Legislature(2023 - 2024)BARNES 124
03/29/2023 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB125 | |
| HB95 | |
| Presentation(s): Alaska Gasline Development Corporation Update | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 125 | TELECONFERENCED | |
| + | HB 95 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
HB 95-NATL. RES. WATER NOMINATION/DESIGNATION
1:09:53 PM
CHAIR MCKAY announced that the next order of business would be
HOUSE BILL NO. 95, "An Act relating to designation of state
water as outstanding national resource water; and providing for
an effective date."
1:10:23 PM
REPRESENTATIVE RAUSCHER, as the prime sponsor, introduced HB 95
and provided the history of the Clean Water Act. He directed
attention to the PowerPoint presentation, titled "HB 95:
National Resource Water Nomination/Designation" [hard copy
included in the committee packet]. He explained that this
matter has been presented to the legislature in the past, and
the purpose of the bill is to give the legislature the authority
to designate a water body as Tier III, as seen on slide 2. He
stated that Tier III waters are also known as the Outstanding
National Resource Waters (ONWR). He showed slide 3, titled
"Clean Water Act" and said the Act mandates that by 1983 the
states implement water quality standards. These standards
include designation and classifications, water quality criteria,
and anti-degradation policies.
REPRESENTATIVE RAUSCHER moved to slide 4, which showed a graphic
representation of the three tiers. He described Tier I waters
as those which are polluted and do not meet state standards and
accept additional pollution discharges. Tier II waters meet
water quality standards but can also accept some pollution
discharges. He described Tier III waters as "the best of the
best," or ONWR.
REPRESENTATIVE RAUSCHER continued to slide 5, titled "40 Code of
Federal Regulations 131.12(A)(3)," which read as follows
[original punctuation provided]:
"Where high quality waters constitute an outstanding
national resource, such as waters of the national and
state parks and wildlife refuges and waters of
exceptional recreational or ecological significance,
that water quality shall be maintained and protected."
REPRESENTATIVE RAUSCHER explained that the U.S. Congress has
empowered every state to protect its most outstanding water
bodies with the highest levels of protection. He argued that
the water quality must be maintained, and no new pollution
discharges should be allowed. He reiterated that the U.S.
Congress has said that some lakes and rivers are so unique and
so important they should not be dumping grounds for mining and
other types of waste.
1:14:35 PM
The committee took a brief at-ease.
1:14:38 PM
REPRESENTATIVE RAUSCHER continued the presentation on HB 95,
moving to slide 6, which addressed the Department of
Environmental Conservation (DEC), and the nomination process
steps for Tier III. He stated that nominations are sent to
legislators who would introduce legislation. He pointed out
that the nomination would usually go to the legislator whose
district contains the proposed Tier III body of water. Once the
bill is introduced, it would go through the thorough legislative
bill process, and if passed, it would be written into law and
the body of water would be designated as Tier III.
Randy Bates, Director, Division of Water, Alaska Department of
Environmental Conservation, explained that providing for a Tier
III designation would bring certainty to the process and would
codify in statute a consistent practice on how lands and waters
across the state are designated for conservation. This would be
by legislative approval rather than by a director, commissioner,
or judicial action; therefore, it would not be a political
process. He emphasized that each body of water under
consideration would go through the complete legislative process.
Nominations for Tier III waters would be brought to the
district's legislator and travel through the legislative process
just like any other bill. When the bill passes, the body of
water is designated as Tier III.
REPRESENTATIVE RAUSCHER moved to slide 7, which showed a map of
Alaska with the names and locations of five bodies of water
nominated for Tier III status. He explained that these have not
yet received Tier III designation; however, they are in line.
He suggested that if the system being considered in this bill is
incorporated, it would speed up the process.
1:18:07 PM
RYAN MCKEE, Staff, Representative George Rauscher, Alaska State
Legislature, on behalf of Representative Rauscher, prime
sponsor, presented slide 8, titled "Alaska Constitution, Article
8, Section 2" which read as follows [original punctuation
provided]:
"The Legislature shall provide for the utilization,
development, and conservation of all-natural resources
belonging to the state, including land and waters, for
the maximum benefit of its people."
