that response would be based on the department's
interpretation that they must provide a recommendation and
whether or not no recommendation was actually some sort of form
of not having an opinion either way.
3:42:46 PM
SENATOR GIESSEL asked what the legal significance of a
recommendation is and if it is appealable. She inquired what
would happen if the department recommend" and the legislature
takes an opposite action.
MS. NAUMAN answered that the recommendation she envisions is the
department provides a possible supported, researched opinion
about whether the water qualifies for the Tier 3 designation or
whether it is worthy of the Tier 3 designation. The legislature
is free to disregard a recommendation or follow a
recommendation. The recommendation by the department does not
bind the legislature in any way. In fact, the legislature could
consider any body of water for a Tier 3 designation regardless
of whether a recommendation was passed on from the department.
She said regarding the question about whether the recommendation
is a final decision, the language on page 2, lines 7-10 says,
"The preparation and delivery of a report under this subsection
does not constitute a final agency decision or action, and the
recommendation is not subject to appeal, including appeal or
review under AS 44.62 (Administrative Procedure Act)." attempted
to foreclose that. It clarifies that it is not the opinion of
the legislature that the recommendation is the final action on a
decision whether to designate a body of water as outstanding
national resource water. That decision is actually being taken
up by the legislature.
3:44:22 PM
SENATOR GIESSEL read the language on page 2, line 9, "the
recommendation is not subject to appeal, including appeal or
review under AS 44.62 (Administrative Procedure Act)." She said
the question is what is the legal significance of
"recommendation." She inquired if someone can protest or sue if
the legislature were to refuse to take up the bill or to reach a
conclusion that was different than the report's recommendation.
MS. NAUMAN replied that people sue all of time about almost
everything, it's why most of the world's lawyers are employed,
but to the extent that the legislature takes up or does not take
up any matter is a matter of the legislature's prerogative and
that argument can be made about any action of the legislature.
The legislative powers are a constitutional one that is inherent
in the body's ability to pass or not pass any piece of
legislation. She opined that she does not see a successful
lawsuit of someone suing over the legislature's decision on the
department's recommendation.
SENATOR GIESSEL asked Ms. Currie for her thoughts on the legal
significance of a recommendation.
MS. CURRIE answered that she agreed with Ms. Nauman that a
recommendation is merely the opinion given by the different
resource agencies and that the legislature is free to use or not
use the departmental recommendations to make its decision.
3:46:23 PM
SENATOR GIESSEL asked Ms. Currie to confirm that the
recommendation would not hold legal binding status.
MS. CURRIE answered no, especially with the wording regarding it
not being an appealable decision. She noted that the original
legislation stated that if the resource agencies had a negative
recommendation that it would not go any further; however, the
goal was to make sure the legislature makes that decision and
not the resource agencies, so that language was taken out so
that all recommendations have to be forwarded to the legislative
body.
SENATOR GIESSEL said her fourth topic has to do with the
permanence of the designation. A similar bill was heard in 2016
and at that time the Senate Resources Committee questioned DEC
as to the question of "permanence." She said she inquired if the
declaration of Tier 3 waters is a permanent designation in
perpetuity. She noted the committee's letter back from the
commissioner stated that he did not think the designation is
permanent and yet at the same time the EPA itself could not give
a clear answer on the designation. She asked if the legislature
could repeal the designation by repealing the law and what would
the options be for the EPA in the future if they were to contest
the state's decision and even go so far as repealing Alaska's
primacy over waters. She inquired if the Department of Law has
experience with the EPA regarding the declaration of Tier 3
waters and its permanency.
MS. CURRIE replied that the Department of Law is aware of two
states that currently have regulations that allow a de-
designation of a Tier 3 water; however, the department does not
know whether the de-designation has ever been attempted. She
said she does not think that categorially the EPA has said there
is no process for de-designation because they would have had to
approve those regulations. She deferred to Andrew Sayers-Fay
with DEC to talk about EPA's role in de-designating if the state
were to designate a water.
