Legislature(2017 - 2018)GRUENBERG 120
01/23/2018 10:00 AM House FISHERIES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| 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 | |
HB 199-FISH/WILDLIFE HABITAT PROTECTION; PERMITS
10:02:53 AM
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."
CHAIR STUTES stated that as the first order of business for the
year, the committee will be introducing a committee substitute
(CS) for HB 199. She said that she is aware that the bill has
generated a lot of discussion and interest, and she is excited
to continue the discussion. She pointed out that the committee
worked quite a bit on the bill over the interim, engaging the
administration, industry, municipalities, and other interested
stake holders to address concerns and suggestions. She said
that as a result [of those efforts] many changes have been
incorporated into the new CS. She said that she thinks the
committee will find the bill has been significantly narrowed in
scope compared to the version in committee last year. She
admitted that there will likely be many more changes to the bill
and that her intent is to hold multiple hearings and hear
testimony from industries, the administration, salmon advocates,
and other interested entities so that the public process shapes
this legislation. She encouraged all stake holders to engage in
this process so there can be a true balance between responsible
development and protecting the salmon resource that Alaskan's
hold dear. She said she would entertain a motion to bring this
CS before the committee.
10:04:17 AM
REPRESENTATIVE FANSLER moved to adopt the proposed committee
substitute (CS) for HB 199, Version 30-LS0438\N, Bullard,
1/19/18, as a working document. There being no objection,
Version N was before the committee.
10:05:49 AM
MATT GRUENING, Staff, Representative Louise Stutes, Alaska State
Legislature, presented the changes made to HB 199 on behalf of
Representative Stutes, prime sponsor. He began his presentation
by stating that the old fiscal notes had been removed from the
bill because of significant changes. He said the prime
sponsor's staff are awaiting new fiscal notes and expects them
to show less of an impact. He then introduced the document
titled "Summary of Changes HB 199 Version J to N" [included in
the committee packet]. He explained that this document was
organized differently than others because there had been five
drafts of the bill since the committee had last seen it.
Wording in the new version is now different and many sections
were completely reordered. He said his approach to the document
was to identify a change and then state when "conforming changes
were made throughout the bill."
MR. GRUENING stated that the bill creates a rebuttable
presumption that certain areas are anadromous fish habitat and
that this presumption triggers the Alaska Department of Fish and
Game's (ADF&G) authority to issue fish habitat permits for those
areas. He said the bill also creates a two-tiered permitting
system containing minor and major anadromous habitat permits.
He also pointed out that there has been a tendency for people to
focus on major anadromous habitat permits, but approximately 70-
80 percent of all permits will be in the minor category. He
said that a minor permit can be issued on the same day and that
this efficiency will not be impacted by the proposed bill. He
also said that there is an opportunity for people to request
reconsideration of a determination on their permit applications.
However, reconsiderations may be denied because the commissioner
typically relies on the same information that he used when
making the initial determination.
10:08:26 AM
MR. GRUENING continued his synopsis of the bill by restating
that most permits will be in the minor permit category, and he
added that the category determination depends on the presence or
absence of "significant adverse effects." He said that he would
go over that issue where it is specifically defined in the bill.
He summarized by saying that HB 199 creates enforceable
standards and an increase in public process - two specific
issues in the letter from the Board of Fisheries to the
legislature. He pointed out that current Title 16 statutes
state that the commissioner shall not issue a permit if it does
not ensure proper protection of fish and game; however, proper
protection of fish and game is not currently defined in statute.
He also said the parts of the proposed bill dealing with
"significant adverse effects" and "permits and mitigation" were
the "meat" of the enforceable standards language.
MR. GRUENING pointed out that for minor permits, a determination
by the commissioner must be posted online and include the reason
for the determination. He said this requirement was a product
of the desire to create better public process in habitat
permitting.
MR. GRUENING stated that major permits will include a 30-day
public comment period, and that although this requirement
worried some individuals, it pertains to an issue the Board of
Fisheries requested in its letter to the legislature. As such,
he said it was appropriate to include better public process; a
process that would allow opportunity to address local or
regional concerns, as well as concerns from individuals acting
on their own.
10:10:24 AM
REPRESENTATIVE NEUMAN asked if there was a way for the committee
to look at the current regulations, to better understand the
differences created by the proposed bill.
MR. GRUENING responded by saying that he can provide a brief
synopsis of the types of permits, types of activities, and
waterbodies, but for detailed explanations he would defer to the
people available online. Nonetheless, he said ADF&G basically
uses an "841 permit," which falls under the Fishway Act, AS
16.05.841.
10:11:34 AM
REPRESENTATIVE NEUMAN suggested to Chair Stutes that he go over
this information with staff at a different time to avoid
interrupting the day's schedule.
10:14:09 AM
MR. GRUENING began his presentation of the Summary of Changes
document with the changes in the bill title, on page 1, lines 1-
3, in Version N. He said lines 1-2 in the previous version of
the bill included the language, "An act establishing general
fish and wildlife permits and major and minor anadromous permits
for certain activities"; however, in Version N the phrase
"general fish and wildlife permits" was deleted. He said that
this change occurred because the former "general fish and
wildlife permit" has been relocated as a subset of the new
"minor andadromous permit". He also said the terms "other fish"
and "wildlife" were removed throughout the bill because it was
Chair Stutes intent that HB 199 be an anadromous fish Act. He
stated that comments from industry and stakeholders indicated
that the term "wildlife" was vague. He said that while most of
these changes have been made to Version N, there are two
locations where these terms have not yet been removed. The term
"other fish" is on page 14, line 21, and "wildlife" is still
present on page 14, lines 23 and 24.
10:16:06 AM
MR. GRUENING said that he identified all other instances where
"other fish" and "wildlife" were removed from the bill, so
committee members could form their own opinions based on the
context in which they are used.
