Legislature(2015 - 2016)CAPITOL 120
04/07/2015 05:00 PM House FISHERIES
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Audio | Topic |
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Start | |
HB110 | |
HCR10 | |
HB119 | |
HB179 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
*+ | HCR 10 | TELECONFERENCED | |
*+ | HB 179 | TELECONFERENCED | |
*+ | HB 119 | TELECONFERENCED | |
*+ | HB 110 | TELECONFERENCED | |
HB 119-LEG. APPROVAL OF BRISTOL BAY SULFIDE MINE 5:26:52 PM CHAIR STUTES announced that the next order of business would be, HOUSE BILL NO. 119 "An Act relating to the Bristol Bay Fisheries Reserve; and providing for an effective date." 5:27:17 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, presented HB 119 as prime sponsor, and reminded the committee that in November 2014, Alaskans voted overwhelmingly to pass Ballot Measure 4, requiring legislative approval of any large scale mine within the Bristol Bay Watershed. Throughout the campaign, this issue was mining versus fish, and Alaskans declared that in this location, with this mine, they are not willing to jeopardize the fishery. He explained that HB 119 calls for a comprehensive review by the Department of Natural Resources (DNR), Department of Fish & Game (ADF&G), and Department of Environmental Conservation (DEC), and requires each commissioner to find "beyond a reasonable doubt" that any proposed metallic sulfide mining not presently permitted, larger than 640 acres in size, poses no threat to the fishery. He advised that the concept is based upon the Bristol Bay Forever Initiative, which was based upon the language of the 1972 Jay Hammond, Bristol Bay Fisheries Reserve law, and noted that the 1972 law included a requirement that any oil and gas developments in the Bristol Bay region receive legislative approval, and this legislation extends this requirement to mines in the same area. The bill also clarifies what is meant by fisheries in a far more comprehensive manner than the 1972 law or the initiative, he explained. He said that given this bill impacts the citizens' initiative, he touched on the constitutional aspects in that the case law in amending an initiative primarily is the Warren I, and Warren II decisions concerning potential rollbacks of initiative language. Obviously this bill does not rollback the language of the initiative, but gives it more teeth, he offered. 5:29:19 PM REPRESENTATIVE JOSEPHSON provided a section analysis, paraphrasing from a prepared statement, which read as follows [original punctuation provided]: Section 1: Requires development of regulations concerning legislative approval. Defines the meaning of "fisheries" and "permits and authorization". Section 2: New subsection requires the commissioners of the Department of Fish and Game, Department of Environmental Conservation, and Department of Natural Resources to make independent determinations that any large-scale metallic sulfide mining will pose no danger to the fisheries. Section 3: Adds immediate effective date. 5:29:22 PM REPRESENTATIVE JOSEPHSON stated that Section 1 broadly defines a variety fisheries, and the Bristol Bay Fisheries Reserve includes subsistence, commercial, personal use, and a great deal of sport fishing, and it also creates the definition for permits and authorizations. He then referred to Section 2, and advised this section reads "prior to legislative authorization, which is a current requirement for a large-scale metallic mine, and commissioners must make an independent finding that beyond a reasonable doubt any proposed mine constitutes no danger to the fisheries." Following that [finding], is a judicial review of the permits and authorizations and, he explained, the matter would then move to the legislature as called for in the initiative. He pointed out that the bill calls for a reconsideration of the legislative approval if there has been significant, but not minor, changes to the permits and authorizations previously granted which would entail each of the three commissioners making a revised, independent determination that an applicant has proven beyond a reasonable doubt that a large-scale mine will not constitute a danger to the fisheries. He noted the burden remains on the mining operation and not on the State of Alaska. He remarked that this section also calls for an inter-agency process wherein each department engages in information sharing while conducting their own separate and independent analysis of the efficacy of the mine relative to impacts on fisheries. Additionally, he said, a peer review process will be conducted in order that the findings of each department can be scientifically proven as reliable and verifiable. 5:31:11 PM REPRESENTATIVE JOSEPHSON continued by discussing the standard of review suggested by the legislation, in that currently in Alaska law, the beyond a reasonable doubt standard can be seen in many civil context, as it is not just a criminal standard, including Child in Need of Aid cases, Indian Child Welfare Act cases, and many cases involving hospitalization commitment. He referred to two personal injury actions where the beyond a reasonable doubt standard was used: one involving DNA testing wherein involving sexual abuse by members of the clergy; and an Alaska Supreme Court case involving wage and hour employment classification. He explained it fits into the natural resources context because beyond a reasonable doubt standard was used in forestry laws in Washington State, and there is a Pennsylvania mining law implementing beyond a reasonable doubt. In Pennsylvania law, § 86.102. "Areas where mining is prohibited or limited," there is a prohibition on surface mining operations within 100 feet of the bank of a perineal or intermittent stream, which read: (12) ... The Department may grant a variance from this distance requirement if the operator demonstrates beyond a reasonable doubt that there will be no adverse hydrologic impacts, water quality impacts or other environmental resources impacts as a result of the variance... 