Legislature(2013 - 2014)
04/12/2013 01:12 AM House FIN
| Audio | Topic |
|---|---|
| Start | |
| SB83 | |
| SB65 | |
| SB27 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 27
"An Act establishing authority for the state to
evaluate and seek primacy for administering the
regulatory program for dredge and fill activities
allowed to individual states under federal law and
relating to the authority; and providing for an
effective date."
1:42:39 AM
LARRY HARTIG, COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, explained that the bill utilized a provision
in the Federal Clean Water Act that allowed states to take
primacy of one of the key permitting programs under the
Clean Water Act, known as the dredge and fill program or
404 section. The federal government would retain a portion
of the primacy. He opined that the state ought to seek
primacy because the bulk of the nation's wetlands were in
Alaska and most state projects required a 404 permit. The
bill established a two-stage process. The first stage
provided close review of the cost and benefits of state
primacy. The legislature would review the final application
for primacy, following the thorough review.
Commissioner Hartig stated that the process might encompass
a period of five years. By approving SB 27, the state would
not commit to 404, but instead a close review of the very
important permitting program under the Clean Water Act.
1:45:56 AM
Representative Gara clarified that the bill did not
authorize state primacy, but instead allowed the state to
seek it. He mentioned page 4, paragraph 14, which stated
that all actions could be taken to enforce the primacy
program.
Commissioner Hartig responded that complete applications
must be submitted with all statutes and regulations in
place. The regulatory process must be initiated and the
staff hired. He added that the legislature was the
gatekeeper. The bill authorized completion of the
application for primacy, but the legislature must review
the process prior to its submission.
Representative Gara noted that line 33 stated that the
department had the ability to implement the program is
authorized. Commissioner Hartig replied that the statutes
and staff must be in order prior to presenting the
application. The department was unsure of the exact number
of people required to run the program. The fiscal note
attached to the legislation provided for program review,
but not the money needed to run the program.
Representative Gara asked if $2.3 million per year was not
enough, what it would cost to run the program.
1:49:53 AM
Commissioner Hartig stated that the fiscal note was $1.4
million. Some of the money was allocated to Department of
Natural Resources. The ultimate cost of pursuing primacy
was difficult to calculate as multiple variables were
unknown.
Representative Gara noted that $1.4 million for FY 14 with
$1.5 million for the next 5 years. He asked if the money
would be spent seeking primacy.
Commissioner Hartig replied that the best time-estimate was
two or three years. He anticipated that the departments
would revisit the legislature with information regarding
the benefits of primacy. He noted that the bill provided
the ability to work with the Army Corps of Engineers to
identify the programmatic general permits.
1:52:51 AM
Representative Kawasaki asked if the 402 permitting process
was similar to the 404. Commissioner Hartig replied yes.
Representative Kawasaki asked about what the state would
get for $9 million and what full-primacy would cost. He
asked if the costs required for the 402 process were
similar to the anticipated costs. Commissioner Hartig
responded that the department worked with the Environmental
Protection Agency (EPA) to determine the number of
necessary position. He recalled that the estimates were
inaccurate and the department required additional funds to
provide for staff needs. He noted that the growth in Alaska
permitting existed in some areas, which required program
expansion.
MICHELLE BONNET HALE, DIRECTOR, WATER QUALITY DIVISION,
DEPARTMENT OF ENVIRONMENTAL CONSERVATION, estimated that
the 402 program had the advantage of incumbent staff
involved in waste water permitting working for DEC's state
program. The 404 program, in contrast would be built from
scratch. She noted that the 402 legislation required the
addition of $1.5 million and 13 new positions for a total
of $4.8 million and 43 positions.
Representative Kawasaki reviewed the history of permits
processed and noted that the processing time for permits
met the national standard. He wondered about the benefits
of primacy anticipated when permits were already processed
in ample time.
1:57:20 AM
ED FOGELS, DEPUTY COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES, discussed the dredge and fill program. He
pointed out that the value of primacy influenced the
quality of the permitting decisions rather than the
timeliness of the process. He believed that having state
agencies make the decisions would allow flexibility to
adapt to Alaskan conditions.
Mr. Fogels opined that misconceptions regarding the
interpretation of information.
Ms. Hale agreed and stated that she had reviewed the data
regarding the programs. She learned that 67 percent of the
permits were processed in less than 120 days. She noted
that 134 individual permits took longer than 120 days to
process. She mentioned reports indicating that a United
State Army Corp of Engineers' permit took 150 days to
process.