MR. GRUENING said that the phrase "relating to fishways" was
added to the title as a housekeeping measure to reflect the
proposed repeal of AS 16.05.851. As an existing statute, AS
16.05.851 provides an exception to a Fishway Act requirement
that the commissioner be notified when a dam or obstruction is
placed in a fish bearing stream [and a fish pass is deemed
impractical]. The exception allows a lump sum payment to the
state's Fish and Game Fund and establishment or increase of
onsite or offsite hatchery production. He said there is no
intent for HB 199 to allow a situation where people could pay
money or start a hatchery if they blocked fish passage. [The
proposed repeal of the AS 16.05.851 is both the previous version
of the bill and the current Version N. The language "relating
to fishways" was added only to Version N. In both versions of
the bill, AS 16.05.861 has been amended to remove the references
to AS 16.05.851 found on page 1, lines 8-9 and lines 13-14.]
10:17:55 AM
MR. GRUENING said the final change to the title was removal of
the phrase "relating to the protection of fish and game habitat"
and replacing it with "relating to the protection of anadromous
fish and other fish habitat." This change occurs on page 1,
lines 2-3 of Version N. He said this remaining reference to
"other fish" and "wildlife" will be removed from the title if it
is the committee's intent to do so.
REPRESENTATIVE NEUMAN suggested that there be further discussion
at a later date on the removal of the language dealing with
"other fish" and "wildlife", because of impacts to other aspects
of the ecosystem, including plants.
10:18:52 AM
MR GRUENING moved on to the next set of changes identified in
the Summary of Changes document, at 16.051.871 Determination of
anadromous fish habitat. He first identified the changes in
16.05.871(a) located on page 2, lines 2-4, of Version N. He
began by saying that the previous version of the bill required
the commissioner to specify in regulation the "water bodies or
portions of them" that are important anadromous fish habitat,
including the waters that are covered under the presumption in
16.05.871(c) of Version N. 16.05.871(a) now designates "rivers,
lakes, and streams", instead of "water bodies or portions of
them", as the types of waters the commissioner must identify.
He said that this was existing language from AS 16.05.871(a) and
was consistent with waters already cataloged. He reminded the
committee that conforming changes were made throughout the bill
to reflect this.
10:20:43 AM
MR. GRUENING said that the term "important" was removed from
16.05.871(a) in the previous version of the bill because its use
in describing "anadromous fish habitat" created a potential
loophole that could allow individuals to avoid the permit
requirement. Removal of the word "important" recognized that an
area would either be specified as anadromous fish habitat or it
would not. He noted that this change was the will of prime
sponsor and that conforming changes were made throughout the
bill.
10:21:25 AM
REPRESENTATIVE TARR asked if there would be a conflict with the
Anadromous Fish Catalog if this new language is adopted.
MR. GRUENING said that he is not 100 percent sure about this,
but said he believed that this process will include changing
language in the Catalog. Mr. Gruening said that the drafters
also asked if the waters in the catalog were to be revisited, to
determine what is and is not important. However, he said that
there was no intent to revisit waters currently listed in the
catalog.
10:22:28 AM
MR. GRUENING continued to the next set of changes identified in
the Summary of Changes document, located at 16.05.871(b) on page
2, lines 5-13, of Version N. He said that the previous
subsection (b) was deleted and a new subsection was inserted to
clarify when the department should conduct a site-specific
determination to determine if a river, lake, or stream is
anadromous. In addition, it was not clear in the previous draft
who would make the request for a determination, the type of
information required to support the department's determination,
or how the site-specific determination relates to the anadromous
waters presumption.
10:23:12 AM
MR. GRUENING said that this change was for the point of clarity
and to spell out the process in greater detail. He also said
that the new wording requires that the department's
determination be posted on the state's online public notice
system.
10:23:30 AM
REPRESENTATIVE NEUMAN pointed out that a determination by the
commissioner should be based on specific standards. He said
that without standards "you have nothing to identify by" and a
determination could change with different commissioners.
10:23:55 AM
MR. GRUENING responded by saying that the bill spells out
standards for the commissioner to base a determination and that
he could explain this when he presents the sectional analysis to
the committee.
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.871(c), found on page
2, lines 14-23 of Version N. He pointed out that he had already
mentioned one element of this modification, that waters presumed
to be anadromous were narrowed from "permanent or seasonal
surface water bodies" in the previous version of the bill to
"rivers, lakes, and streams" in Version N. Rivers, lakes and
streams presumed to be anadromous were further narrowed by the
requirement that they be connected to waters already in the
Anadromous Waters Catalog. He said it is a common-sense
approach to presume an area is anadromous if it is connected to
an area that has already been designated as being anadromous.
He said the exception to this would occur when there is a
barrier, such as a waterfall, that prevents fish from entering
the area in question. In such cases, waters upstream of the
barrier would be excluded from the presumption and waters below
the barrier would be included. He then provided additional
detail on this change, stating that the new presumption language
mirrors that which currently exists in the Forest Resources and
Practices Act (FRPA), with the exception that the FRPA uses a
stream gradient to define a barrier to upstream fish passage.
He added that under the FRPA, a stream gradient must be eight
percent or greater to be considered a barrier to fish passage.
10:26:04 AM
MR. GRUENING said that use of the FRPA gradient of eight percent
was rejected because recent scientific data shows fish can swim
upstream in gradients that exceed eight percent; coho and
chinook have been observed swimming upstream in gradients of 10
to 12 percent.
REPRESENTATIVE TARR asked if the permanent barrier could be a
natural or a man-made barrier.
MR. GRUENING said a barrier could be man-made, but it would
require a "major" permit. He concluded by saying the answer to
Representative Tarr's question would be "yes and no."
