Legislature(2011 - 2012)BUTROVICH 205

02/21/2012 03:30 PM Senate RESOURCES


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Audio Topic
03:35:26 PM Start
03:36:30 PM SB192
03:37:00 PM Analysis of Royalty Modification (focus on Economic Analysis) Presentation by Department of Natural Resources
04:51:43 PM SB176
04:57:27 PM HB144
05:10:49 PM HB185
05:29:58 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 192 OIL AND GAS PRODUCTION TAX RATES TELECONFERENCED
Heard & Held
Analysis of Royalty Modification (Focus on
Economic Analysis)
Presentation by Department of Natural Resources
<Invited Testimony Only on DNR Presentation>
+= HB 144 REPORT ON FISHING STREAM ACCESS TELECONFERENCED
Moved CSHB 144(RES) Out of Committee
+= HB 185 EXEMPT DISCHARGES FROM USE OF MUNITIONS TELECONFERENCED
Heard & Held
<Public Testimony on HB 144 and HB 185>
Bills Previously Heard/Scheduled
= SB 176 EXEMPTIONS FROM MINING TAX
Moved CSSB 176(RES) Out of Committee
         HB 185-EXEMPT DISCHARGES FROM USE OF MUNITIONS                                                                     
                                                                                                                                
5:10:49 PM                                                                                                                    
CO-CHAIR WAGONER announced HB 185 to be up for consideration.                                                                   
                                                                                                                                
CO-CHAIR  PASKVAN  moved  to bring  CSHB  185(RES),  27-LS0506\X,                                                               
before this committee for purposes of discussion.                                                                               
                                                                                                                                
CO-CHAIR  WAGONER objected  for discussion  purposes. He  invited                                                               
the sponsor to present the bill.                                                                                                
                                                                                                                                
5:11:43 PM                                                                                                                    
REPRESENTATIVE TAMMIE  WILSON, sponsor of HB  185, explained that                                                               
in 2008  the state sought  Environmental Protection  Agency (EPA)                                                               
approval of  its Clean Water  Act program. Title 46  now excludes                                                               
the  firing or  other  use of  munitions  in training  activities                                                               
conducted on  active ranges including: active  ranges operated by                                                               
the U.S.  Department of  Defense or a  military agency  unless it                                                               
results in a discharge into waters of the United States.                                                                        
                                                                                                                                
She said  that HB 185  was vetted by  the EPA, the  Department of                                                               
Environmental  Conservation  (DEC),  the  Department  of  Defense                                                               
(DOD), and  the state Department  of Military &  Veterans Affairs                                                               
(DMVA).  It  clarifies section  (e)(7)  such  that it  cannot  be                                                               
misinterpreted  to restrict  military exercises  on ranges  other                                                               
than instances where the federal  Clean Water Act would apply. It                                                               
reduces the  chance of litigation  in trying to  interpret waters                                                               
within the U.S.                                                                                                                 
                                                                                                                                
5:12:55 PM                                                                                                                    
KEVIN WARD,  counsel, U.S. Army, Northern  Regional Environmental                                                               
Office,  Denver,  said  he was  representing  the  Department  of                                                               
Defense  Regional  Environmental  Coordinator  and  the  military                                                               
services  in Alaska,  and that  they  all supported  HB 185.  The                                                               
committee had  a couple of questions  at the last hearing  and he                                                               
reiterated his answer that HB  185 adds clarity to current Alaska                                                               
Clean Water  Act statute  so that application  of it  to military                                                               
ranges will  be determined in  accordance with the  federal Clean                                                               
Water Act. Secondly,  he said this bill has  absolutely no effect                                                               
on  Alaska's primacy  of the  Clean Water  Act program,  which it                                                               
received from the  EPA. This amendment has  been coordinated with                                                               
the EPA and it has no objection to it.                                                                                          
                                                                                                                                
CO-CHAIR PASKVAN said  he was trying to figure out  why they were                                                               
going through this  process and asked what  differences there are                                                               
between  the  federal  and state  standards  for  discharge  into                                                               
waterways.                                                                                                                      
                                                                                                                                
