Legislature(2017 - 2018)GRUENBERG 120
04/12/2017 06:00 PM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB199 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 199 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 199-FISH/WILDLIFE HABITAT PROTECTION; PERMITS
6:03:05 PM
CHAIR STUTES announced that the only order of business would be
HOUSE BILL NO. 199, "An Act establishing general fish and
wildlife permits and major and minor anadromous fish habitat
permits for certain activities; establishing related penalties;
and relating to the protection of fish and game and fish and
game habitat."
6:03:31 PM
CHAIR STUTES offered an opening statement, paraphrasing from a
prepared statement, which read as follows [original punctuation
provided]:
I am the prime sponsor of this legislation and I want
to state my clear intention on the record I am
putting this bill forth in order to begin the public
process so that this concept can be vetted over the
interim, I do not intend to move this legislation from
the House Fisheries Committee this session.
6:04:49 PM
REID HARRIS, Staff, Representative Louise Stutes, Alaska State
Legislature, presented HB 199, paraphrasing from the sponsor
statement, which read as follows [original punctuation
provided]:
House Bill 199, the "Wild Salmon Legacy Act," updates
Title 16Alaska's fish habitat protection and
permitting law. This law guides how the State of
Alaska permits activities and development projects
that may impact wild salmon; however, the law has not
been updated since Statehood.
The bill creates a balanced and efficient permitting
system that protects Alaska's wild salmon runs,
promotes responsible development and gives Alaskans a
greater voice in major permitting decisions that
impact wild salmon streams. HB 199 provides regulatory
certainty for resource development companies while
ensuring protection of salmon habitat.
This bill is drafted in response to a letter the
Alaska Board of Fisheries sent to the Legislature in
January 2017 recommending it modernize Title 16. The
Board of Fisheries' action came at the request of a
group of Alaskans comprised of commercial, sport,
subsistence and personal use fishermen concerned about
the future of the salmon they depend on.
Wild salmon are a major part of our culture, economy
and identity in Alaska. Alaska is the last state with
healthy populations of wild salmon and this bill
protects the interests of Alaskans who rely on wild
salmon for food, income and recreation."
Given the importance of Alaska's salmon fisheries, the
state must ensure that related laws are balanced,
predictable and fair in both protecting salmon habitat
and encouraging responsible development. HB 199 will
create enforceable standards, provide for public input
and expand the Department of Fish and Game's authority
to protect fish habitat and will safeguard Alaska's
salmon fisheries into the future.
MR. HARRIS added that the definition of anadromous water
includes all waters of the state.
6:09:35 PM
EMILY ANDERSON, Attorney, Alaska Director, Wild Salmon Center,
said there are five primary limitations/deficiencies with the
current Title 16 statutes, which HB 199 addresses. First it
expands the jurisdiction of the Alaska Department of Fish & Game
(ADF&G). Current law requires ADF&G to specify the water bodies
in the state that are important for the spawning, rearing and
migration of anadromous fish. The directive has resulted in the
creation of the Anadromous Waters Catalog (AWC). The agency
estimates that less than 50 percent of anadromous waters are
listed in the AWC, which creates a jurisdictional problem
because the AWC functions as the trigger for the requirement of
a fish habitat permit. The proposed bill creates a rebuttable,
approach for identifying anadromous waters. Rather than the
agency identifying and generating a list of anadromous waters,
the presumption is made that all waters are anadromous and
provides a means for a water way to be removed/exempted; a more
efficient approach considering that the majority of Alaska's
waters are anadromous. The proposed measure does three things:
1) expands agency jurisdiction and triggers the fish habitat
permit requirement without forcing ADF&G to sample every river,
lake, and stream in Alaska; 2) allows an applicant to request a
site-specific determination that a water is not anadromous if
they do not believe a permit should be required; and 3)
regardless of how the presumption is created, it provides a more
efficient system and saves costs. She explained that sometimes,
private organizations receive grants and sample waterways, which
can then be nominated for inclusion in the AWC, at a cost of
approximately $1,000 per stream mile. With over 20,000
waterways in the state, costs can mount quickly. The state
usually assumes the liability, and in 2015 paid for sampling in
the Bristol Bay region to survey 450 miles of streams, at a cost
of $550,000. A change in statute to create an anadromous waters
presumption would eliminate this level of cost. Second, HB 199
creates certainty in the permitting process by creating guidance
for how significant adverse effects to fish habitat will be
analyzed and mitigated. Under current law, the commissioner
shall issue a permit unless the plans and specifications of the
proposed project are insufficient for the proper protection of
fish and game. The "proper protection of fish and game" is used
as a general standard, with no guidance or definition provided
in statute or regulation. In addition, there is no requirement
that projects should be treated differently based on the level
of potential adverse effects to fish habitat. Fundamentally, it
creates uncertainty regarding how the agency might choose to
impose protective measures, as well as how proposed permits will
be analyzed and whether there will be restrictions attached.