REPRESENTATIVE KREISS-TOMKINS stated his understanding that
downstream of a permanent barrier there is a rebuttable
presumption [that the area is anadromous], and above a barrier
it is assumed that the waters are not anadromous. He then asked
if there was a mechanism to catalog an area as anadromous if
fish are found above what was initially thought to be a barrier
to fish passage.
MR. GRUENING said that mechanism is not currently in the bill;
however, it does exist in the current permitting process. He
said that ADF&G can make an anadromous determination if fish are
discovered during any permitting project. He said that he has
given this issue some thought and thinks it is "a little bit of
a gray area" in the bill.
10:28:11 AM
REPRESENTATIVE KREISS-TOMKINS asked for confirmation on his
understanding that this change "in a certain sense goes backward
from the status quo just above these permanent barriers."
MR. GRUENING said that this is correct, although the FRPA
currently has that presumption, and that it applies only above
the barrier. He said that one difference between HB 199 and the
FRPA, regarding barriers, is that the language in HB 199 refers
to a "permanent physical barrier." He also said the issue of
what constitutes a physical barrier is not clear, as it may, for
example, be a beaver dam that may not completely block fish
passage and may not exist from year to year. He said that
"Other than what applies to the FRPA, that presumption does
exist, but not for these types of permits right now."
REPRESENTATIVE NEUMAN asked how the issue of barriers would
affect dams that are used by communities for water and
electricity.
MR. GRUENING responded by saying that this question relates to
Representative Tarr's question regarding natural versus man-made
barriers. He said that he thinks the type of physical barrier
needs to be fine-tuned in the bill. He added that although a
permit would be required for a dam, it is not the intent of the
proposed legislation to permit a dam project and then establish
the waters above the dam as no longer being anadromous. He said
that the Representative Neuman's point was well taken. He
acknowledged there needs to be a distinction for this in the
bill and suggested the committee could consider the issue "in
the next round."
10:30:22 AM
MR. GRUENING pointed out that 16.05.871(c), on page 2, lines 14-
23, in Version N states that the presumption includes "lands
beneath" anadromous rivers, lakes, and streams, and this
language was not included in the previous draft. He stated that
it should be clear that the bed of a river is part of the
anadromous fish habitat given that it is the site of egg
deposition.
MR. GRUENING continued to the next set of changes identified in
the Summary of Changes document, found in 16.05.871(d) on page
2, lines 24-26, in Version N. He said this new subsection
states that the presumption established under 16.05.871(c) -
that certain rivers, lakes, streams, the lands beneath them, and
adjacent riparian areas are anadromous fish habitat - is
applicable only to AS 16.05.871-901. He said this was added to
clarify that the presumption applies only to fish habitat
permitting law. He said there was a concern among the fishing
community that the bill would affect the regulatory authority of
the Board of Fisheries regarding fishery openings and closures
near salmon streams. However, an opinion from the Department of
Law eliminates this concern. He reiterated that HB 199 does not
affect commercial, subsistence, or any other type of fishing.
He said that the Department of Law's opinion is specific to
fishery openings and closures, but there is another "fix" in the
bill that addresses the concern that someone might need a permit
to fish recreationally in a river. He said that these were
technical aspects of the bill but they close loopholes and
ensure that the bill does not pertain to fishing as an impact to
fish.
10:32:31 AM
MR. GRUENING continued to the next set of changes identified in
the Summary of Changes document, found in Sec. 16.05.871(e)
paragraphs (1)-(3), in Version N. These changes are located on
page 2, line 28 through page 3, line 3. He described these as
structural changes intended to provide greater clarity.
MR. GRUENING stated that 16.05.871(e)(1) maintains the
requirement that all waters identified under 16.05.871(a) will
continue to be listed in the Anadromous Waters Catalogue.
MR. GRUENING stated that 16.05.871(e)(2) requires the department
to develop regulations for conducting the site-specific reviews
and determinations under 16.05.871(b). He added that anyone can
request a site-specific determination from ADF&G on an area
presumed to be anadromous. He said this means that a
presumption of an area being anadromous habitat "is not the
final word."
MR. GRUENING stated that 16.05.871(e)(3) allows ADF&G to define
in regulation the scope of the adjacent riparian areas that are
considered anadromous fish habitat. He said that it seemed
unusual that ADF&G cannot currently specify in regulation, or
define, riparian areas important to streams already catalogued
as anadromous waters. That authority currently resides with the
Department of Natural Resources (DNR); therefore, there would be
overlapping authority between the two departments on this issue
if the proposed language is adopted. He said biologists should
probably be the ones making this determination. In addition, he
said that for purposes of expediency, the applicant would not
have to go to DNR and initiate an additional process to request
a riparian area be reserved for the protection of fish. He said
that giving ADF&G the authority to designate riparian areas as
anadromous habitat would create a direct connection between the
biologists and their ability to accomplish their task of
protecting fish.
10:34:50 AM
REPRESENTATIVE TARR recognized that they did not currently have
fiscal notes before them but said she would like to see
information in the fiscal notes regarding the number of site-
specific evaluations that might occur given the proposed
language in 16.05.871(e)(2) of Version N.
MR. GRUENING said that he would get back to Representative Tarr
on that matter and make sure it is considered when drafting the
fiscal note.
REPRESENTATIVE FANSLER brought attention to Mr. Gruening's
statement that overlapping authority would exist between ADF&G
and DNR under 16.05.871(e)(3) of the proposed bill, and he asked
if Mr. Gruening could provide other examples where overlapping
authority exists.
MR. GRUENING said that based on his discussions with biologists
and staff at DNR and the Department of Transportation & Public
Facilities (DOTPF), there are hardly any projects that don't
have overlapping authority. He added that because DOT, DNR, and
ADFG consider different types of lands and water in large
projects, they work together to complete segments of different
permits. He said that this already occurs, but he would provide
a specific list of permits and activities that require the
interaction of these three departments.
REPRESENTATIVE NEUMAN noted that the Alaska soil and water
conservation districts conducted a lot of research and monitored
the quality of waterways. He wondered if "those folks" could be
included in discussions on the bill.
10:37:28 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document, found at Sec. 16.05.871(f),
paragraphs (1) and (2), on page 3, lines 4-11, of Version N.
MR. GRUENING said Sec. 16.05.871(f)(1) narrows the definition of
anadromous fish habitat and that this reflects the change in
Sec. 16.05.871(a). He said that this is repetition of a change
he identified earlier and that it defines the waters that fall
under the presumption of anadromous habitat.
MR. GRUENING said that the change at 16.05.871(f)(2) was a point
of much debate. It is new language, which states that a river
or stream includes the foreshore, or intertidal, portion of that
river or stream. This was included because it could otherwise
be unclear where anadromous habitat terminates in the downstream
portion of a stream or river. He said it answers the question
of whether the habitat would include, for example, estuarine
areas. He said the proposed language might deserve further
consideration, but it seemed to meet the definition of what was
intended.
10:39:11 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document, at Sec. 16.05.875 Anadromous
Fish Habitat Permit. These changes are found in Version N on
page 3, line 12 through page 5, line 1.
MR. GRUENING said Sec. 16.05.875(a), on page 3, lines 13-16,
refers to a new "general" minor permit that can provide an
exemption to the requirements stated in 16.05.875(a), paragraphs
(1) and (2). He said that the new general minor permit is a
blanket permit for certain types of activities. He said that it
is essentially for rural areas where there may be, for example,
an all-terrain vehicle (ATV) stream crossing. This authority
allows the commissioner, without an existing permit or
application, to permit certain types of activities under certain
conditions on a regional or geographical basis. He can
stipulate the conditions under which the activity may occur and
the mitigation measures that must be taken. The commissioner
may issue such a permit only if it does not adversely affect
salmon habitat. He also said that the general minor permit
differs from the regular minor permit in that there are a
different set of standards regarding the types of activities and
conditions that can be permitted.
10:41:03 AM
REPRESENTATIVE TARR said she wanted a clarification on the
difference between the "general" minor permit and the "regular"
minor permit. She stated her understanding that the regular
minor permit is also at the discretion of the commissioner and
that this new general permit is a "carve out" of a minor permit.
MR. GRUENING responded by saying yes and added that the general
permit was not in the previous version of the bill. He said it
existed as the general fish and wildlife permit, but the intent
now is for a minor general anadromous permit, which is different
in its standards in that it does not require anyone to apply for
a permit. He reiterated his example of the commissioner issuing
a regional or geographic permit for ATV crossings in a rural
area. Regarding the differences in standards between the
general minor and regular minor permits, he said that a general
minor permit is more stringent, requires less of an impact to
habitat, and could require someone to have written authorization
from the department prior to engaging in the permitted activity.
He said it would not apply in a situation where someone wanted a
"blanket permit to drill 20 wells" in an area.
10:42:55 AM
REPRESENTATIVE CHENAULT pointed out that Mr. Gruening had
mentioned "rural" several times regarding the use of a general
permit, and he asked if the general permit could be used in
municipalities such as the Kenai Peninsula, Matanuska-Susitna,
or Fairbanks North Star Boroughs.
MR. GRUENING answered yes and said that he used rural areas as
an example because that is where the typical concerns were
present. He said that use of the general minor permit is not
regional or population specific and it can be applied anywhere.
REPRESENTATIVE CHENAULT reminded the committee of Mr. Gruening's
point that the Forest Practices Act has a different standard for
defining a permanent barrier to fish passage. He asked if it
would be possible to have the different statutes regarding this
issue agree with one another.
MR. GRUENING said that would be up to the prime sponsor and that
this was more a question of intent. However, he stated that the
eight percent gradient in the Forest Practices Act was viewed as
insufficient by the sponsor. He stated that he would be
reluctant to speak to the Chair's intent on that matter without
first discussing the matter with her.
10:44:37 AM
MR GRUENING moved on to the next changes identified in the
Summary of Changes document, at 16.05.875(a) paragraphs (1) and
(2). These changes are found on page 3, line 12, through page
5, line 1, of Version N. Mr. Gruening stated that Sec.
16.05.875(a) was a significant change from the previous version
of the bill. He said that language in the previous version of
the bill required a person to obtain an anadromous fish habitat
permit before conducting an activity that "may use, divert,
obstruct, pollute, or otherwise affect" a "water body or
portion" that was specified as "important" anadromous fish
habitat. The new version of this section mirrors wording in
current statute AS 16.05.871(b) regarding what types of
activities would require a permit. The bill now requires a
person to obtain an anadromous fish habitat permit before
"constructing a hydraulic project that uses wheeled, tracked,
excavating, or log-dragging equipment in the bed of a river,
lake, or stream" or "conducting an activity that has the
potential to use, divert, obstruct, pollute, or change the
natural flow or bed of a river, lake, or stream" if the area is
identified or presumed to be anadromous fish habitat. He
reiterated that this language stemmed from an effort to not
"reinvent the wheel" on the types of activities that require a
permit. He said that this change from the previous bill was not
related to a specific request but was more related to the issues
of enforceable standards and public process.
MR. GRUENING went on to say that this addresses another concern
he had previously mentioned, that of unintended activities such
as commercial or recreational fishing requiring a permit because
they may be loosely interpreted as activities that may
"otherwise affect a water body". He said that over the last 60
years, the term "use" has not been interpreted such that it
would include commercial fishing; therefore, it is unlikely it
would be in the future. This was the reasoning that went into
the decision to use existing statutory language in Version N
when describing the activities requiring a fish habitat permit,
rather than the language drafted in the previous version of the
bill. He said that he wanted to make it clear to everyone that
a lot of effort went into addressing this concern.