MR. MCKEE moved to slide 9, titled "Alaska Constitution, Article
8, Section 13," which read as follows [original punctuation
provided]:
"All surface and subsurface waters reserved to the
people for common use, except mineral and medicinal
waters, are subject to appropriation. Priority of
appropriation shall give prior right. Except for
public water supply, an appropriation of water shall
be limited to stated purposes and subject to
preferences among beneficial uses, concurrent or
otherwise, as prescribed by law, and to the general
reservation of fish and wildlife."
MR. MCKEE concluded the presentation by pointing out that
the proposed legislation would codify DEC's concurrent Tier
III policy, expediting the nomination of current bodies of
water.
1:19:22 PM
MR. MCKEE presented the sectional analysis [hard copy included
in the committee packet], which read as follows [original
punctuation provided]:
Section 1: Amends AS 46.03 by adding a new section
that:
Establishes AS 46.03.085(a). Through statute, the
legislature may designate water of the state as an
outstanding national resource water.
Establishes AS 46.03.085(b). Unless the body of water
has been designated as an outstanding national
resource water can it be managed like so.
Section 2: Applies for an immediate effective date.
MR. MCKEE called attention to the zero fiscal note.
1:20:17 PM
MR. MCKEE, in response to a question from Chair McKay, stated
that there are currently no Tier III waters in the state.
CHAIR MCKAY noted the five rivers which are the potential
candidates for Tier III status. He expressed the assumption
that these rivers are on state land; however, he questioned the
effects if any of the rivers flowed on Native or federal lands
also.
REPRESENTATIVE RAUSCHER deferred the question to DEC.
1:21:53 PM
REPRESENTATIVE DIBERT, referring to slide 7, questioned the
application process.
REPRESENTATIVE RAUSCHER responded that any group or person can
nominate a body of water and begin the process by contacting a
local state legislator. Significant information must be
provided to answer any questions the legislator may have. He
expressed the belief that it is a duty for a legislator to
follow through with such legislation.
1:24:14 PM
MR. BATES stated that DEC supports HB 95 in its current form.
He explained that ONWR are commonly referred to as Tier III
waters. They are defined as exceptional recreational or
ecologically significant waters which shall be maintained and
protected from degradation. A Tier III designation bestows the
highest level of water quality protection under the federal
Clean Water Act and restricts activities on the waters and
adjacent land. The restricted activities include road building,
seafood processing, recreational activities that require certain
types of permits, wastewater and stormwater discharge systems,
landfills, quarries, and other types of activities which would
result in degradation of the waters. He stated that in 2018
Alaska created a process to designate Tier III waters, as
required by the Clean Water Act, and, since this time, no new
discharges have been allowed to Tier III waters. He added that
this has long-term implications for both adjacent and upstream
areas.
1:28:27 PM
MR. BATES stated that DEC supports this bill which formalizes
the designation of Tier III waterways by statute. Outlining the
three reasons for DEC's support, he read from a prepared
statement, which read as follows:
1. The legislative process provides a full and public
process, engaging all the interested and affected
parties that might have an interest in this particular
designation including communities, residents, users of
the area, developers and conservationists. And as
well, those agencies that may share responsibility for
managing those areas and waters.
2. The legislative process allows for a full
discussion of the consequences, restrictions, and
impacts other of activities and potential activities
by the designation for the future and foreseeable
activities.
3. He commented that this was critically important.
The legislative body in the process is the proper
forum to establish land and water use designations.
DEC is pleased to return that power to the legislature
in this instance.