The fix proposed is HB 199, is to create a two tier permit
application system to identify whether there could/could not be
adverse effects to fish habitat. If ADF&G determines that
habitat degradation can be avoided or minimized through specific
conditions the application becomes a minor permit, and if
potential is significant, it becomes a major permit requiring
further scrutiny and a detailed, impact assessment, for which
the applicant will be responsible to pay. Third, HB 199
requires public notice for all permits and creates a public
process during the review of major permits. Current law does
not require public notice or opportunity for participation in
the permit review process. Generally, permitting processes are
designed to strike a balance between administrative efficiency
and transparency in government, but currently such a balance is
absent. Further, all permits, whether for large or small
projects, are treated the same regardless of the potential for
significant adverse effects to fish habitat and the
sustainability of fisheries. The proposed bill requires public
notice for the minor permits and public notice as well as an
opportunity for public comment, during the review of major
project permits; inserting balance and transparency into the
process.
6:18:52 PM
MS. ANDERSON said the fourth point HB 199 rectifies, is
providing a definite limit to the adverse effects that can be
imposed on state waters, and thus creating a clear, unambiguous
standard for permit denial. The current law, stipulating that a
permit will be issued pending the commissioner's decision on
whether there is proper protection of fish and game, is
nebulous, as previously mentioned, and does not provide
appropriate certainty to the process. The proposed legislation
establishes a clear, upper limit of allowable damage to fish
habitat. In concept, this will open the door to development
while providing a backstop to damage that can be incurred on
anadromous fish habitat (AFH). The commissioner shall determine
that substantial damage will occur if: the activity will cause
significant adverse effects; the adverse effects cannot be
minimized using allowed mitigation measures; and the significant
adverse effects are such that the habitat will not likely
recover in a reasonable period of time based on the life history
of anadromous species, or recover to a level that sustains
natural and historic levels of fish populations. In addition,
HB 199 bans certain types of mitigation that pose risks to the
recovery of AFH after the project is complete. Thus, the
commissioner shall not issue a permit if recovery requires any
of the following: necessitates water treatment in perpetuity,
replaces a wild run fish population with a hatchery dependent
population, or causes dewater or relocation of a stream for more
than five years. The establishment of these parameters are
expected to result in the promotion of responsible development
while ensuring the protection of anadromous fish habitat. The
fifth and final element, is that HB 199 adds tools to enforce
permit violations. The current law provides ADF&G with the
option of pursuing a misdemeanor penalty for permit violations,
which requires the involvement of the Department of Law and can
be difficult to pursue if not a major offense. The fix in HB
199 authorizes ADF&G to assess civil penalties and citations,
providing the agency flexibility for enforcement of permits, she
finished.
6:24:53 PM
MIKE WOOD, Board President, Susitna River Coalition, said the
Susitna hydro dam project has been actively opposed by over
10,000 residents because of the impact it would have on the
fisheries. The Susitna dam proposal provided no type of fish
passage, he reported. The creators of the state constitution
placed weight on the need to protect the fisheries and habitat
on an equal basis with mineral extraction, which should never
become overshadowed by potential developments such as the
Susitna hydro dam or the Chuitna coal mine. A balance needs to
be struck that provides assurances and certainty to those on
both sides of the permitting process; resource conservation and
industrial development. The bill would also span changes of
administration, ensuring that a given political groups policy
could not hold sway. He ended with a quote from Governor Jay
Hammond, which states: "Alaskans should be aware that some
economic growth can be malignant unless development is
environmentally sound, desired by most Alaskans, and can pay its
own way without burdening the state and the tax payer, I'll
oppose that."