Representative Kawasaki asked how many permits would be
regulated through the state. Ms. Hale replied that the bill
would allow and provide the analysis requested regarding
the number of permits regulated by state agencies.
Mr. Fogels added that the department had reviewed the
provisions of the Clean Water Act and the intent was to
gain primacy over most wetlands in Alaska.
2:01:24 AM
Co-Chair Austerman asked about a U. S. Army Corps of
Engineers Nationwide Permit (NWP) 29. He thought that the
permit allowed up to one half acre. He wondered if the
permit would be transferred to the state or remains with
the Army Corps of Engineers. Commissioner Hartig replied
that the permit would be subject to the geographical
limitation. The application of the permitting process would
be negotiated in the Memorandum of Agreement. He noted that
the question had been introduced recently in Washington DC
and the response was that the Memorandum of Agreement would
provide the details.
Co-Chair Austerman asked if all of the wetland permits fell
under 404. Commissioner Hartig replied that a specific
definition was used for the 404 program.
Mr. Fogels replied that many wetlands existed in Alaska and
some subset was deemed jurisdictional by the US Army Corps
of Engineers. The department would work with the US Army
Corps of Engineers to better understand how the subset
would be delegated to the state. Co-Chair Austerman offered
to provide more information to better answer his question
later.
2:04:21 AM
Representative Wilson appreciated the legislation. She was
seeking an advocate for her miners. She understood that the
state would continue to work within the EPA guidelines. She
asked to know how the state would have a gentler hand than
the federal government.
Commissioner Hartig replied that the benefits of primacy
included work with Alaskan projects including
accountability for the projects. He added that the state
would be under the same federal laws, in terms of the Clean
Water Act; there was room for interpretation and
discretion. He provided an example of a discretionary
decision made by the department.
Representative Wilson asked if the state would collect a
permitting fee on top of the federal government's fee.
Commissioner Hartig responded that one straight permitting
fee would be required. The amount of the state fee would be
dictated by the current statutes set by the legislature.
Mr. Fogels added that some placer miners were nervous about
the fees required for mitigation. He believed that primacy
would offer the advantage of working with the applicant to
arrive at Alaska-specific mitigation measures.
Representative Wilson stated that one of her mining
constituents spent seven years in the application process.
2:08:45 AM
Representative Munoz pointed out the benefit of litigation
in state court versus in the federal court.
Representative Gara asked if placer mining could be
regulated differently without seeking primacy. Mr. Fogels
responded that primacy was only one tool that could be used
to control wetlands permitting. Other tools, such as
programmatic general permits were also valuable. The
legislation allowed for research regarding the many tools
that would work to facilitate the process of permitting.
Representative Gara asked if programmatic general permits
would ensure state primacy for placer mining. Mr. Fogels
replied that he did not know yet. The legislation would
provide the opportunity for the departments to look more
closely at their options.
2:10:42 AM
Representative Edgmon MOVED Amendment one. Representative
Wilson OBJECTED for discussion.
Page 1, line 8, following "FINDINGS":
Delete "."
Insert "AND INTENT. (a)"
Page 2, following line 10:
Insert new subsections to read:
"(b) It is the intent of the legislature that
(1) government to government coordination and
consultations take place if federal authorization is
received for the administration and enforcement of a
state dredge and fill permitting program under 33
U.S.C. 1344 (sec. 404, Clean Water Act);
(2) a federally recognized tribe be treated by the
state as a government for the purposes of government
to government coordination and consultation.
(c) In this section, "federally recognized tribe"
means a tribe that is recognized by the United States
Secretary of the Interior to exist as an Indian tribe
under 25 U.S.C. 479a (Federally Recognized Indian
Tribe List Act of 1994)."
Representative Edgmon noted that the purpose of the
amendment added the requirement for state investigation of
the advantages of a tribal relationship. He posed the
question because many of Alaska's resources were tribally
owned or controlled. He opined that without a Coastal Zone
Management process, larger environmental entities could
bypass local governments. He believed that resource
development would be hampered by the lack of relationship
between the tribal entities and the state. He expected that
the state agency representatives would dispute the
amendment.