MR. WARD replied that this  bill changes language in the existing                                                               
Alaska  statute that  reads: "Unless  it results  in a  discharge                                                               
into  waters  of  the  United   States."  to:  "Unless  otherwise                                                               
regulated by the federal Water  Pollution Control Act." This will                                                               
not result  in any different  standards, effluent  limitations or                                                               
water quality criteria between the  military and any other member                                                               
of the regulated  community. The real purpose for  this change is                                                               
at the  phrase "waters  of the  United States,"  which is  a term                                                               
that has been much debated and  disputed not only in Congress but                                                               
within EPA,  the Corps  of Engineers and  the courts.  The courts                                                               
decisions,  despite  their many  efforts,  have  not resulted  in                                                               
great clarity  as to what the  meaning of that phrase  is and its                                                               
meaning  may   change  over  time.   So  rather  than   have  the                                                               
application  of the  state Clean  Water  Act be  determined by  a                                                               
phrase that  is ambiguous  and may be  further be  interpreted in                                                               
different  ways by  the courts,  he simply  felt that  they would                                                               
have  more clarity  and  confidence in  what  situations need  to                                                               
comply with  the state  act if  it simply  refers to  the generic                                                               
federal act.                                                                                                                    
                                                                                                                                
CO-CHAIR  PASKVAN said  he was  trying to  understand how  Alaska                                                               
would  retain its  primacy position  as permitting  agency if  it                                                               
defers to federal standards (as compared to state standards).                                                                   
                                                                                                                                
MR. WARD replied that this amendment  will not have any effect on                                                               
Alaska's  primacy.  Alaska received  primacy  from  the U.S.  EPA                                                               
forward state program about two  years ago. EPA has reviewed this                                                               
proposed  amendment and  does not  object to  it. So  Alaska will                                                               
remain  the  permitting agency.  The  way  the requirements  will                                                               
apply to the military ranges will  be if and when the federal act                                                               
would apply, so there will  be consistency between the Alaska act                                                               
and  the  federal  act.  The  reason that  is  important  to  the                                                               
Department  of Defense  is  so that  it will  not  be faced  with                                                               
different  requirements when  they  do or  don't  have to  obtain                                                               
permits for their ranges in  different jurisdictions in different                                                               
states. But if a permit is  required, it would be a state permit.                                                               
The state departments will also  take over the schedule component                                                               
for  looking at  military  ranges and  determining which  permits                                                               
will be required in about October 2012.                                                                                         
                                                                                                                                
CO-CHAIR PASKVAN said  he understood what he was  saying in terms                                                               
of primacy  in the  sense that  the State  of Alaska  retains its                                                               
position  as  the  permitting authority,  but  he  perceived  the                                                               
substantive issue beyond who processes  the paperwork was that it                                                               
removes  substantive Alaskan  standards  and defers  them to  the                                                               
substantive standards  of the federal  government. And  the river                                                               
ways and  the federal government has  been a hot topic  in Alaska                                                               
over the last year.                                                                                                             
                                                                                                                                
5:21:42 PM                                                                                                                    
MR. WARD responded with an example  of how this might apply. If a                                                               
citizen group wanted  to assert that a military  range required a                                                               
Clean  Water Act  permit pursuant  to the  state act,  they might                                                               
assert that there is a discharge  to waters of the United States.                                                               
Since it is an ambiguous  term and is interpreted different ways,                                                               
an Alaska  court might say yes,  this is a "waters  of the United                                                               
States" under Alaska  statute even though it might  not be waters                                                               
of the United States under the federal act.                                                                                     
                                                                                                                                
5:22:03 PM                                                                                                                    
SETH   BOSANG,  Assistant   Attorney  General,   Civil  Division,                                                               
Environmental  Section  representing  the  Alaska  Department  of                                                               
Environmental  Conservation  (DEC),  said   he  agreed  with  the                                                               
testimony so far that this bill  really is intended to make state                                                               
and federal law  consistent. As it stands right now,  there is at                                                               
least  a  potential that  state  law  on  this subject  would  be                                                               
broader than federal  law and the intention is to  make state and                                                               
federal law consistent.                                                                                                         
                                                                                                                                