6:31:25 PM
GLENN HAIGHT, Executive Director, Board of Fisheries (BOF),
Alaska Department of Fish & Game (ADF&G), directed attention to
the committee packet and the BOF letter addressed to Senate
President, Pete Kelly, and Speaker of the House, Bryce Edgmon,
1/19/17, and explained that it was written in response to a non-
regulatory proposal requesting that the board recommend
legislative action to have elements of the sustainable salmon
fisheries policy included under the Title 16 statutes. The
board responded, and during the October meeting in Soldotna,
Alaska, heard comments and received written testimony on the
topic. The outcome was that the board found sufficient cause,
which triggered special committee meetings, and resulted in the
letter before the committee.
6:32:56 PM
REPRESENTATIVE KREISS-TOMKINS asked if the letter sets a
precedent for the board weighing in on habitat permitting
matters, or is it a frequent occurrence.
MR. HAIGHT responded that there are statutory duties allowing
for this type of action, and in 2009 the BOF provided a similar
letter regarding the Bristol Bay refuge area.
6:34:35 PM
RON BENKERT, Acting Manager, Habitat Division, referred to the
committee packet handout titled, "Fish Protection Laws in Alaska
ADF&G Statutory Authority; Salmon Policy Forum," 4/11/17 to
review the authority held by Alaska Department of Fish & Game
(ADF&G) for fish and wildlife habitat protection, identify the
strengths and limitations of that authority, and explain how the
authority is applied regarding fish habitat permits. He said
several agencies, in addition to ADF&G, provide permits for any
project that involves fish bearing streams, including: Alaska
Department of Natural Resources (DNR), Alaska Department of
Environmental Conservation (DEC), US Army Corps of Engineers,
boroughs and municipalities, and land managers. A delicate
balance must be struck by the habitat division, to allow for
resource development while protecting the resource, he said, and
pointed out that permitting today is very different than it was
20 years ago. The agency conducts and gathers research to
compile technical reports, which are used to update guidance
manuals for use in evaluating projects. Examples he offered are
the new blasting standards that were recently field tested and
issued. Additionally, the division maintains a memorandum of
agreement (MOA) with the Department of Transportation (DOT) to
ensure fish passes are appropriately installed that will not
restrict migration, such as culverts which must now be installed
with simulated substrate in the bottom. The agencies effective
negotiation process results in the majority of permits being
approved; however, the original application may look very
different than what is eventually permitted. An applicant often
withdraws their paperwork rather than be denied, when they
understand how the regulations apply to their project. Turning
to the committee handout, page 6, he provided a state map of the
six regions where ADF&G, Habitat Division offices are located.
The workload priorities include: Title 16 permitting and
enforcement; field work that includes research, site
inspections, and AWC [anadromous waters catalog] surveys; large
projects that are of importance to the state; Alaska Forest
Resources and Practices Act [Title 41, 2013] enforcement; and
special area planning for critical habitat areas.
6:41:51 PM
MR. BENKERT said there are two primary statutes that Habitat
works under, which are the Fishway Act [or Fish Passage Act], AS
16.05.841, 1959, and the Anadromous Fish Act, AS 16.05.871. The
Fishway Act was instituted at the time of statehood and applies
to anadromous as well as resident fish. It requires that any
obstruction built across fish-bearing waters will provide a
means for fish to pass. The options for mitigation are archaic,
he opined, and include: a lump sum payment to the state for the
fish and game fund; build, operate, and maintain a hatchery in
perpetuity, or pay to expand, maintain, and operate an existing
hatchery. Today, it is understood that production fish
hatcheries are not an acceptable surrogate for wild run fish.