1:29:22 PM
MR. BATES maintained that providing for a Tier III designation,
as structured in HB 95, would bring certainty to the process and
codify a consistent practice on how lands and waters across the
state would be designated for conservation by legislative
approval, rather than by a director, a commissioner, or judicial
action. To answer a previous question, he explained that there
are no Tier III designated waters in Alaska, but there are five
pending applications, with the first in 2012 and the most recent
in 2017. He stated that DEC had responded to these proposals by
suggesting the proponents contact their legislators to seek
support. He offered to share copies of the five proposals with
the committee. He described the proposals as ranging from a
single-page letter to a 50-page document, which included the
nominating group's research and water quality measurements.
1:31:23 PM
CHAIR MCKAY asked why the 2012 application for the designation
of a Tier III body of water has not been addressed 11 years
later. He questioned whether DEC had not processed the
designation.
MR. BATES explained that the 2012 nomination is for the Koktuli
River, which is one of the headwaters for Bristol Bay. He
stated that the list of petitioners is extensive. He stated
that DEC had most recently responded to the application in 2019,
reaffirming the policy that Tier III designations are the
purview of the legislature. He reiterated to the committee that
it is not appropriate for a commissioner or a department to make
these designations. He stated that the department supports the
proposed legislation because it moves the power and authority to
the legislature. He expressed the opinion that the legislature
is the proper body for dealing with this matter.
1:33:19 PM
REPRESENTATIVE MCCABE mentioned that HB 95 had previously been
heard in the House Special Committee on Fisheries where an
amendment was offered to give authority to both DEC and the
legislature. Opposing the amendment, he expressed the belief
that this would politicize the process. He requested DEC's
position on the designations and asked whether this should be
the responsibility of the legislature.
1:34:46 PM
MR. BATES expressed agreement with Representative McCabe. He
explained DEC's position, which is this is a land use
designation, which exceeds the authority of DEC because state
appropriations should exist in the legislature. Referring to
the previous hearing, he said that there had been suggestions to
include DEC in addition to the legislature. He described the
challenges and how this would counter DEC's policies for
consistency and predictability. He expressed the opinion that
this could also politicize the process by creating a system
where advocates for Tier III water bodies could go to the
department's commissioner or director if they could not get a
bill through the legislature. He argued that, if it is in the
hands of a commissioner or a director, it may violate the
separation of powers. In addition, this would more likely be
subject to judicial review, leaving the courts with the final
Tier III designation. This could potentially leave out the
perspective of the legislature, the client, or the department.
1:36:26 PM
REPRESENTATIVE MCCABE speculated that if the bill were to
include DEC as an alternate path to these designations, the
legislature and DEC may be at odds. If this is the case, it
would become necessary to bring in the judicial branch. He
reiterated his belief that the process belongs with the
legislature, and the process needs to be in place so these old
applications can be addressed.
1:37:05 PM
CHAIR MCKAY asked for the explanation concerning water bodies
which cross jurisdictions, such as Native, federal, and state
boundaries. He questioned whether the river would maintain its
Tier III status if, for example, it crossed from state to
federal lands.
1:37:52 PM
MR. BATES responded that there are questions concerning
ownership of bodies of water. He surmised that the state
clearly asserts that rivers and navigable waters are under the
state's authority and purview; therefore, this would be a legal
issue. He explained that if a portion or entirety of a water
body is designated as Tier III, it is going to be managed
according to the federal and the state rules as a Tier III water
body. He explained that if there is a state or federal
wastewater discharge permit or water quality permit, these
permits would be implicated in the Tier III water body. He
continued that proposed activities in or close to a Tier III
water body would not be allowed to change, degrade, or lower the
quality of water, regardless of land ownership.
1:39:54 PM
CHAIR MCKAY, using the Yakutat Forelands as an example, he
suggested that most Alaska legislators have not been there, so
the legislators from this district would need to provide the
thorough justification for the Tier III designation. He
questioned whether this is part of the rationale behind the
bill.
MR. BATES expressed agreement with Chair McKay. He said that
the Tier III designation needs information, relying on good
science and compelling arguments, regarding why the body of
water is special. He reminded the committee that they were
talking about water bodies which are the "best of the best." He
added that, nationally, Alaska's Tier II waters and the
protections offered are second to none, as Alaska has a very
comprehensive and rigorous regulatory program which includes all
DEC sister agencies in the management of Tier II waters.