CO-CHAIR PASKVAN said this where  he was trying to understand the                                                               
difference  between  the  Alaska  law on  this  subject  and  the                                                               
federal law that Alaska  is ceding to it. Why does  it need to be                                                               
done?                                                                                                                           
                                                                                                                                
5:23:21 PM                                                                                                                    
MR.  BOSANG responded  that  this would  not  affect the  state's                                                               
primacy  and  the  state  would continue  to  be  the  permitting                                                               
agency.  The only  thing  it would  affect is  whether  or not  a                                                               
permit is required and it  removes some potential ambiguity where                                                               
a court  could construe the  terms "waters of the  United States"                                                               
in a  way that people  may not  have intended or  anticipated. So                                                               
the substantive standard that would apply would remain the same.                                                                
                                                                                                                                
SENATOR  WIELECHOWSKI  said  that   last  year,  they  asked  the                                                               
legislative drafting  attorney, Alpheus Bullard, about  it and he                                                               
said the definition of "waters of  the U.S." is actually found in                                                               
Alaska regulations  at 18 AAC  83.990(77). Did Mr.  Bosang agree?                                                               
Mr. Bullard was  also asked to explain what the  bill does and he                                                               
said it wasn't clear to him.                                                                                                    
                                                                                                                                
MR. BOSANG said he didn't know the answer.                                                                                      
                                                                                                                                
MR. WARD  answered that he  believed that  was correct. If  it is                                                               
not in the state regulations,  there is certainly a definition in                                                               
the federal regulations.  The term has been  defined various ways                                                               
through policy  and court  decisions; but  a definition  that may                                                               
look simple  on its face  has over time  become not as  simple as                                                               
people would like.                                                                                                              
                                                                                                                                
CO-CHAIR  PASKVAN  asked  if  this  addresses  whether  a  permit                                                               
application even needs  to be presented. In other  words, if it's                                                               
under the federal  law and it's a discharge  into federal waters,                                                               
there is  a potential that  there would be no  permit application                                                               
necessary; but assuming that there  was one, the only involvement                                                               
that the  state has  is that  it would  be the  permitting agency                                                               
applying purely federal law.                                                                                                    
                                                                                                                                
5:27:16 PM                                                                                                                    
MR.  WARD  answered  that  he  had  accurately  stated  that  the                                                               
threshold issue  that this addresses  is whether or not  a permit                                                               
is required. Because  if a permit is not required  as a threshold                                                               
matter pursuant  to the  federal Clean Water  Act for  a military                                                               
range, then one  would not be required pursuant to  the state act                                                               
and that  is the consistence they  were looking for. If  a permit                                                               
is  required, then  it is  a  state permit  and state  standards,                                                               
procedures  and criteria  apply  to determine  the  terms of  the                                                               
permit.                                                                                                                         
                                                                                                                                
5:28:07 PM                                                                                                                    
KARLA HART, representing herself,  described herself as a private                                                               
citizen with  a passion for  clean water. She was  concerned that                                                               
this bill was  a bit of a sleeper that  because of its complexity                                                               
might bite  us at some  point when water is  polluted potentially                                                               
with  very  persistent  and dangerous  toxins,  leads  and  other                                                               
things that  could be  with us  for a  long time.  Alaska's clean                                                               
water is too  important to its economy and  allowing an exemption                                                               
to  military ranges  of our  clean water  standards seems  like a                                                               
degradation of the state's regulation over clean water overall.                                                                 
                                                                                                                                
CO-CHAIR WAGONER  closed public  [testimony] and  held HB  185 in                                                               
committee.                                                                                                                      

Document Name Date/Time Subjects
Nikaitchuq_Final_Finding_2008.pdf SRES 2/21/2012 3:30:00 PM
SB 192
Nikaitchuq_Final_Finding_2006.pdf SRES 2/21/2012 3:30:00 PM
SB 192
SRES_DNR-DOG_Royalty_Mod_slides_2_21_12.pdf SRES 2/21/2012 3:30:00 PM
SB 192