5:32:50 PM REPRESENTATIVE JOSEPHSON offered that within Title 5 AAC, the Board of Fisheries has created a series of regulations using the "precautionary approach" for management of Alaska's fisheries which is part of a comprehensive policy for the regulation and management of sustainable salmon fisheries. He quoted, "It is the goal of the policy ... in Title 5, ... under this section to ensure conservation of salmon and salmon's required marine and aquatic habitats protection of customary and traditional subsistence uses and other uses." The Chairman of the Board of Fisheries, he said, took an express position in a letter to the legislature on January 10, 2010, which read, "The legislature should enact any additional safe guards which are considered prudent to provide strict protections to the fish and game habitat of the drainages ... again, this is about Bristol Bay drainages ... to prevent any chance of environmental damage." He referred to the $10,000 fiscal note and explained that the others get more substantial, but not extremely substantial and offered that the $10,000 is currently in DNR, and the others refer to the out years of 2019 having a fiscal impact. He submitted that if the mines are postponed there would be no impact until further down the road. 5:34:45 PM REPRESENTATIVE JOSEPHSON opined that some have said this bill will help insulate and protect the state from litigation and liability in the event a mine, of the size in question, is permitted and developed and problems arise from that mine impacting any fishery. The argument there is, "We had this incredibly strict standard, don't pick on us if it goes badly." In summary, he related, without this bill commissioners would be free to use a much lower standard as they review permits and commissioners would more easily define the fishery as being commercial fishery, and not other fisheries. He pointed out that the 1972 law does not define subsistence fishery as something the legislature should consider. He remarked that without the bill: only DNR would prepare a report to the legislature as called for under the initiative whereas this bill requires that DEC and ADF&G commissioners are involved; regulations could be adopted allowing the state to take the burden on its shoulders rather than keeping the burden with the producers; the legislature would get one bite at the apple even though a mine could expand, evolve, and change as they so often do; and the express right to judicial review would be absent. He opined that the permitting process is intended to strike a balance between common values, such as economic development and conservation, but the process sometimes favors the better financed interests of industry as evidenced by the very small number of permits denied to projects over the last ten years. For example, he said, within a research report spanning the last ten years prepared by the Division of Mining, Land, and Water, 108 out of 7,971 permits were denied, but acknowledged that some are denied due to withdrawal, but that actual denials are "extremely" uncommon. He noted that these measures are intended to reduce the risk of development to a tolerable level; however, in this case the bill reads that the risk must be even lower. He stated that, "For this particular fishery in this particular place we must exercise an overabundance of caution," and offered that members may disagree with this measure, but it is within the scope of this committee as it relates to the preservation and protection of one of Alaska's most prized resources. He stressed that HB 119 is not an anti-mining bill but rather about protecting these fish in this particularly sensitive and special area. The legislature needs the best scientific product before it comes up on the legislature's floors for final approval of a large-scale mine in Bristol Bay, he opined. 5:38:26 PM REPRESENTATIVE HERRON pointed out that Representative Josephson clearly articulated that this legislation is needed because there could be a DNR commissioner and a legislature not paying attention, and there could be vote of legislative approval, and asked whether that would be by simple majority. REPRESENTATIVE JOSEPHSON answered that it is by simple majority under the initiative. REPRESENTATIVE HERRON noted that Representative Josephson could have the bill require two-thirds. REPRESENTATIVE JOSEPHSON responded, tongue in cheek, that he views that suggestion as a friendly amendment. He described this is a good, necessary, and ambitious bill, and such an amendment would make it even more ambitious. He opined that if there is a meritorious project, these three commissioners will make that determination in peer review. He noted that the potential mines at issue are any within the Jay Hammond Reserve, and the mine that "everyone has heard about" has said fish first, which he agrees with. 5:39:56 PM REPRESENTATIVE HERRON referred to Section 2, noting it does not explain whether a minority of those commissioners can [negate] it. REPRESENTATIVE JOSEPHSON explained that should DNR and DEC, subsequent to a peer review, determine there is beyond a reasonable doubt no chance of damage to a fishery of any sort, and ADF&G determines it is a threat, that determination would deny the project and; therefore, it would not come before the legislature. 5:40:48 PM REPRESENTATIVE MILLETT asked whether Representative Josephson is uncomfortable with Alaska's current permitting process for large-scale mines, or has there been a problem with DNR, DEC, or ADF&G in their recent findings with permitting mines. REPRESENTATIVE JOSEPHSON agreed he is uncomfortable with the current process, and advised that in 2013 Legislative Legal and Research Services prepared a document offering an overview of changes in the last 13 years in the regulatory process. He cited a number of projects and how they were handled, which included: the Coastal Zone Management Repeal, new mixing zones allowing for toxins in an anadromous streams which were not allowed prior to House Bill 160 (2003) making changes to Title 18 AAC, and House Bill 129 which read, "We're only going to review oil and gas leases at the outset for 10 years, no public comment during that period." He advised there have been a series of decisions from the Supreme Court, and legislation that has gone in the opposite direction, and he has concerns. 