The positive aspect of this act is that it applies to all fish
bearing streams and all fish species and requires a long-term
commitment to operate and maintain any structures. These
measures apply to culverts, as well as dams and other large
projects. The limitations are that it only applies to fish
passage, and the mitigation provisions are
inappropriate/archaic. Mr. Benkert referred to the Anadromous
Fish Act, stating that it requires that the waterbody be
included in the AWC, specifying that the waters are important
for the spawning, rearing, or migration of anadromous fish. He
reported that agency biologist spend about six weeks every year
in the field, updating and adding waterbodies to the AWC. When
projects are proposed, data is often collected from areas that
otherwise may not have been a focus. Project notification and
plan submissions are required before work can begin, via the
permit application, and the permit can then be approved or
denied. Strengths of the act include that it applies to any
hydro activity and to any life stage of the fish. The
limitations are that jurisdiction only applies to the areas
below the ordinary high waterline, the waterbodies that are
included in the AWC, and only freshwaters.
6:47:21 PM
MR. BENKERT said the AWC is online and anyone has access to view
the information. It's updated annually, and signed off-on by
the lieutenant governor. He reviewed the complete permitting
process, to wit: applicant submits plans to ADF&G; habitat
biologist reviews and consults area staff; the project may be
permitted as proposed or modified during the review process.
The review timeline may be two days but is generally 4-6 weeks,
and in some instances years; however, emergency exemptions are
available under AS 16.05.891 via verbal/email approval and are
followed-up with a formal permit. Permit stipulations may
include: timing windows to minimize effects on fish; stream
diversion/bypass pumping to allow fish to pass during
construction; sediment control; revegetation and bank
stabilization; and fish passage provisions in perpetuity.
6:52:47 PM
CHAIR STUTES asked for an estimation on the percentage of the
waterways included in the AWC.
MR. BENKERT answered that it may be 60 percent of Alaska waters.
The surveyors are focusing primarily on accessing the larger
watersheds, as helicopters are inevitably involved and expenses
run high. The road system has, understandably, been well
covered.
CHAIR STUTES asked when the cataloging was started.
MR. BENKERT conjectured that it may have begun in the 1980's.
6:55:31 PM
REPRESENTATIVE TARR assumed that some projects may require a
National Pollutant Discharge Elimination System (NPDES) permit
and a Stormwater Pollution Prevention Plan (SWPPP), as well as
an ADF&G permit and asked if a chronological order must be
followed during the application process or whether overlap
occurs.
MR. BENKERT responded that DEC issues the SWPPP permits and
deferral is made to them for water quality issues.
REPRESENTATIVE TARR noted that the permitting process is
reportedly slow, but it appears that there may be good reason
given all of the moving parts.
MR. BENKERT agreed that there are many aspects that must be
worked with, prior to a permit being issued, as the evaluations
often require collaboration between multiple agencies.
7:00:01 PM
TAYLOR HORNE, Environmental Program Manager, Department of
Transportation & Public Facilities (DOTPF), directed attention
to the committee packet document titled, "DOT/PF Comments on
HB199; How do Title 16 ADF&G Fish Habitat Permits Affect DOT&PF
Projects?," 4/7/17, and paraphrased the contents, which read as
follows [original punctuation provided]:
Many DOT&PF projects affect creeks, streams, and
rivers that support anadromous fish. Current AS
6.05.871-.901 specifies that all activities within or
across a specified anadromous waterbody requires a
permit from ADF&G before altering or affecting "the
natural flow or bed" fish stream. This is commonly
referred to as the "Title 16 Fish Habitat Permit".
DOT&PF environmental, engineering, and hydrologist
staff work closely with ADF&G fish habitat biologists
during the project development process and Title 16
fish habitat permitting process to create
transportation projects that preserve or improve fish
habitat while improving transportation infrastructure
for Alaskans. For example, DOT&PF works with ADF&G to
improve culverts to allow for anadromous fish passage
at every opportunity; similarly, bridge abutments and
piles are designed to allow for the natural meander o
fish streams and to increase fish habitat.
DOT&PF staff value the input of the public and
resource agencies throughout the project development
process. Conversations early in project development
allow for design modifications to be incorporated in
the project, allows the environmental impacts to be
accurately analyzed in the NEPA document, assures
compliance with our federal funding partners, and
gives the public and agencies more opportunities to
voice their concerns and improve outcomes for
anadromous fish habitat. In particular discussions
with ADF&G fish habitat biologist beginning at project
scoping, continuing through the NEPA process, and
concluding with the Title 16 permitting allows DOT&PF
to design and build projects that often improve fish
habitat.
The department of transportation would value you to
consider whether it would be appropriate to have an
exception for major fish habitat permits of major DOT
projects that have already undergone the NEPA process.
7:09:24 PM
REPRESENTATIVE TARR referred to the final suggestion asking that
an exception be allowed for major projects that have undergone
the NEPA process and asked whether such action would be applied
based on a particular point in time.
MR. HORNE clarified that the majority of DOT construction
projects have a well-defined public process that must be
followed. It would helpful to consider a means for current,
active projects to be exempted from revisiting any of the
processes and conversations that have already been moved
through.
7:10:55 PM
WADE STRICKLAND, Program Manager, Waste Water Division,
Department of Environmental Conservation (DEC), testified on HB
199, paraphrasing from a prepared statement, which read as
follows [original punctuation provided]:
My commentary is brief and is meant to bring awareness
of how this act will interact with certain DEC
regulations.
The bill (HB 199) creates a rebuttable presumption
that all fresh waters in Alaska are anadromous.
Current Alaska Water Quality Standards found in
regulations (18 AAC 70) state that DEC may not
authorize mixing zones in an area of anadromous fish
spawning. Mixing zones are authorized by DEC in
wastewater permits and are areas in surface water
where treated wastewater undergoes initial dilution
and mixing. Under the proposal, all existing DEC
permitted wastewater discharges to freshwater with
authorized mixing zones will be out of compliance
unless a site-specific determination is completed and
rebutted by Fish and Game or additional treatment is
added to the wastewater facility. Accordingly, many
communities and industry statewide that discharge
treated wastewater to freshwater will likely need to
engineer and fund improvements to their wastewater
treatment facility to comply with the requirements. In
addition, DEC permit application reviews are expected
to increase in complexity as communities and industry
work within the legal framework.
7:12:32 PM
REPRESENTATIVE TARR asked whether the 50 existing mixing zone
permits would be grandfathered in.
MR. STRICKLAND responded that grandfathering in the permits
could be an option and clarified that there are about 100
existing mixing zones that would need to be considered for such
action.
CHAIR STUTES opened public testimony.
7:14:38 PM
MARLEANNA HALL, Executive Director, Resource Development
Council, stated opposition to HB 199, paraphrasing from a
prepared statement, which read as follows [original punctuation
provided]:
In brief, RDC is a statewide trade association
comprised of individuals and companies from Alaska's
oil and gas, mining, forest products, fisheries and
tourism industries, as well as the 12 ANCs. RDC
members are truly the life-blood of Alaska's economy.
We believe the best approach to expand the economy and
generate new revenues for the state is to produce more
oil, attract more tourists, harvest more fish and
timber, and mine more minerals.
With regard to House bill 199, increasing uncertainty
and adding additional, unnecessary regulatory burdens
to community and resource development projects across
Alaska with little to no added benefit to salmon
habitat is not sound policy. This bill will likely
delay, or even halt, these projects and increase costs
for our communities and private sector and would send
Alaska further down on the regulatory-certainty scale.
On Monday, I worked with 17 other Alaskan entities to
develop a letter with some initial concerns:
The coalition agreed that concerns with HB 199 start
with simple questions: Why is this bill necessary?
What is it trying to fix? What is the real fiscal
impact?
The letter expressed initial overlying areas of
concern that this bill would seriously impact:
--Community development including upgrades to
infrastructure, such as airports and roads,
construction of wastewater treatment plants, natural
community growth, and more.
--Economic development including fish processing,
timber harvests, mineral extraction, and oil and gas
development.
--A future gas pipeline to transport Alaska's natural
gas from the North Slope to markets.
The intent to safeguard Alaska's salmon fisheries is
an objective we share and it is why we support
Alaska's existing rigorous and science-based
regulatory system. Shutting down economic and
community development is a disproportionate response
to a problem that doesn't exist.
Those are just a few lines from the letter I spoke of.
I have a copy of the letter, but it has already been
submitted for the record and is on BASIS. It lists
all 18 signatories, from RDC to other trade
organizations, as well as Native corporations, and
others who wanted to join after I submitted it on
Monday are not listed.
In conclusion, my members are not asking for less
burdensome regulatory processes, but we do request
that as the state considers changes, it do no harm to
Alaskan communities and responsible resource
development projects.
Members of the HFSH committee, I urge you to reject
this legislation, as it is fundamentally flawed and
poses a grave threat to Alaska's economy.
7:18:29 PM
LINDSEY BLOOM stated support for HB 199 and said entry into
statehood was spurred on by the interest to control the fishing
resources. The Constitution of the State of Alaska provides a
powerful framework for fisheries, which, she opined, "is
probably why we continue to be the last state in the country
with robust, economically viable salmon fisheries." Title 16,
provides the Alaska Department of Fish & Game (ADF&G) its
authorities, and one sentence guides the permitting process
regarding habitat, which she paraphrased as: "You shall issue a
permit so long as that permit provides for the proper protection
of fish and game." Searching statute, policy, and regulations,
she reported that the definition of "proper protection," does
not exist, and suggested that this may be the overriding
problem. Industry may have a knee jerk reaction to the proposed
legislation and insist that no problem exists; however, if your
culture or economic way of life depends on the fisheries, not
having proper protection defined does pose a problem and needs
to be fixed.
7:22:53 PM
REPRESENTATIVE EASTMAN asked for further reasons that the bill
should be considered necessary.
MS. BLOOM pointed out that the multi-agency coordination work
and complexity involved for permitting large projects creates
several problems. Also, requirements are not in place for
public notices involving the issuance of permits related to fish
habitat. Thus, parties/entities interested in what permits are
being issued in a given area can only receive information by
filing a request for public information with the department.
The technology exists to easily remedy this situation, she said
and cited the possible use of geo-locator mapping. Another
issue is enforcement of fish habitat permits, which reportedly
poses challenges to the department.
7:25:29 PM
REPRESENTATIVE KREISS-TOMKINS referred to the lack of
transparency around issuance of permits that requires the public
to forage for information, and asked whether law prohibits an
agency from instituting regulation to rectify the situation.
MS. BLOOM replied, "To my knowledge, there is nothing in law
that would prevent that." She added that many of the concepts
proposed in the bill are currently at the discretion of the
commissioner. Placing the concepts into law will establish a
non-arguable certainty for the maintenance of fish habitat
quality.
7:27:32 PM
REPRESENTATIVE EASTMAN referred to the Susitna Dam project,
which was permitted without allowing passage for fish, and asked
whether it's possible for a dam to be permitted, under Title 16,
without provisions for a fishway.
MS. BLOOM explained that the Susitna Dam project has been put on
hold, and a Title 16 permit was not issued. The Fishway Act [or
Fish Passage Act AS 16.05.841] includes a mitigation option
allowing for hatchery replacement of natural-run fish.
7:29:15 PM
MIKE SATRE, Manager, Government and Community Relations, Hecla
Mining, stated opposition to HB 199, directing attention to the
committee packet and the coalition letter submitted by the trade
association. The stance held by the coalition is that the bill
is fundamentally flawed and should not proceed through the
process. The Board of Fish (BOF) has requested enhanced public
comment, and enforceable standards. He opined that regulation
could be promulgated to satisfy the needs, as an easy fix, and
enforceable standards are already in place. Many of the
concerns appear to focus on changing the law primarily because
it hasn't been visited in 60 years; however, there is nothing
compelling such a review other than fear. Sweeping reforms
should only happen if there are documented examples of problems
in the existing law, and targeted solutions. He said the bill
will create significant delays to any development within the
state, and a one size fits all approach will preclude site
specific criteria from being appropriately addressed; salmon
habitat is unique in each region as are the projects. He urged
the bill be placed in the "circular file," and not run through
the legislative process.
7:32:19 PM
REPRESENTATIVE JOSEPHSON asked whether the Fishway Act [or Fish
Passage Act AS 16.05.841] and Anadromous Fish Act [AS 16.05.871-
.901] are considered a one size fits all approach. If the
proposed legislation replaces portions of the existing acts,
what makes HB 199 outstandingly different, he posed.
MR. SATRE answered that the acts establish broad overarching
goals that serve to protect the environment and yet allow for
resource development. The largest impact of the proposed
legislation may not be on projects requesting permits, but on
community development.
7:34:45 PM
KRISTIN CARPENTER, Executive Director, Copper River Watershed
Project, stated support for HB 199, and said the project
promotes sustainable economic development, within the region of
the Copper River drainage, by ensuring fish passage ways for all
species. She pointed out that a construct is often posed around
jobs versus the environment. However, the environment does
represent jobs, including: guiding services, tourism, lodging,
canneries, boat manufacturing and repair, as well as the
commercial fishing industry that has been reported as providing
3,280 full time jobs, and $162 million in annual labor income to
Southcentral Alaska residents. Salmon are a renewable resource,
generating economic and recreational opportunities for thousands
of people. Title 16 will be improved by placing into statute
upper limits on habitat degradation, she opined. The broad
statements by the opposition seem to take the stance that
permits would be disallowed, and projects shut down across the
state, however, based on ADF&G testimony, the process won't be
significantly changed. She urged the committee to take into
account all the opportunities for jobs that ecosystem services
support and the intangible, as well as tangible, values realized
from cultivating the natural resources.
7:39:42 PM
GEOFFREY PARKER, Bristol Bay Fishermen's Association (BBFA),
stated opposition to HB 199, pointing out that the positive
parts of the proposed legislation could be handled via
regulation. He opined that there are eleven negative points
being proposed, which could prove harmful to salmon. Directing
attention to the committee packet and the previously submitted
letter dated 4/10/17, he paraphrased from the "CONCLUSION,"
pages 9-10, which read as follows [original punctuation
provided]:
(1) removes the beds of anadromous waters from the
jurisdiction of the Act so as to reduce the scope of
protection and permitting;
(2) requires regulations to create a method of evading
permitting by determining that anadromous waters are
"not important," when a method already exists under
the Administrative Procedure Act;
(3) allows excavation and mining of the beds of
anadromous streams to evade permitting, whenever ADF&G
was unable to anticipate that previous activities,
such as water extraction wells around a mine pit,
would result in dewatering anadromous water;
(4) eliminates the fish themselves from the
jurisdiction of the Act so as to allow blasting near
documented anadromous waters, including by Pebble and
the mining and oil and gas industries, to evade
permitting whenever pressure waves would harm fish
embryos but leave the habitat intact;
(5) presumes unnecessarily that all surface waters are
anadromous when modeling after the Forest Practices
Act offers a more rational presumption;
(6) limits existing administrative and judicial review
by replacing the "interested person" standard with the
"person adversely affected" standard;
(7) limits existing judicial review by replacing the
right to file an original court action in the Superior
Court sitting as a trial court, which has all the
advantages of discovery, production of evidence,
cross-examination, use of expert witnesses, etc., with
an administrative appeal to the Superior Court sitting
as an appellate court reviewing an established agency
record with no opportunity in an appellate court for
discover, production of evidence, cross-examination,
use of experts, etc.;
(8) amends the Administrative Procedure Act to
extinguish the applicability of numerous provisions
designed to assure a fair hearing before ADF&G hearing
officers on matters involving reconsideration of
decisions made under HB 199;
(9) replaces full fees for ADF&G doing field work with
reasonable fees, and limits ADF&G to "reasonable
requests" for an applicant to do field work, all of
which puts the applicant in greater control of the
information that goes in decision-making;
(10) bars mitigation of unforeseen significant adverse
effects under major permits whenever prior damages to
the same water body already exist; and
(11) invites further erosion of the current Act if the
bill becomes an enacted initiative.
7:42:55 PM
REPRESENTATIVE TARR asked whether the BBFA is a group that
supports the Pebble Mine.
MR. PARKER responded, "Not in the least."
7:44:11 PM
KAREN MATTHIAS, Executive Director, Council of Alaska Producers,
stated opposition to HB 199, paraphrasing from a prepared
statement, which read as follows [original punctuation
provided]:
The Council of Alaska Producers (CAP) appreciates the
opportunity to provide comments on HB199 "An Act
establishing general fish and wildlife permits and
major and minor anadromous fish habitat permits for
certain activities; establishing related penalties;
and relating to the protection of fish and game and
fish and game habitat."
CAP is a non-profit trade association formed in 1992
and serves as a spokesperson for the large metal mines
and major metal developmental projects in the state.
Bringing together mining companies with interest in
Alaska, the Council represents and informs members on
legislative and regulatory issues, supports and
advances the mining industry, educates members, the
media, and the general public on mining related
issues, and promotes economic opportunity and
environmentally sound mining practices.
CAP opposes HB199 because it would shut down
responsible resource development projects across the
state, jeopardize the continuation or expansion of
existing operations, delay and add costs to road
construction and other state infrastructure projects,
and it would inhibit community development. The real
fiscal impact of this bill would be staggering.
HB199 is the wrong solution to a problem that doesn't
exist. Alaska already has a world class permitting
system that is based on science and applied
consistently. This bill creates a new permitting
program that is more stringent than the applicable
federal laws without giving any reason why the Clean
Water Act, the Endangered Species Act, and the
National Environmental Policy Act are deemed
insufficient to project fish habitat and wildlife in
Alaska.
HB 199 cannot be fixed. Please recognize that the
current, rigorous permitting system works and do not
move this bill any further. Doing otherwise would
endanger Alaska jobs as well as threaten any expansion
of our state's limited transportation infrastructure.
It would also restrict opportunities for Alaska
communities to grow and prosper.
7:46:13 PM
DEANTHA CROCKETT, Executive Director, Alaska Miners Association
(AMA), stated opposition to HB 199, paraphrasing from a prepared
statement, which read as follows [original punctuation
provided]:
AMA has approximately 1,500 members and we're
represented in eight statewide branches, from Nome to
Ketchikan.
Earlier this week, this Committee received a letter
signed by eighteen statewide business organizations,
including AMA, opposing HB 199. This is the letter
Ms. Hall referenced earlier. Ranging from community
development to tourism, oil to mining, this diverse
group of entities represents the broadness of the
negative impacts that would result of passage of HB
199.
As to Alaska's mining industry in particular: all of
AMA's members operate within the State's rigorous,
science-based regulatory process. This is not a
rubber-stamp "easy," or superficial process. It is
lengthy, rigorous, and stringent. A key component of
this process is the protection of Alaska's fisheries,
and not just fish habitat protection, but fish habitat
enhancement.
The safeguarding of fish species at Alaska's mining
projects is a success story. The bill we are hearing
today, HB 199, suggests significant regulatory
problems that simply do not exist. HB 199 proposes a
massive rewrite of fish habitat regulation that is not
only a solution in search of a problem, but is an all-
out shut down of community and economic development.
I appreciate that the sponsor has indicated she does
not wish to shut down any development, therefore, I
encourage thorough review of the impacts of each and
every provision suggested in the bill. The provisions
in HB 199 would ensure that development of new mines,
oilfields, wastewater plants, highways, you name it,
would not be built. At a time of billion dollar
deficits, these are not the kinds of bills Alaskans
should be pursuing.
Because the protection of fish is a high priority for
Alaska's mining industry, AMA is and always has been a
willing participant for workgroups to review the
current process and find improvement. However, HB 199
is severely flawed, and should be abandoned in favor
of productive discussion that enhances our regulatory
process while continuing to grow the State economy.
We do have a letter on the record reflecting our
position of NO on HB 199.
7:49:05 PM
LOUIE FLORA, Lobbyist, Alaska Center, stated tentative support
for HB 199, acknowledging the industry concerns. However, he
said, citizen participation and involvement in the habitat
protection process is timely, as the pendulum has swung far to
the other side during the last 20-30 years. The proposed
legislation could serve to help move the needle back to a more
moderate level of participation on behalf of the public. An
important aspect are the requirements for public notice, as an
average of 3,000 habitat permits are issued per year, and none
are public noticed despite being for major developments. He
said he looks forward to continued work on the issue and future
hearings.
7:51:19 PM
REPRESENTATIVE KREISS-TOMKINS referred to the committee packet
and the BBFA legal memorandum, 4/10/17, paraphrased by Mr.
Parker, and expressed interest in hearing comments from user
groups who have had direct experience with the permitting
process.
CHAIR STUTES closed public testimony, and announced HB 199 as
held.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB199 Additonal Document G. Y. Parker Comments.pdf |
HFSH 4/12/2017 6:00:00 PM |
HB 199 |