2:13:16 AM
Commissioner Hartig stated that his agency and the
administration were sensitive to the concerns of the tribal
entities. He wished to work with the tribal entities and
local governments to implement programs. He noted that the
model for the 402 program provided valuable guidelines. He
noted that the program description provided rural community
and tribal participation. He noted that the agreement
utilized the same language as the EPA's government-to-
government consultation.
2:17:28 AM
Representative Edgmon appreciated the agreeable commentary.
Co-Chair Stoltze detected that the department was working
with the government entities on a regular basis. He asked
if a flaw existed in the amendment.
Commissioner Hartig stated that the amendment goes beyond
the 404 program. The amendment discussed the state's
ability to recognize tribes as government entities and deem
consultations "government-to-government." He noted that the
jurisdiction for that ability did not reside with DEC. The
department sought optimal communication with the tribal
entities, but another step was required to establish the
government-to-government relationship.
Co-Chair Stoltze understood that the amendment expressed
intent language.
Representative Edgmon agreed and stated the hope for
further investigation from the department. He stressed that
he had seen the empowerment of tribal governments in
relation to their connections to federal agencies. He
expressed frustration with the absence of a formal
relationship. He promised to continue pursuing the issue
with every opportunity available, but chose to withdraw his
amendment. There being NO OBJECTION, it was so ordered.
Amendment 1 was WITHDRAWN.
2:20:50 AM
Representative Gara MOVED Amendment 2. Representative
Wilson OBJECTED for discussion.
Page 5, following line 9:
Insert a new subsection to read:
"(d) The Department of Environmental Conservation and
the Department of Natural Resources shall consider a
reasonable fee structure for permit applications under
this section in order to mitigate the costs of
administering a state permitting program."
Representative Gara recalled conversations with the
commissioners about the amendment's content. He expected a
proposal from the departments, but since none was provided,
he drafted the amendment. The amendment requested a
reasonable fee structure to address permit applications to
mitigate the costs of administering a state permitting
program.
2:22:27 AM
Commissioner Hartig recalled the conversation and he did
not opine that the amendment was necessary because the
state had a statute guiding the fee structure in AS.
37.10.052. The statute prescribed fees based on "average
reasonable direct costs" that were incurred by the
departments in permitting and compliance activities. The
structure applied to agency permitting activities and
permits issued under the state 404 program. The fees were
charged to permit applicants and were partially funded by
program receipts. Staff involved in issuing the permits
tracked their time and the fees were periodically revised
in regulation.
Representative Gara appreciated the statute. With the new
information, he chose to withdraw the amendment. There
being NO OBJECTION, it was so ordered. Amendment 2 was
WITHDRAWN.
Co-Chair Stoltze appreciated Representative Gara's efforts.
2:23:47 AM
Representative Costello discussed the three fiscal notes.
Two notes had fiscal impact; one from DEC and the other
from DNR. The third fiscal note from Department of Law had
zero fiscal impact.
Co-Chair Austerman asked about DNR fiscal note. He asked if
the interagency receipts were anticipated to come out of
the $1.4 million given to DEC. Mr. Fogels replied in the
affirmative.
Representative Costello MOVED to REPORT SB 27 out of
committee with individual recommendations and the
accompanying fiscal notes. Representative Gara OBJECTED. He
did not believe that the departments made the case that the
bill would be worth the money it cost. He opined that the
exploratory process would not cost millions of dollars. He
stated that the examples provided by the departments were
situations where the state would not gain primacy. He
advocated for a narrower placer mining program. He added
that the Army Corps of Engineers were a group of local
people. He did not feel compelled to spend the large sum of
money.
Representative Gara WITHDREW his objection.
Representative Kawasaki OBJECTED. He expressed concern with
the legislation and the memos from DEC regarding supposed
primacy benefits. He opined that permit fees would likely
increase under primacy. He expected the state to face
budget reductions. He pointed out the memo dated January 31
regarding the program assumption methods discussed state
primacy, which would take an estimated 4 to 5 years.
Another option in the memo discussed the ability to
cooperatively work to administer the programmatic general
permits for the Army Corps of Engineers. He preferred to
pursue the less costly option.
Representative Kawasaki WITHDREW his objection. There being
NO further OBJECTION, it was so ordered.
SB 27 was REPORTED out of committee with a "no
recommendation" and with three previously published fiscal
notes, two with fiscal impact: FN1(DEC) and FN2(DNR); and
one zero note: FN3(LAW).
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