1:41:53 PM
REPRESENTATIVE DIBERT, concerning the Chandler River Tier III
nomination, pointed out the 50-page report from the nominees.
She questioned whether legislators could ask DEC or other
agencies to help understand the science in the reports.
CHAIR MCKAY responded that most of the legislators are not wild
land or river experts, so expert background is important for
learning about these water bodies. He questioned whether a Tier
III designation could be taken away by future legislation. He
offered a scenario in which the Chandlar River is designated a
Tier III waterway, then what if the largest deposit of lithium
ever found was on the banks of this river. He questioned what
would happen then.
MR. BATES stated that the Chandlar River was nominated by the
Venetie Village Council in 2016 and responded that when a Tier
III designation goes into effect, DEC would need to know the
specifics to manage it appropriately. If it is geothermal water
or has exceptional clarity, appropriate management would have
different costs. He referred to a letter concerning costs
written in April 2022, when this was being considered by the
legislature. Addressing the issue of de-designating an area, he
explained that currently the Environmental Protection Agency
(EPA) has confirmed there is no rule prohibiting such an action.
1:47:27 PM
REPRESENTATIVE DIBERT questioned the number of other states
which use their legislatures to designate waters.
MR. BATES, responding, expressed uncertainty. He added that he
would follow up with this information to the committee.
REPRESENTATIVE RAUSCHER went into detail about why he sponsored
the proposed legislation. He reminded the committee that it
deals with very complex matters, such as fiscal situations, gas
and oil leases and taxes, and future fiscal policy. He argued
that waterway issues are not beyond the capabilities of the
legislators. He explained the process he would use if a
proponent for a Tier III waterway approached him with a
nomination. He said he would take time during the interim,
reading and studying the documentation to better understand the
reasoning and science. He would communicate this with other
legislators. The issue may seem daunting; however, he expressed
the opinion that the legislature has worked on many important
things, and if the legislature is tasked with an issue, there
will be due diligence. He argued that the five nominations have
not been dealt with for many years, and he expressed the desire
to see this changed.
1:51:37 PM
REPRESENTATIVE MEARS expressed her concerns about the
legislature's ability to deal with such matters without a formal
background. She stated that the standards, science, and
timelines were not conducive to the legislative process, and
there should be a recommendation process by experts. She
pointed to the financial burden on the applicants who gather the
information. She expressed concern that the process would be
deliberate.
1:54:38 PM
MR. BATES voiced DEC's objective to avoid court involvement with
Tier III designations. He expressed the opinion that DEC's
involvement should be part of the process which has the least
potential for ending up in a courtroom. He expressed the
opinion that if one of these designations is challenged in
court, not only will it delay the designation for years, but it
will also put the decision in the hands of the court which does
not have the background to make such decisions.
1:56:23 PM
CHAIR MCKAY announced that HB 95 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| AGDC 3.29.23 HRes Presentation.pdf |
HRES 3/29/2023 1:00:00 PM |
|
| HB 95 - Sectional Analysis.pdf |
HFSH 3/23/2023 10:00:00 AM HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 - Sponsor Statement.pdf |
HFSH 3/23/2023 10:00:00 AM HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 Supporting Document Presentation .pdf |
HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 125 Public Testimony (through 3.28.23).pdf |
HRES 3/29/2023 1:00:00 PM |
HB 125 |
| Alaska-LNG_ESG-2023.pdf |
HRES 3/29/2023 1:00:00 PM |
|
| HB 95 Draanjik River ONRW Nomination.pdf |
HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 Chilkat ONRW.pdf |
HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 Chandlar River Tier 3 nomination.pdf |
HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 Yakutat Forelands_Nomination.pdf |
HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 Koktuli ONRW Nomination.pdf |
HRES 3/29/2023 1:00:00 PM |
HB 95 |