3:49:50 PM
ANDREW SAYERS-FAY, Director, Division of Water, Alaska
Department of Environmental Conservation, Juneau, Alaska,
explained that since 2016, the division has had some follow-up
conversations with the EPA about the ability to de-designate a
Tier 3 or an outstanding national resource water body. The EPA
conveyed that they do not see anything that prohibits a state
from taking the de-designation action. The division has not
gotten into the nuances of how the de-designation process would
work or what role the EPA may or may not play if the state took
a de-designation action.
SENATOR GIESSEL asked Mr. Sayers-Fay if the communication with
the EPA is in writing.
MR. SAYERS-FAY replied that there is one email that he has
received from a staff member at EPA Region 10 about the de-
designation topic. He explained that the EPA staff member
referenced what other states have done. He said he does not have
the follow-up email to verify that the division has received
further information.
SENATOR GIESSEL said she appreciates the fact that the committee
has an email from a staffer at DEC, but she is not consoled by
the email. She stated that she would be interested to know if
DEC could get a letter from the head person from the EPA
indicating whether the designation was in fact revocable.
3:51:35 PM
SENATOR BISHOP said he would have more comfort with a law passed
by Congress that addressed a designation's revocability. He
remarked that he does not care what the EPA director says
because of the changes a new administration can make with a new
director and a new directive.
SENATOR GIESSEL said she has concern about the cost associated
with the bill. She assumed that the three resource departments
would have to do some analysis before a recommendation is made.
She inquired if DEC has any estimate on what an analysis would
cost before the department would make a recommendation.
MR. SAYERS-FAY replied that the bill, as written, envisions the
departments' analysis is done for the benefit of the legislature
to make a decision about a nomination and so the depth and
direction of what is being asked for by the legislature would
determine the level of cost and if there was an actual bill that
raised Tier 3 issue, the legislature could provide further
direction on what issues needed to be looked at or to what
degree.
3:54:03 PM
SENATOR GIESSEL asked him to confirm that DEC would make a
recommendation not knowing the degree of pristineness, not
knowing what kind of work is going on upstream, what kind of
uses of the water. She inquired if the work she previously noted
would have to be done before DEC makes a recommendation to
establish a Tier 3 water.
MR. SAYERS-FAY replied that there is more than one path to
answer the recommendation process. In a previous version of
proposed regulation, DEC enumerated several things the
department thought worthy of consideration. If SB 51 were to
pass, DEC would look into whether or not there is a need to
establish regulations again and the department would probably
answer those types of questions because those issues were raised
due to the impact that Tier 3 designation has for water quality
and then for any discharges to that water body and the potential
to impact tributaries flowing into that water body, there are a
number of questions that would naturally exist about what are
the uses and what are the potential impacts, DEC would
definitely start down that path. He said he previously addressed
in a previously proposed bill that the possibility that the
legislature could also provide additional direction for DEC to
look at specific issues.
MR. FULTON addressed Senator Giessel's question on the sponsor's
intent as far as who bears the cost of application or
nomination. He specified that the sponsor's intent in drafting
the bill is that the applicant will bear most of the cost as
clearly reflected in the department's zero fiscal note. Most of
the departmental costs would probably be associated with
collecting a certain level of water quality data proving there
is stakeholder and community support for the Tier 3 nomination,
and then whatever else is needed to prove.
3:57:05 PM
At ease.
3:57:20 PM
CHAIR BIRCH called the committee back to order.
MR. FULTON continued that the departmental costs will include
anything else required to prove that a water body is
ecologically and or recreationally significant, which is the
definition of a Tier 3 water body by the EPA. He reiterated that
the costs will be borne by the applicant as reflected in the
zero fiscal note presented by the department.
SENATOR GIESSEL remarked that one of the things that Congress
has realized is the fact that they abdicate their responsibility
when they write something very broadly and then expect the
departments to write regulations. She admitted that often the
Alaska Legislature has also written regulations that do not
reflect a bill's intent by not being specific. She said her
concern is leaving the decision to a departmental commissioner
or whoever happens to be the regulation writer at the time.
SENATOR KAWASAKI noted that the bill changed a lot between the
Version K and the version R. He pointed out that the original
fiscal note says, "The department shall accept nominations and
the department may forward those nominations to the
legislature." Version R says, "The department may accept an
application, that they shall prepare a report." He opined that
the two versions are very different, and the fiscal note ought
to reflect the change. He asked for an explanation of the
change.
3:59:55 PM
MR. SAYERS-FAY answered that the original language was the
department shall accept a nomination. The only significance in
the change in language is that if there was further direction
from the legislature or regulations that indicated a minimum
amount of information that was needed and that was not submitted
with the nomination, that that might provide a basis with the
new language for the department to not accept that nomination;
but, absent that the language is fairly similar in its intent
for the department to receive a nomination, reviews it, and
provides a report.
MR. FULTON addressed Senator Kawasaki and said as to the
question regarding "may" versus "shall," he noted that he had a
conversation with the legislature's attorney about the exact
subject regarding when the department "shall" accept a
nomination, that "shall" leaves the form of a nomination to be
very broadly interpreted, but "may" gives a department some
level of discretion as to whether or not the package fulfills a
certain criteria that the sponsor is looking for in a proper
nomination.
SENATOR COGHILL asked if the first thing that would be looked at
is the federal register on what the requirements of Tier 3.
MR. FULTON deferred the question to the department. He noted
that the federal register is vague in terms of what constitutes
an outstanding national resource water and his thought is the
register just says the water must be recreationally and
ecologically significant.
4:02:40 PM
SENATOR COGHILL remarked that looking at the register first
might make a difference to the legislature. He noted in a
footnote under are. XI, sec. 7 of the Alaska constitution that
says, "If it infringes on the legislature's ability to allocate
resources among competing uses, then it fails to ensure that the
legislature and only the legislature retains control over the
allocation." He opined that there is some case law that is
beginning to show that if the state restricts uses there may be
a significant issue between Alaska and the federal government.
He said the legislature needs to make sure that the tension is
properly described.
CHAIR BIRCH noted that there was testimony earlier in the
regarding the fact that DEC has adopted water quality standards
that relate to how the proposed legislation will be executed.
The regulatory package speaks to the Tier 3 analysis process for
the protection of water quality and outstanding natural resource
water.
SENATOR BISHOP noted that Senator Kawasaki addressed the fiscal
notes for the Version K and the Version R. He said common sense
dictates that there is an application process where nomination
is set at a high bar that is backed with science. He opined that
even though the study is paid for by the applicant, there needs
to be a number associated with the fiscal notes.
4:05:02 PM
SENATOR KIEHL said the phrase that reoccurs in statute when
talking about the quality of an application is "shall accept" as
opposed to "may accept." He asked why the sponsor settled on
"may accept" instead of letting the department say what quality
standards need to be met in the application.
MR. FULTON replied that the discussion did not go beyond what
has already been explained.
SENATOR KIEHL said he is still not clear on what standards the
department will use to evaluate the recommendations. He said he
appreciates the proposed anti-degradation regulation but
continues to question what standards the legislature will use to
tell the three commissioners to apply when they make a
recommendation to the legislature for designation.
MR. FULTON answered that that the regulation package does not
describe those standards and that is something the legislature
may not want to prescribe in law because the department would be
fully capable of doing so in regulation. He explained that part
of the reason why the sponsor wants the three departments
involved in the designation process is for a certain level of
scientific review in subject matter expertise. He said the
sponsor is more comfortable deferring review to the departments
for recommendation only, not for the final decision which will
continue to be made by the legislature.
4:08:01 PM
CHAIR BIRCH read the following:
We did not receive amendments prior to yesterday's
deadline, I would remind members as per the discussion
any amendments, sponsor substitutes, blank committee
substitutes, handouts or other documents you list,
placed before the committee need to be delivered no
less than 24 hours prior to the scheduled hearing
discussed in advance.
He said he did not see any additional amendments, questions or
comments and asked if the committee is ready for a motion.
SENATOR KAWASAKI asked if the committee will have discussion
time. He pointed out that the previously noted amendment policy
says amendments "should be submitted" and questioned the limited
time for offering amendments based on the recent bill revision.
He said he has lots of concerns with the legislation and noted
that the Senate Resources Committee is the substantive policy
committee versus the Senate Finance Committee. He remarked that
he feels uncomfortable moving the bill without having more
discussions on some of the concerns addressed during the
hearing. He noted that he has an amendment packet for the bill.
4:10:35 PM
SENATOR GIESSEL said she had questions for the Department of
Law, DEC, and the drafter. She noted that questions about the
cost to apply the regulations that have been drafted have not
been answered. Also, some attorneys do not think there is an
allocation issue but earlier testimony indicated this is similar
to designating parks, which removes land from use. She said she
understands that the goal of the legislation is to put a process
in place to satisfy the EPA. She said she would argue that the
EPA is out of line in commandeering the state and requiring
something, but that is another issue. She said she believes that
a much simpler version of the bill would meet the EPA's
requirement that the state have a policy in place.
4:11:54 PM
SENATOR GIESSEL offered Conceptual Amendment 1 as follows:
My conceptual amendment is simple, it would take on
page 1, line 11, it would cross out the word "law" and
it would substitute two words, "the legislature." The
line would read, "regulation, only by the
legislature."
Then, my conceptual amendment would go forward to
delete, page 1 lines 12-13, and page 2 lines 1-10,
leaving in place only subsection (c), "Water of the
state may not be managed as outstanding national
resource waster unless the water has been designated
as outstanding national resource way under (a) of this
section." and leaving in place section 2.
The conceptual amendment would clearly define that the
process will go through the legislature, but all the
other details, we need a more substantive discussion
and more legal information.
4:13:01 PM
At ease.
4:13:30 PM
CHAIR BIRCH called the committee back to order.
SENATOR COGHILL objected to Conceptual Amendment 1. He explained
that the amendment is substantive and should be introduced in
writing for further debate. He said he tended to agree with the
amendment, but the committee needs the written version as well
as giving other amendments a chance to come up for debate.
CHAIR BIRCH concurred with Senator Coghill.
SENATOR GIESSEL requested a written opinion from both the
Department of Law and Legislative Legal regarding whether the
bill is an allocation of state resources, an allocation of land,
and whether the process could be in fact done by regulation. She
asked that in addition to the written opinion that the
ramification from a "no recommendation" or a negative action
from the legislature saying no be explained as well.
4:14:38 PM
SENATOR GIESSEL withdrew Conceptual Amendment 1.
CHAIR BIRCH added that the committee will have an opportunity to
look at how the current water quality regulations are to be
integrated with the legislation.
SENATOR REINBOLD concurred with Senator Giessel that the
legislation is an appropriation.
4:15:16 PM
CHAIR BIRCH held SB 51 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB42 Aguilar Cases in Alaska 2014.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Fiscal Note DNR-MLW 3.22.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Sectional Analysis Version A.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Sponsor Statement.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Tanana Chiefs Letter 3.22.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Version A.PDF |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Aguilar v. U.S..pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB 51 Version R 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Changes Version K to Version R.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 18 AAC 70.016.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 AFA Resolution 3.12.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Brenda Jones Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Gerald Lapp Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Jessie Badger Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Jim Clark Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Laura Stats Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Mickael Mackowiak Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Guy Archibald Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Petition 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Sarah Davidson Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEAFA Letter 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Steve Winker Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |