Legislature(2005 - 2006)CAPITOL 124

01/27/2006 08:30 AM FISHERIES


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08:24:24 AM Start
08:34:20 AM HB328
09:28:16 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 328 BAN MIXING ZONES IN SPAWNING AREAS TELECONFERENCED
Moved CSHB 328(FSH) Out of Committee
HB 328-BAN MIXING ZONES IN SPAWNING AREAS                                                                                     
                                                                                                                                
[Contains discussion of SB 225, the companion bill]                                                                             
                                                                                                                                
8:34:20 AM                                                                                                                    
                                                                                                                                
CO-CHAIR THOMAS  announced that the  only order of  business would                                                              
be  HOUSE  BILL NO.  328,  "An  Act prohibiting  mixing  zones  in                                                              
freshwater spawning waters."                                                                                                    
                                                                                                                                
REPRESENTATIVE  HARRIS  moved  to  adopt  CSHB  328,  Version  24-                                                              
LS1273\L,  Bullock,  1/23/06,  as  the working  document.    There                                                              
being no objection, Version L was before the committee.                                                                         
                                                                                                                                
REPRESENTATIVE  PAUL SEATON, Alaska  State Legislature  testifying                                                              
as prime  sponsor of HB 328,  called the committee's  attention to                                                              
the  new language  on  page  2, lines  6-10,  which  allows for  a                                                              
municipal  wastewater  mixing  zone once  authorized  to  continue                                                              
throughout  the  useful  life  of   the  facility,  invasive  fish                                                              
species  not precluding;  and page  2,  line 12  which provides  a                                                              
revised definition  of [spawning]  "area".   He explained  that in                                                              
current  departmental  regulations  spawning  area is  defined  as                                                              
"the time  when the fish  are depositing  eggs," and in  Version L                                                              
it's defined  as a  "physical area  [which is]  protected  for all                                                              
the time" that the  fish are spawning, eggs are  incubating in the                                                              
gravel, and through  the early stages of development.   Responding                                                              
to  a  question  he  said  that  the  bill  defines  the  physical                                                              
spawning area to  include the entire time that the  fish, eggs, or                                                              
young  are present.   He  also pointed  out  the recently  arrived                                                              
letters of  support, in the committee  packet, from the  cities of                                                              
Palmer  and Valdez,  the Kachemak  Bay  Conservation Society,  and                                                              
the Southeast Dive Fisheries Association.                                                                                       
                                                                                                                                
8:39:17 AM                                                                                                                    
                                                                                                                                
LYNN  TOMICH KENT,  Director,  Division  of Water,  Department  of                                                              
Environmental   Conservation  (DEC),   directed  the   committee's                                                              
attention  to  DEC's  additional  written  comments  in  the  bill                                                              
packet,  including  a  letter  of   response  to  the  committee's                                                              
questions  from  the previous  hearing  [January  20,  2006].   In                                                              
response to  a question,  she clarified that  DEC opposes  HB 328,                                                              
and  pointed  out  that  the  packet   contains  the  department's                                                              
specifically listed reasons for that opposition.                                                                                
                                                                                                                                
8:40:55 AM                                                                                                                    
                                                                                                                                
CO-CHAIR LEDOUX asked:                                                                                                          
                                                                                                                                
     Would it  be fair  to say that,  while [DEC] feels  that                                                                   
     the  bill  is not  necessary,  in  light of  the  recent                                                                   
     regulations,  that the  department sees  nothing in  the                                                                   
     bill which  would actually  hurt either sports  fishing,                                                                   
     subsistence fishing or commercial fishing.                                                                                 
                                                                                                                                
MS. KENT stated:                                                                                                                
                                                                                                                                
     The  department  is opposed  to  the bill  for  multiple                                                                   
     reasons, in  part because the  bill goes beyond  what we                                                                   
     [DEC] feel  is necessary in  order to protect fish.   We                                                                   
     think  that there is  sound science  available ...  that                                                                   
     allows  us  to,  in  certain   circumstances,  authorize                                                                   
     mixing  zones  without  having a  negative  impact  upon                                                                   
     fish, and that  the bill goes beyond what  is necessary;                                                                   
     to the  point where  it can  actually harm economic  and                                                                   
     social development in communities.                                                                                         
                                                                                                                                
CO-CHAIR  LEDOUX  asked  again,  "Is  it  fair  to  say  that  the                                                              
department  sees  nothing  in  the  bill  which  would  harm"  the                                                              
fishing industries.                                                                                                             
                                                                                                                                
MS. KENT responded, "I don't believe so."                                                                                       
                                                                                                                                
8:42:14 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KAPSNER asserted  that this  bill focuses  heavily                                                              
on salmon  and commercial users,  and reminded the  committee that                                                              
federal law mandates  subsistence use to be the  highest priority.                                                              
As a policy  making group, she questioned whether  the legislature                                                              
should  reflect  the federal  priority  for  compliance  purposes.                                                              
She said  that she  is "wondering [that]  if, by this  regulation,                                                              
we're [Alaska  Legislature] trying  to subvert federal  intent for                                                              
prioritization of resources."                                                                                                   
                                                                                                                                
MS.  KENT  responded  that  the regulations  adopted  by  DEC  are                                                              
protective  of   all  fish  species.     She  conceded   that  the                                                              
regulations may appear  to focus on salmon, due  to their economic                                                              
benefit  to the  state, but  maintained that  the regulations  "do                                                              
meet our mandate to protect all species of fish."                                                                               
                                                                                                                                
REPRESENTATIVE  KAPSNER  commented that,  while  salmon  are of  a                                                              
huge  economic  benefit  to  the state,  the  other  fish  species                                                              
represent  a parallel  importance  to Alaska's  subsistence  users                                                              
and should be equally protected.                                                                                                
                                                                                                                                
8:44:15 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ELKINS inquired  whether this  bill would  have an                                                              
impact on the Alaskan mining industry.                                                                                          
                                                                                                                                
MS.  KENT replied  that  with the  passage  of HB  328, 32  placer                                                              
mines  currently  operating  under temporal  mixing  zone  permits                                                              
would  not  receive  re-authorization   by  DEC.    To  a  further                                                              
question,  she stated  that the  bill should  not be considered  a                                                              
"one  industry"  bill  as  it  also  affects  domestic  wastewater                                                              
dischargers,   and  drinking   water   facilities   that  have   a                                                              
wastewater  discharge,   as  well  as  placer  mines   and  future                                                              
industries.                                                                                                                     
                                                                                                                                
8:45:34 AM                                                                                                                    
                                                                                                                                
NORMAN  KROENING,  Owner,  Alaska  Digestive  Technology,  Limited                                                              
Liability Company  (LLC), described  the sewage treatment  project                                                              
that his  company initiated  in Kotzebue  three years  ago, funded                                                              
by  a grant  from Village  Safe  Water.   He  explained how,  four                                                              
months  after the  introduction of  non-pathogenic organisms  into                                                              
the cities  discharge system,  Kotzebue was  able to minimize  its                                                              
municipal sewage  concerns by  effectively eliminating  80 percent                                                              
of  the waste  solids along  with  100 percent  of the  associated                                                              
odors,  grease,  and oil  in  its sewage  lagoon.    Based on  the                                                              
success of  the Kotzebue project,  this patented process  has been                                                              
implemented in villages  across Canada, and he  questioned why the                                                              
technology is being  overlooked as a means to  mitigate the Valdez                                                              
and Palmer  mixing zone  issues.  Although  DEC has  received full                                                              
disclosure  from Alaska  Digestive Technology  LLC, regarding  the                                                              
Kotzebue  project, he  maintained  that the  department  officials                                                              
have  withheld  the  information  from  the  committee,  and  have                                                              
remained unwilling  to acknowledge  his company's technology  as a                                                              
more  cost effective,  and  environmentally  sound alternative  to                                                              
the status quo of mixing zones.                                                                                                 
                                                                                                                                
8:53:30 AM                                                                                                                    
                                                                                                                                
PAUL BARNES,  commercial salmon  fisherman, stated his  support of                                                              
HB  328,  and  he  pointed  out   that  the  Alaskan  Constitution                                                              
provides  a  mandate  for  protection  and  conservation  of  fish                                                              
resources  in  a   sustainable  manner  for  current   and  future                                                              
generations.   He recalled that  when the administration  proposed                                                              
regulatory  changes in  2004, over  2,000  Alaskans responded,  of                                                              
which  95 percent  opposed  the  rule changes.    Also, under  the                                                              
latest DEC  proposal, over 450  citizens responded, with  the same                                                              
percentage  opposed.    Additionally,  he reported  that,  to  his                                                              
knowledge,  industrial development  has  not  been hindered  under                                                              
the  existing  DEC   regulations.    With  the   salmon  fisheries                                                              
currently  on  the  rebound, he  expressed  concern  for  imposing                                                              
regulatory  changes  that could  have  a  negative impact  on  the                                                              
salmon industry.   Finally, he noted the importance  of protecting                                                              
other species of fish as provided for in HB 328.                                                                                
                                                                                                                                
8:55:28 AM                                                                                                                    
                                                                                                                                
RUSS MADDOX stated his support for HB 328, and said:                                                                            
                                                                                                                                
     The  DEC  approving  of  [mixing   zones]  and  allowing                                                                   
     pollution  in the  streams  [is] similar  to the  health                                                                   
     department  allowing  [the use  of] your  favorite  stew                                                                   
     pot  for a  honey bucket  ... as  long as  you rinse  it                                                                   
     out.                                                                                                                       
                                                                                                                                
8:56:14 AM                                                                                                                    
                                                                                                                                
RAY  SENSMEIER,  Tribal  Council Member,  Yakutat  Tlingit  Tribe;                                                              
First  Grand  Vice President,  Alaska  Native  Brotherhood  (ANB),                                                              
stated  his support  for  HB  328, and  he  said that  the  Native                                                              
entities  he   represents  have  submitted   resolutions  opposing                                                              
mixing zones.  He  pointed out that over half of  Alaska's streams                                                              
have  yet  to  be  documented  as  anadromous,  which  raises  the                                                              
concern  that once  a  permit is  allocated  [on a  non-documented                                                              
watershed], revocation  may not be possible and  the "damage would                                                              
already  have been  done."    He opined  that  with  the price  of                                                              
precious metals  on the  rise and  given the extensive  activities                                                              
of  the  oil  industry in  Alaska,  significant  impacts  will  be                                                              
incurred [on  Alaskan watersheds]  without the protection  of this                                                              
bill.                                                                                                                           
                                                                                                                                
8:58:10 AM                                                                                                                    
                                                                                                                                
KRISTEN  SMITH,   Executive  Director,   Copper  River   Watershed                                                              
Project,  stated support  for HB  328,  and he  reported that  the                                                              
salmon industry  generates a per  annum average of $20  million to                                                              
the economic  base of the Cordova  area.  She noted that  the fish                                                              
are a public  resource that should  be managed for the  benefit of                                                              
the public,  and allowing mixing  zone pollution in  public waters                                                              
does not  satisfy a public benefit.   Also, she pointed  out that,                                                              
under  temporal use  management,  residual hydrocarbon  pollutants                                                              
would  be present and  harmful in  a stream  throughout the  year,                                                              
proving a  detriment to  the health  of the developing  salmonids.                                                              
She  highlighted   the  overwhelming  public  opposition   to  the                                                              
proposed DEC regulations.                                                                                                       
                                                                                                                                
9:01:40 AM                                                                                                                    
                                                                                                                                
ROBERT  RUFFNER,   Executive  Director,  Kenai   Watershed  Forum,                                                              
stated support  for HB 328, and  he asserted:   the municipalities                                                              
have  passed  resolutions  in  opposition  to  mixing  zones,  and                                                              
adopted  appropriate   regulations;  the  public   have  expressed                                                              
widespread  opposition; and  the  governor has  indicated, in  his                                                              
2006  State  of the  State  Address,  that  the people  have  been                                                              
heard.  He begged  to understand why these [DEC]  regulations have                                                              
gone forward.                                                                                                                   
                                                                                                                                
9:03:31 AM                                                                                                                    
                                                                                                                                
RICHARD HAHN stated  support for HB 328, and  he expressed concern                                                              
whether, given the  passage of HB 328, and SB 225,  there would be                                                              
enough  votes  to  override  a  possible  veto  by  the  governor.                                                              
Referencing Commissioner  McKie Campbell's testimony  [January 20,                                                              
2006],  he  restated  the  commissioner's  question,  "What  would                                                              
happen if these  bills were not successful?"  He  pointed out that                                                              
Alaskans  should  learn  lessons   from  around  the  globe  where                                                              
industrial companies  are contaminating major rivers,  and also to                                                              
take note  of who pays  the bills for  watershed restoration.   He                                                              
also referenced the  recent court case in which the  Board of Fish                                                              
and Game knowingly  violated their own regulations  regarding wolf                                                              
control,  and  asked,  "What  would  prevent  DEC  from  similarly                                                              
violating    its   own   promulgated    pollution   mixing    zone                                                              
regulations?"   Finally, he  noted the  recent West Virginia  coal                                                              
mining tragedy stating:                                                                                                         
                                                                                                                                
     The  mining companies  simply paid the  small fines  for                                                                   
     safety  violations, and  continued  to operate,  killing                                                                   
     people.   Ergo,  I would  hope that  HB 328  and SB  225                                                                   
     have sufficient  penalties  to discourage violations  of                                                                   
     banned   pollution   mixing    zones   by   unscrupulous                                                                   
     developers.                                                                                                                
                                                                                                                                
9:05:59 AM                                                                                                                    
                                                                                                                                
THOMAS BOEDEKER,  Manager,  City of Soldotna,  stated support  for                                                              
HB 328, and he  pointed out that the City of  Soldotna has adopted                                                              
a resolution  opposing mixing  zones in  anadromous fish  spawning                                                              
areas.  Furthermore,  the bill is in accord with  the needs of the                                                              
municipality.                                                                                                                   
                                                                                                                                
9:06:59 AM                                                                                                                    
                                                                                                                                
BENJAMIN  JACKINSKY,  set-net  fisherman,  stated support  for  HB                                                              
328, and he  noted that the public  has made it clear  that mixing                                                              
zones should  be limited.   He  said that  this bill supports  the                                                              
public's  wishes by  providing a  permanent statute.   He  pointed                                                              
out  that each  year he  pays a  two  percent tax  on his  fishing                                                              
income to aid  in fishing enhancement,  and to that end,  it is in                                                              
his best  interest to  see that mixing  zones are well  regulated.                                                              
Furthermore, the  wild Alaskan salmon market would  be discredited                                                              
if the rearing  waters for the  salmon are compromised  by the use                                                              
of mixing  zones.  He  stressed that clean  water is  essential to                                                              
protect the fish and ensure their continued marketability.                                                                      
                                                                                                                                
9:08:13 AM                                                                                                                    
                                                                                                                                
KURT  HERSCHLEB,   Member,  Cordova  District   Fishermen  United,                                                              
stated support  for HB 328,  and he pointed  out that it  would be                                                              
foolish  and   shortsighted  not  to  protect   the  environmental                                                              
interests,  as the  purity  of  Alaska's environment  will  become                                                              
more valuable by virtue of scarcity and rarity.                                                                                 
                                                                                                                                
9:09:24 AM                                                                                                                    
                                                                                                                                
CATHERINE  CASSIDY stated  support for  HB 328,  and she  stressed                                                              
that  mixing  zones  "tend  to  turn  into  a  public  subsidy  of                                                              
industry."   She highlighted  how tax  dollars are used  routinely                                                              
to  cleanup,  mitigate,  or  restore  the  downstream  results  of                                                              
industrial mixing zones.   Further, she said that  mixing zones in                                                              
freshwater   fishing   streams   would   jeopardize   subsistence,                                                              
personal  use, tourism, and  commercial fishing  industries.   She                                                              
urged the committee to move the bill forward.                                                                                   
                                                                                                                                
9:10:27 AM                                                                                                                    
                                                                                                                                
ERIK HUEBSCH,  commercial  fisherman, stated  support for  HB 328,                                                              
and  SB 225,  and he  reported that,  in  2004, the  Environmental                                                              
Protection  Agency  (EPA)  issued   over  3,000  fish  consumption                                                              
advisories,   across  48   states,  alerting   residents  of   the                                                              
potential health  risks associated with eating  contaminated fish.                                                              
He maintained  that the numbers  of fish advisories issued  are on                                                              
the  rise, and  expressed concern  that watersheds  in Alaska  may                                                              
one  day  receive  similar  postings.   He  recommended  that  the                                                              
language  in both  bills  be strengthened  to  protect vital  fish                                                              
rearing habitat.  In closing he stated:                                                                                         
                                                                                                                                
     I  think this  administration  is  so beholding  to  big                                                                   
     industry that  if the Exxon Valdez spill  happened today                                                                   
     you  could bet  ... [Governor]  Murkowski would  declare                                                                   
     Prince William Sound a 'mixing zone.'                                                                                      
                                                                                                                                
9:12:19 AM                                                                                                                    
                                                                                                                                
PAUL   SHADURA,   II,   Executive    Director,   Kenai   Peninsula                                                              
Fishermen's  Association,  Member,   Kenai/Soldotna  Fish  &  Game                                                              
Advisory Committee,  stated support for HB 328  and he paraphrased                                                              
from  a statement,  which read  as  follows [original  punctuation                                                              
provided]:                                                                                                                      
                                                                                                                                
     The Kenai  Peninsula Fishermen's  Association is  a Cook                                                                   
     Inlet  Fisheries Association.    We have  operated as  a                                                                   
     voice for the  industry for over 50 years.   Primarily a                                                                   
     set-net organization,  we do  represent members  who are                                                                   
     drift   fishermen,   crewmembers,    and   other   local                                                                   
     businessmen.                                                                                                               
                                                                                                                                
     We do  support HB 328  and SB 225  at this time,  though                                                                   
     we feel  the regulatory  process is  the preferred  way,                                                                   
     unfortunately  DEC  and  DNR  remains  uncooperative  in                                                                   
     responding  and  working  with the  public  on  refining                                                                   
     current regulations.                                                                                                       
                                                                                                                                
     We  have  requested  a  consistency   review  for  other                                                                   
     statutory  and  regulatory   language  that  contradicts                                                                   
     current  mixing  zone  regulations,  and  question  such                                                                   
     regulations and statutes that might supersede.                                                                             
                                                                                                                                
     We  still  remain confused  to  the  role ADF&G  has  in                                                                   
     protecting the  aquatic resources for  sustainability or                                                                   
     development,  and  we  believe   the  department  has  a                                                                   
     limited  role.    We  believe  that  this  violates  the                                                                   
     public trust  provisions and  we would prefer  a primary                                                                   
     or  equal role  by the  department to  ensure access  by                                                                   
     the aquatic resource users.                                                                                                
                                                                                                                                
9:14:06 AM                                                                                                                    
                                                                                                                                
MERLE THOMPSON, fisherman, stated support for HB 328, and he                                                                    
explained that, in dealing with state agencies, it is important                                                                 
to understand the "law of diminishing reality," to wit:                                                                         
                                                                                                                                
     It's like  an upside down bottle  of good wine  with the                                                                   
     cork  in  it.   You've  got  your  scientists  and  your                                                                   
     biologists  in the  body of  the wine  bottle, which  we                                                                   
     haven't  heard very  much from;  you've  got the  bottle                                                                   
     neck,  which [represents  the] department  heads at  DEC                                                                   
     and  Habitat [OHM&P]...;  you've  got your  cork in  the                                                                   
     bottle, which  [represents] the commissioners;  and then                                                                   
     you've  got  the  placer  of  the  cork,  which  is  the                                                                   
     governor.   You're  not going  to  get any  of the  good                                                                   
     science  out of the  bottle as  long as  the cork  is in                                                                   
     it.                                                                                                                        
                                                                                                                                
MR.  THOMPSON  stated that  he  has  consulted  with a  number  of                                                              
fisheries  biologists  recently,  including  one  of  the  leading                                                              
specialists  on   chemical  toxins  related  to   mining  and  oil                                                              
industries,  and each  agreed that  the  proposed DEC  regulations                                                              
are  a  bad  idea.   Relating  the  life  cycle  of  various  fish                                                              
species,  he explained  that  the  pollutants run  downstream  and                                                              
will  affect the  developing fish.   He  maintained that  relevant                                                              
scientific information  has not  been brought forward  and offered                                                              
statistics from  the EPA, which  holds hard rock  mining companies                                                              
as  the top  producers of  industrial toxic  waste.   The cost  to                                                              
cleanup mining sights is very high, and he said:                                                                                
                                                                                                                                
     The  Government  Accounting  Office (GAO)  has  actually                                                                   
     chastised   recently   the   EPA   for   "weak   federal                                                                   
     oversight,  illegal  loopholes,  and  corporate  shills,                                                                   
     that  compound  the  [cleanup] cost,  and  increase  the                                                                   
     chances  that  mining  companies   can  walk  away  from                                                                   
     cleaning up these messes.                                                                                                  
                                                                                                                                
MR. THOMPSON  explained how  the cyanide  process, used  by placer                                                              
miners,  creates a  myriad of  toxic  and radioactive  substances,                                                              
particularly in wet  or cold climates, which require  difficult if                                                              
not  impossible containment  measures.   He  cited several  mining                                                              
companies which  have caused significant environmental  damage due                                                              
to toxic waste  discharge or containment failure.   In closing, he                                                              
described  the failure  of the  DEC approved  tests and  standards                                                              
used  to detect  and  mitigate coal  bed  methane's (CBM's),  thus                                                              
creating  a recent  crash in the  trout populations  of the  Rocky                                                              
Mountain States.                                                                                                                
                                                                                                                                
9:21:31 AM                                                                                                                    
                                                                                                                                
PAULA  TERREL, Water  Quality  Issues Coordinator,  Alaska  Marine                                                              
Conservation Council  (AMCC), stated support  for HB 328,  and she                                                              
said that  there is a  need for this  legislation due to  the long                                                              
running  controversy over  the  use of  mixing  zones in  spawning                                                              
streams.  She opined that enacting statute is the best option.                                                                  
                                                                                                                                
9:23:32 AM                                                                                                                    
                                                                                                                                
MATT SHADLE,  Member, Homer  City Council,  stated support  for HB                                                              
328, and  SB 225, and  he said that Homer  also has passed  a city                                                              
resolution to deal  with mixing zone issues.   He offered applause                                                              
for the politicians who support these bills.                                                                                    
                                                                                                                                
9:25:15 AM                                                                                                                    
                                                                                                                                
DONALD BREMNER,  Natural Resources  Coordinator, Southeast  Inter-                                                              
Tribal Fish and  Wildlife Commission, noted that  hooligan [smelt]                                                              
were not  specified in  HB 328.   He stated  that, although  DEC's                                                              
testimony  purports  that: "This  bill,  if passed,  would  affect                                                              
streams,  and rivers,  and  lakes  that don't  have  any of  these                                                              
species present.   But [he said] I don't see where  that is in the                                                              
[proposed]  regulations."   He stressed  the need  to expand  this                                                              
bill for  increased water  quality protection  in anticipation  of                                                              
utilizing  Alaska's  pristine, non-anadromous  freshwater  streams                                                              
as  supply  sources  for  the  world   market,  bulk-water  supply                                                              
industry; a heretofore unrealized prime resource.                                                                               
                                                                                                                                
9:27:14 AM                                                                                                                    
                                                                                                                                
CO-CHAIR THOMAS  pointed out the  recent arrival of a  letter from                                                              
Southeast Alaska  Conservation Council (SEACC) supporting  HB 328,                                                              
and  also  a letter  of  opposition  from  the Council  of  Alaska                                                              
Producers.                                                                                                                      
                                                                                                                                
9:27:46 AM                                                                                                                    
                                                                                                                                
CO-CHAIR  LEDOUX moved to  report CSHB  328, Version  24-LS1273\L,                                                              
Bullock,    1/23/06,   out    of    committee   with    individual                                                              
recommendations  and the accompanying  fiscal notes.   There being                                                              
no  objection,  CSHB  328(FSH)  was  reported  out  of  the  House                                                              
Special Committee on Fisheries.                                                                                                 

Document Name Date/Time Subjects