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document, found at 16.05.875(b), on page
3, line 30 through page 4, line 7 of Version N.
MR. GRUENING referenced the language in the previous version of
the bill, Version J, on page 4, lines 6-14, regarding the
requirement for an application. He said Version J referenced
16.05.883 regarding the requirements for an application.
However, 16.05.875(b) under Version N references 16.05.883(a),
to differentiate between a regular minor permit and the new
general minor anadromous permit, established under 16.05.883(b)
of Version N, which does not require an application or a permit
and has separate conditions for issuance. He said that
conforming changes, consisting of inserting 16.05.883(a)
throughout Version N, make it clear that a reference was being
made to the regular minor permit and not the general minor
permit.
10:48:20 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document, found at 16.05.875(f) on page
4, lines 25-30, of Version N. He stated that this change
equates to the removal of the 30-day public comment period
associated with the department's determination that an activity
requires a major anadromous fish habitat permit. [The 30-day
comment period associated with the issuance of a major
anadromous habitat permit remains in Version N of the bill.]
The comment period for the determination was removed because it
seemed cumbersome and unnecessary given that it pertained only
to the determination and because there would be a comment period
for the issuance of the permit itself. He added that the
comment period was removed in recognition of expediency
regarding development.
10:49:14 AM
REPRESENTATIVE TARR pointed out that the 30-day comment period
would occur earlier in the process than any other comment
period. She said that this would provide an earlier opportunity
to identify concerns, and she asked if this was considered.
MR. GRUENING responded by saying that even without a 30-day
comment period there would still be an opportunity to ask for a
reconsideration of a determination. He added that the
commissioner can respond to a reconsideration with a denial and
that further reconsideration would have to occur at the [Alaska]
Supreme Court. He said there is no opportunity to continually
"stall out" a project.
10:50:55 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.877 "Significant
adverse effects." These changes are implemented in Version N on
page 5, lines 2-23.
MR. GRUENING stated that the language in the previous version of
the bill, Version J, at 16.05.877(a)(1), consisting of "impair
the quality, quantity, or flow, of water necessary for a
waterbody to support anadromous fish habitat", was deleted. He
said that similar and more refined language now appears in Sec.
16.05.877(a)(3)(A) and (a)(3)(B) of Version N, on page 5, lines
11-14.
MR. GRUENING stated that 16.05.877(a)(3) of Version J was also
deleted. He said that language had defined a "significant
adverse effect" as impairing "the quality or flow of a water
body that is not anadromous fish habitat but is necessary to
preserve the quality or flow of a water body that is anadromous
fish habitat". He said that the word "indirectly" had already
been removed from the definition and this seemed to be
consistent with that change.
MR. GRUENING said that 16.05.877(a)(5) under the previous
version of the bill, Version J, was also deleted. He said that
this section had defined a significant adverse effect as
"adversely affecting other fish and wildlife that depend on the
health and productivity of that anadromous fish habitat". He
said that this was consistent with the removal of the terms
"other fish" and "wildlife" throughout the bill. He reiterated
that while "other fish" and "wildlife" are not unimportant, it
was the intent of the prime sponsor that this be an anadromous
fish Act.
10:52:45 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.877(a)(1), found in
Version N on page 5, lines 6 and 7. He stated that this was a
new paragraph that defines a "significant adverse effect" as one
that could interfere with the spawning, rearing, or migration of
anadromous fish at any life stage." He said that this language
comes from an old draft regulation, and that it speaks more to
the biology of the fish than their habitat. He said there was a
desire to balance habitat with biology.
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.877(a)(2), found on
page 5, lines 8 and 9 of Version N. He said that in the
previous version of the bill, the definition of a "significant
adverse effect" included one that will "impede or prevent the
safe, timely, and efficient upstream and downstream passage of
fish to areas of anadromous fish habitat." He said this has
been narrowed in the current version to: "impede the safe and
efficient upstream and downstream passage of anadromous fish".
He added that this was a common-sense modification, as the term
impede means to prevent.
10:54:12 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document, at 16.05.877(a)(3), found on
page 5, line 10, of Version N. He indicated that the word
"significantly" was structurally added so that it applies to
subparagraphs (A), (B), and (C). The purpose of this was to
create a higher threshold that would avoid interpretation of
something very minor as having a negative effect.
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at Sec. 16.05.877(a)(3)(A),
found in Version N, on page 5, lines 11 and 12. He said that
this is a new subparagraph that defines a significant adverse
effect as "significantly impairing water quality or water
temperature necessary to support anadromous fish." It is a
reduction in the language used in the previous bill regarding
significant adverse effects as it removes language pertaining to
waters that are not anadromous habitat.
10:55:24 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at Sec. 16.05.877(a)(3)(B),
located in Version N on page 5, lines 13 and 14. He said that
this is a new subsection that defines a significant adverse
effect as "significantly reducing instream flows or altering the
natural flow regimes necessary to support anadromous fish and
anadromous fish habitat."
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.877(a)(3)(C), present
in Version N, on page 5, lines 15-17. He said that the previous
version of the bill was altered from "reduce aquatic diversity,
productivity, stability, or function" to "significantly diminish
the overall aquatic diversity, productivity, stability, or
function of all or portions of a river, lake, or stream that is
anadromous fish habitat." He said that use of the words
"overall" and "significantly" raises the threshold at which an
effect becomes adverse. He added that the language, significant
adverse effects, does not infer that a permit will not be
issued; it means that the project calls for a major permit
rather than a minor permit.
10:56:45 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.877(a)(4), found on
page 5, lines 18 and 19, of Version N. This is a new subsection
that defines a significant adverse effect as "creating
conditions known to have adverse effects on, or cause increased
mortality of, anadromous fish at any life stage." He said that
this was another effort to not focus only on impacts to habitat
but to consider impacts to the actual fish and their biology as
well. He said that there may be instances where fish are being
affected while there are no impacts to their habitat.
10:57:29 AM
MR. GRUENING moved on to the next set of changes identified in
the Summary of Changes document at 16.05.883, found on page 6,
line 18, through page 8, line 2, of Version N. This portion of
the bill pertains to the minor anadromous fish habitat permit.
10:57:34 AM
REPRESENTATIVE FANSLER asked Mr. Gruening to revisit the
statement Mr. Gruening had just made regarding new language in
the current version of the bill originating from previously used
definitions. He asked if the language Mr. Gruening was about to
explain to the committee had a similar origin or if it was new
language.
MR. GRUENING said that he didn't know if the wording is the same
as what had been used in a previous draft, as he did not have
the draft document with him. However, he confirmed that it was
language that had not been adopted in regulation.
10:58:36 AM
REPRESENTATIVE FANSLER said he appreciated hearing when new
language is based on a prior draft or document. He said he
would also appreciate a follow-up, in some manner, to show the
committee the origin of previously used language.
MR. GRUENING said that there were many revisions to the bill and
that is why he did not have this type of information on hand.
10:59:07 AM
REPRESENTATIVE CHENAULT pointed out that Mr. Gruening had
indicated that some language had come from prior draft
regulations, and he said he would be interested to learn where
they originated and why they were not put forth in previous
legislation or regulations.
MR. GRUENING stated that he would provide this information.
10:59:41 AM
MR. GRUENING returned to his explanation of the changes at
16.05.883 regarding minor anadromous fish habitat permits, found
on page 6, line 18-page 8, line 2, of Version N. He said
subsections (b)-(g) give the commissioner the authority to issue
a general minor anadromous fish habitat permit for minor
activities under certain conditions. Most of the language
existed in the previous version of the bill but that it was
under the general "fish and wildlife" permit section. It has
now been renamed as the "general minor anadromous fish habitat
permit." He said that, as referenced in the title change, the
terms "other fish" and "wildlife" were removed, leaving only
references to "anadromous fish" throughout this section. He
said there were also several changes to the conditions under
which the commissioner may issue a general minor anadromous fish
habitat permit and he went on to explain these to the committee.
MR. GRUENING began his explanation of 16.05.883, at subsection
(b), paragraph (1), found on page 6, lines 23 and 24, of Version
N. He said that in the previous version of the bill,
16.05.873(b)(1) contained the language, "the activity, singly or
in combination with other factors, poses little potential to
significantly affect fish and wildlife habitat." He said that
in Version N, 16.05.883(b)(1) states that "the activity will not
cause significant adverse effects to anadromous fish habitat."
He said that the reference to "other factors" in the previous
version implied that there might be something other than the
primary activity involved in the impact, and it seemed
appropriate to "dial that down." He also said that it did not
seem necessary to distinguish between activities singly and in
combination, because it is understood that there may be more
than one activity involved under a general permit. He said that
this was a simplification and an attempt to avoid identifying
"other factors" that don't have anything to do with the primary
activity under consideration.
11:01:54 AM
MR. GRUENING identified the next change in the Summary of
Changes document as a deletion from the previous version of the
bill, on page 2, line 28. It consisted of language specifying
that a general permit could only be issued if "the activity does
not relate to industrial development". He said that this was
deleted because industrial development was difficult to define
and because there may be instances where the commissioner would
want to issue a permit that was related to industrial
development yet still not significantly or adversely affect fish
habitat. He said there did not appear to be an opportunity for
any loopholes with this change, as activities that adversely
affect anadromous habitat could not be allowed under this
permit. He said that this was a "clean-up" that allows the
commissioner some discretion in how blanket permits are issued,
and it lends toward not overly hampering development.
11:02:52 AM
MR. GRUENING continued with his explanation of the Summary of
Changes document, moving on to 16.05.881(d) on page 7, lines 8-
15, of Version N. He said the language on lines 8 and 9 was
added to allow the commissioner to "issue a regional or
geographical authorization for an activity subject to a general
minor permit." The commissioner may also require a person to
"obtain written authorization from the department." This
language provides discretion for the commissioner to say whether
the permit will be a regional/geographical permit or if there
will be a requirement to obtain written authorization from the
department.
MR. GRUENING continued with the Summary of Changes document,
moving on to 16.05.883(g) of Version N, on page 8, lines 1 and
2. He said that this subsection is new; it is seen "throughout
the bill"; and was added to clarify that the definition of
"anadromous fish habitat" is consistent with the rest of the
bill.
11:03:50 AM
MR. GRUENING continued with his explanation of the Summary of
Changes document, at 16.05.885 "Major anadromous fish habitat
permit", found on page 8 of Version N. He said the first change
under this section was at subsection (b), on page 8, lines 23-28
of Version N. He said that the previous subsection was deleted,
and a new subsection was inserted. He said that the new
language requires the commissioner or an applicant to collect
the needed information for the commissioner to determine whether
a proposed activity should be permitted as a minor or major
anadromous permit. He said that it also provides the
commissioner, at his/her discretion, with the ability to recover
fees equal to the cost incurred by the department in collecting
the necessary information to make the determination under
subsection (a) of this section. Previously, this subsection had
required the applicant to collect the information. The new
language under Version N states that ADF&G will collect the
necessary information and may, as opposed to shall, recover the
cost of doing so. He said the new language was less
prescriptive and provided more flexibility with the permitting
process.
11:04:54 AM
REPRESENTATIVE NEUMAN said that the bill seemed to be giving the
commissioner more discretionary authority over issuance of the
permits. He said he sees a need for a structure because
decisions can change politically or for other reasons. He said
he would like to see "something in there that defines that, so
that, whether it's asking other groups or getting other
information, to me that just seems like a whole lot of authority
for the commissioner (indisc.) without a structure of why and
how the decisions were made."
MR. GRUENING asked for clarification on Representative Neuman's
comment, asking if it pertained to the commissioner's discretion
to require fees.
REPRESENTATIVE NEUMAN said yes, and that the legislative
discovery process will allow the committee to "work through
that."
11:05:55 AM
MR. GRUENING continued his explanation of the Summary of Changes
document, moving on to 16.05.885(f)(2) subparagraphs (A) and
(B), of Version N, on page 9, line 31 through page 10, line 7.
He said that these are new subparagraphs that clarify how ADF&G
will measure whether a project will cause substantial damage.
Specifically, the language clarifies how the department will
assess whether anadromous fish will recover to natural or
historic levels after the project is completed. He added that
this was another layer of definitions to aid in providing
greater detail. He said that feedback from industry and others
indicated that there was a lack of definitions in the bill.
11:06:43 AM
MR. GRUENING continued with the Summary of Changes document,
addressing 16.05.887 "Permit conditions and mitigation
measures." He said changes to this section were found in
subsections (a) through (e), on page 12, line 4-page 13, line 10
of Version N.
MR. GRUENING said that in the previous version of the bill, the
language of 16.05.887, subsection (a), paragraph (3) was
deleted. It had stated that the commissioner may not permit an
activity if it cannot be carried out in a manner that will
ensure the proper protection of other fish and wildlife habitat.
He said this was consistent with the intent to remove the terms
"other fish" and "wildlife" from the bill.
11:07:27 AM
MR. GRUENING continued his explanation of the changes to
16.05.887(a), on page 12, lines 14 and 15, of Version N. He
said that the language in the previous bill stated an activity
cannot be permitted if it would "convert a wild fish population
to a hatchery-dependent fish population". He said that language
has been altered in the current version to: "will replace or
supplement a wild fish population with a hatchery dependent fish
population". He said this change reflects the difference
between the term "convert" and the phrase "replace or
supplement". He said that the word "convert" basically means
"replace"; however, the word supplement takes into consideration
avoidance of introducing a hatchery stock into an existing wild
population.
11:08:19 AM
MR. GRUENING moved on to 16.05.887(a)(4) on page 12, lines 16
and 17, of Version N.
11:08:22 AM
REPRESENTATIVE NEUMAN pointed out that there is discussion in
the legislature to allow different organizations to work on
projects that supplement fish habitat and to hatch eggs. He
asked how that these projects would be affected if they "are not
hatchery" and whether they would have to be regulated by ADF&G.
MR. GRUENING answered that this would not affect those efforts
because the stipulations and mitigation measures would be in
relation to an andadromous fish habitat permit being issued. It
would only apply if the mitigation measures proposed to the
commissioner include restoring or enhancing the affected stream
with hatchery produced fish.
11:10:27 AM
The committee took a brief at-ease from 11:10 a.m. to 11:10 a.m.
11:10:50 AM
MR. GRUENING returned to the Summary of Changes document, at
16.05.887(a)(4) of Version N. He said that the previous version
of the bill read that an activity cannot be permitted if it
would "dewater or relocate a water body or a portion of a water
body, for 5 or more years, that the commissioner has specified
as important, or as presumed to be important, to anadromous fish
habitat under AS 16.05.871(a)." He said that under Version N,
16.05.887(a)(4) now reads, "will dewater anadromous fish habitat
for a period likely to cause permanent or long-lasting adverse
effects to that habitat". He said that the phrase "5 or more
years" was replaced with "a period likely to cause permanent or
long-lasting adverse effects" to allow ADF&G more flexibility in
determining the appropriate period. Feedback from the
department indicated that in some cases a period of 5 years may
be too little and in others it may be too much.
11:12:08 AM
MR. GRUENING moved on to 16.05.887(a)(5), on page 12, lines 18
and 19, of Version N. This is a new subparagraph specifying
that a permit may not be issued for an activity if it "will
permanently relocate all or portions of a river, lake, or stream
if the relocation will disrupt the migration or passage of
anadromous fish."
MR. GRUENING interjected that under Version N, 16.05.887 "Permit
conditions and mitigation measures." provides the "side bars"
for the conditions when the commissioner may not issue a permit.
He said that the conditions specified under this section must be
met for a permit to be issued. He noted that while this section
specifies when a permit may not be issued, 16.05.877
"Significant adverse effects." identifies whether the project
requires a major or a minor permit.
MR. GRUENING resumed his explanation of 16.05.887(a)(5). He
said this section was added because there were comments from
multiple sources indicating that there will be instances where a
river will need to be permanently relocated. Therefore, the
phrase, "if the relocation will disrupt the migration or passage
of anadromous fish", was added as a condition for those
instances when it is necessary to permanently relocate an
anadromous river.
11:13:31 AM
REPRESENTATIVE NEUMAN described a hypothetical situation where a
river runs through an area selected for a proposed mine, and he
asked Mr. Gruening if such a river could be relocated
permanently if fish passage was not interrupted for a long
period.
MR. GRUENING responded that the scenario described by
Representative Neuman was conceivable. He stated that anyone or
any industry including the mining industry could work with ADF&G
and other agencies to relocate the river responsibly. He added
that in the previous version of the bill, the concerns relating
to the terms "dewater" and "relocate" were contained in one
individual paragraph at Sec. 16.05.887(a)(5); however, in
Version N, they are split into paragraphs (4) and (5) so that
there could be a different standard or condition for each of the
two terms. He also added that he had met with the mining
association and, while they had not mentioned an example like
Representative Neuman's, the bill was crafted so that it would
apply to mining operations as well.
11:15:27 AM
MR. GRUENING continued his explanation of the Summary of Changes
document at 16.05.889 "Reconsideration of determinations." The
first change he identified was at 16.05.889(a) of Version N, on
page 13, line 13. He said that the phrase "person adversely
affected" was changed to "interested person" for consistency
purpose, as interested person was already utilized in the
section dealing with the commissioner's initial determination.
He added that the drafters of the bill had indicated to him that
the two terms were not significantly different, as nearly anyone
could say that they were adversely affected.
11:16:48 AM
MR. GRUENING continued with his explanation of the Summary of
Changes document at 16.05.891 "Exemption for emergency
situations.", found in Version N, on page 13, line 30. This
section pertains to emergency situations where an oral permit
may be issued for necessary instream work. The one change in
this section was the addition of a "state agency" as an entity
that may receive an oral permit for emergency situations. This
change provided flexibility to the previous version of the bill,
Version J, which identified only "a riparian owner" as the
recipient of an oral permit.
11:17:35 AM
MR. GRUENING continued with his explanation of the Summary of
Changes document, moving on to 16.05.899 "Applicability of
permitting requirements.", found in Version N, on page 14, line
25 through page 15, line 11. He said that this new section is
very significant because it contains the existing "facility,
activity, operation, or project" exemption. He said that there
was an intent in this language to be very broad and not exclude
anyone. He quoted portions of the language from 16.08.889 which
read in its entirety as follows:
Sec. 16.05.899. Applicability of permitting
requirements. (a) Notwithstanding AS 16.05.875(a),
and except as provided in (b) of this section, a
facility, activity, operation, or project that has in
full force and effect, on the day before the effective
date of sec. 3 of this Act, all required state
authorizations relating to the protection of
anadromous fish and anadromous fish habitat
(1) shall continue to be authorized under AS
16.05.871 - 16.05.901 and the regulations adopted
under 16.05.871 - 16.05.901, as those sections and
regulations read on the day before the effective date
of sec. 3 of this Act, and may continue to renew those
authorizations and obtain minor authorization
modifications under AS 16.05.871 - 16.05.901 and the
regulations adopted under AS 16.05.871 - 16.05.901, as
those sections and regulations read on the day before
the effective date of sec. 3 of this Act; and
(2) is not required to obtain an anadromous
fish habitat permit under AS 16.05.883 or 16.05.885.
(b) The exemption provided by (a) of this section
does not apply to a facility, activity, operation, or
project that significantly expands or increases in
scope, area, or frequency, or otherwise takes action
outside, those actions for which it is authorized on
the day before the effective date of sec. 3 of this
Act.
MR. GRUENING said that in laymen's terms, the intent is for
those permitted under the current law to stay under the current
law, including for renewals, in perpetuity, unless they
significantly expanded the scope of their permit. He gave an
example of an expanded permit as a situation where a permittee
might want to change a discharge point. In general, it would be
a change that exceeds the scope of the original permit. He said
that this section addressed concerns by municipalities and
industry as well as others. He said that a specific concern
from municipalities and DOTPF was the potential loss of the
ability to permit mixing zones if the previous version of the
bill was adopted as written. Mr. Gruening said there was intent
to not overly burden municipalities at a time when they cannot
afford it. In addition, he mentioned concern for oil and gas
exploration companies with existing projects that have already
been permitted. He summarized by saying that new activities
would fall under the new proposed laws, and that the exemption
for existing facilities seemed reasonable, as it had the least
amount of impact for ongoing operations.
11:20:00 AM
MR. GRUENING stated that this concluded his explanation of the
Summary of Changes HB 199 Version J to N document.
11:20:20 AM
REPRESENTATIVE EASTMAN asked if the term "interested person" is
different in any way from any person, legally speaking.
MR. GRUENING answered by saying no, it is any person. He added
that anyone can say they have an interest, legally speaking.
MR. GRUENING, in response to a question from Representative
Neuman, offered his understanding that the term "person" will
include corporations. However, he said that he needs to be 100
percent clear on this and will "triple check" it to be sure that
his answer is correct. He also said that there is no intent
under HB 199 for permit applications to be submitted solely by a
person.
11:21:35 AM
CHAIR STUTES thanked Mr. Gruening for his presentation. She
also reminded everyone of her previous statement indicating that
there would be additional meaningful changes to HB 199 as the
committee works through it. She encouraged committee members
and stakeholders to reach out to her office if they have any
ideas, concerns, or issues. She said a collaborative effort is
needed to update Title 16; the intent of the legislation is not
to diminish the value of any one resource in the state. She
stated that the intent of the legislation is to maintain a
sustainable, healthy, renewable resource in our fisheries; that
is the crux of the proposed legislation.
CHAIR STUTES said she believes that by working with all the
stake holders, the committee can develop a good document. She
recounted, "you know what they say when you're in the
legislature: "If you have a bill that everybody likes a little
bit and doesn't like a little bit, you've got a winner.'" She
said that HB 199 would be on the front burner and the committee
will hear it plenty of times until everyone is comfortable with
it and has had an opportunity to provide input and ask their
questions.
11:24:15 AM
REPRESENTATIVE CHENAULT reiterated Chair Stutes' statement that
there would be numerous opportunities for future hearings on HB
199, and he said that a number of people have questions for the
administration and the departments that are involved in the
bill.
[HB 199 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 199 ver N 1.19.18.pdf |
HFSH 1/23/2018 10:00:00 AM |
HB 199 |
| HB 199 ver N Sectional Analysis 1.22.18.pdf |
HFSH 1/23/2018 10:00:00 AM |
HB 199 |
| HB 199 ver J.PDF |
HFSH 1/23/2018 10:00:00 AM |
HB 199 |
| HB199 Additional Document BOF letter to Legislature.pdf |
HFSH 1/23/2018 10:00:00 AM |
HB 199 |
| HB 199 ver N Summary of Changes 1.23.18.pdf |
HFSH 1/23/2018 10:00:00 AM |
HB 199 |