5:42:18 PM REPRESENTATIVE MILLETT asked Representative Josephson to point to a permitted large-scale mine in the last ten years wherein he believes fish required protection. REPRESENTATIVE JOSEPHSON listed concerns with the Illinois Creek Mine [located in the Kaiyuh Mountains, west-central Alaska], and the Rock Creek Mine located on the Seward Peninsula, as both mines never came to fruition yet dirt was turned and $20 million of remediation is necessary on the Seward Peninsula. He questioned whether Alaska has enough boots on the ground to monitor, and referred to the Pebble Mine that self-reported 44 water violations and expressed concern because Pebble Mine self- reported the violations and Alaska was not aware of the problems. The trans-boundary issue is a real concern for Southeast Alaska, and he opined that the administration is concerned. 5:43:21 PM REPRESENTATIVE MILLETT inquired why Representative Josephson would not put a bill forward changing the permitting process rather than presenting HB 119 with a large fiscal note. She opined that if there was another large mine that went to permitting it would raise the state's cost incredibly. She stressed that the legislature is cutting education, yet he wants to add mine permitting to the pile of money Alaska does not have just in case someone comes forward to permit a large mine because he is uncomfortable with the manner Alaska permits mines. She suggested moving toward permitting changes rather than another study and layer of government that is scaring industry away from the State of Alaska. REPRESENTATIVE JOSEPHSON responded that new permits would also be another layer of regulations with costs, and he does not know whether that remedy would change much of the result. Statistics show permits are generally granted, although with tough conditions, he acquiesced. He reiterated that given Alaska has the best wild salmon fishery on the planet, it is smart thinking when three commissioners review preliminary permits and the "whole thing" in total, and make an independent finding with a peer-reviewable inter-agency review. 5:45:06 PM REPRESENTATIVE MILLETT asked what amount of time this would add to a large mine project in realistic terms. Bristol Bay Pebble Mine had multiple studies which was not enough so where do the studies stop - until there is a piece of data that can stop a complete mine, she questioned. REPRESENTATIVE JOSEPHSON responded the answer to Representative Millett's second question would be after HB 119 is passed is where to stop. With respect to her first question, he could only surmise that is could be six months, but stressed that people and legislators are entitled to confidence in the process. CHAIR STUTES opened public testimony. 5:46:30 PM DAVID HARSILA, President, Alaska Independent Fisherman's Marketing Association (AIFMA), testified in support of HB 119, and said the Alaska Independent Fisherman's Marketing Association (AIFMA) board met with mining officials from a prominent company approximately 10 years ago and advised its permitting process research in Alaska indicated the State of Alaska would never deny permits, which referred to large-scale open-pit mines that would be developed in Bristol Bay Watershed. Its explanation and confidence about Pebble Mine convinced the AIFMA board, at that time, that this was a significant and a real issue, he conveyed. Since that time AIFMA has been searching to provide a higher standard when applications for large-scale open-pit mines are considered and the opportunity to address this issue is now, before a permit application is received, and before a mine is developed as opposed to after the fact. He pointed out that the largest natural run of Sockeye Salmon in the entire world resides in the Bristol Bay Watersheds, and it is at stake. He urged the committee to protect the Bristol Bay Watershed from large-scale open-pit mining and the damages it could incur. CHAIR STUTES closed public testimony after ascertaining no one further wished to testify. 5:49:28 PM REPRESENTATIVE KREISS-TOMKINS moved to report HB 119, labeled 29-LS0424\H out of committee with individual recommendations and the accompanying fiscal note. REPRESENTATIVE MILLETT objected. 5:49:54 PM A roll call vote was taken. Representatives Foster, Ortiz, Kreiss-Tomkins, and Stutes voted in favor of HB 119. Representatives Johnson and Millett voted against it. Therefore, HB 119 passed and was reported out of the House Special Committee on Fisheries by a vote of 4-2. 5:50:30 PM The committee took an at-ease from 5:50 p.m. to 5:52 p.m.
Document Name | Date/Time | Subjects |
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HB 119 Supporting Document - BBFR Map.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Pebble 2.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Pebble 1.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Pebble 3.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Talking Points.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Pebble 3.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - BBFR Map.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Talking Points.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Pebble 1.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 119 Supporting Document - Pebble 2.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
HB 110 Oppose CDFU.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose UFA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose Martin.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose SEAFA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose AK Salmon Alliance.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose UCIDA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HCR 10 Support DOL.pdf |
HFSH 4/7/2015 5:00:00 PM |
HCR 10 |
HB179 Explanation of Changes ver A to ver E.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
HB179 ver E.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
HB179 Sectional ver E.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
HB 179 Support Tlingit and Haida.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
HCR 10 Support BBB Chamber of Commerce.pdf |
HFSH 4/7/2015 5:00:00 PM |
HCR 10 |
HB 110 Oppose SEAS.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose ASA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose Lee.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
HB 110 Oppose Evans.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |