Legislature(2011 - 2012)BUTROVICH 205
03/05/2012 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB185 | |
| SB153 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 185 | TELECONFERENCED | |
| += | SB 153 | TELECONFERENCED | |
HB 185-EXEMPT DISCHARGES FROM USE OF MUNITIONS
3:36:46 PM
CO-CHAIR WAGONER announced HB 185 to be up for consideration
[CSHB 185(RES) was before the committee]. He said this bill was
heard twice by the committee and a motion was pending.
3:37:03 PM
SENATOR MCGUIRE joined the committee.
3:37:50 PM
REPRESENTATIVE TAMMIE WILSON, sponsor of HB 185, explained that
a problem was created when the Alaska Clean Water Act was
amended in 2008 to its current form. The state's long standing
comprehensive military munitions exemption, AS 46.03.100(e)(7),
says "unless it results in a discharge into waters of the United
States" and this language potentially allows for a more
expansive unintended application of Alaska's Clean Water Act
than the federal Clean Water Act (CWA) due to the many and
varying interpretations of "waters of the US."
The proposed amendment in HB 185: "unless otherwise regulated by
the federal Water Pollution Control Act" will maintain the
state's primacy and at the same time allow Alaska military
ranges to comply with state law by operating in accordance with
federal law. If not passed, the possibility exists that military
ranges would have to curtail operations because of unique
interpretations of Alaska law even if the ranges are in
compliance with federal law. A consequence of the potential
limited uses of the military ranges is that the U.S. Department
of Defense (USDOD) could decide to use this decision to downsize
Alaska's military presence. The bottom line is that HB 185
maintains Alaska's primacy, protects the environment and allows
military exercises to continue without potential legal issues.
REPRESENTATIVE T. WILSON said she took this bill on because
Eielson is one of the bases that could Alaska could potentially
lose.
3:40:11 PM
CO-CHAIR PASKVAN said last year one of his responses indicated
that the effects and purpose of the legislation weren't clear
and asked the drafting attorney what he thought.
3:40:47 PM
ALPHEUS BULLARD, Legislative Attorney, Legislative Affairs
Agency, Alaska State Legislature, replied that he thought the
sponsor had spoken to that. He didn't know if there was any
distinction in enforcement of "into the waters of the United
States" or what is regulated under the Clean Water Act. At this
moment there is no difference. If the state were to more
stringently define "waters of the United States" in the future,
there might be some deviation.
3:41:31 PM
CO-CHAIR PASKVAN asked if the issue of primacy is to establish
the Alaska Department of Environmental Conservation (ADEC) as
the procedural agency to handle permitting with the federal law
being the only substantive law applying.
MR. BULLARD answered that was his understanding.
SENATOR WIELECHOWSKI asked if the essence of this bill is
changing current law that says "firing or other use of munitions
in training activities is allowed unless it results in discharge
into waters of the United States" to "waters regulated under 33
USC 12.51.13.76."
MR. BULLARD answered yes. One other change includes the word
"service", but it doesn't expand the language.
SENATOR WIELECHOWSKI asked if passing this law means Alaska is
turning over its sovereignty and allowing the federal government
to decide what the definition is.
MR. BULLARD replied that wasn't entirely fair to say. He didn't
think the state has that much to say about federal waters
whether it's US waters or the Clean Water Act.
SENATOR WIELECHOWSKI recapped that they are saying there is a
law on the books against shooting munitions if it results in
discharge into the waters of the United States and that is being
changed to give control over what happens on a military base
regarding munitions to the federal government. In other words,
the federal government could change the law in a way that maybe
we wouldn't like and by passing this, Alaska is losing its
authority in that regard.
3:45:10 PM
MR. BULLARD replied that some latitude is lost, but he didn't
know how much. The language "waters of the United States" was
originally selected when this section was drafted to comply with
the Clean Water Act and the sponsor was seeking to keep this
section consistent with the Clean Water Act.
CO-CHAIR PASKVAN said getting to the point, assume that the
federal government standard stays the same and Alaska eventually
wants to have a say in what is discharged into its waters. Does
this bill authorize that?
MR. BULLARD replied it's possible in the future, that the state
might more strictly construe "waters of the United States" than
the federal Pollution Control Act does, but whatever happens in
federal waters will eventually be under the say of the federal
government, so he didn't know how much sovereignty would be
lost.
CO-CHAIR PASKVAN said there was a "big dust up" in Interior
Alaska last year on the issue of what waters are state and what
waters are federal. Ultimately the question is: can Alaska have
a substantive say if this law would say that the federal law is
the only substantive law that would be considered under any
permitting process? If the federal law is the only substantive
law, that seems to eliminate Alaska's voice if we had a specific
concern as to discharges into the waters in Alaska.
MR. BULLARD recognized his concern as legitimate, but without
understanding what the future changes might be it was hard for
him to comment.
3:48:33 PM
CO-CHAIR WAGONER said not passing this law could jeopardize at
least two bases in the State of Alaska due to the lack of their
inability to operate on their firing ranges. Is that the essence
of this bill and is the federal government trying to help us out
with that?
MR. BULLARD replied that those were policy considerations and he
didn't know what the considerations of the military or the
federal government are. Without the state's own definition of
"waters of the United States," they lack certainty. Having a
specific law cited would provide certainty as to how this is
going to be enforced.
CO-CHAIR WAGONER said he wanted to hear from the military side
of this issue.
3:49:29 PM
MCHUGH PIERRE, Deputy Commissioner, Department of Military &
Veterans Affairs (DMVA), said the fact is that everyone is at
risk right now. Alaska, as a state, is already competing with
other states to make sure we are in an environment in which it
is the easiest to do business. That means putting provisions
into law that make sure Alaska is the best place to do business
for the military.
He said this is one of those areas the military said could be a
hindrance and offered to help clean it up so it still mirrors
what the state wants to do and what the federal government needs
under the Clean Water Act. In summary, he said, if there is any
question about what can and cannot be done in the future,
instead of operating in a grey area, USDOD will operate where it
knows it can take care of business.
CO-CHAIR PASKVAN asked if other states' departments of
environmental conservation maintain more than just a procedural
role. In other words do other states have their substantive
state law operate with the substantive federal law.
MR. PIERRE replied that he couldn't speak to other states'
environmental conservation departments, but every other state
has this exemption very clearly defined for military firing
ranges. Alaska is the only state that does not; and we did have
it defined until we accidentally changed it and didn't
incorporate this into it.
CO-CHAIR PASKVAN mused maybe it's ADEC, because they were going
to take over primacy last fall, and then they haven't.
3:52:05 PM
SETH BEAUSANG, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law (DOL), representing the
Department of Environmental Conservation (DEC), Anchorage, AK,
said DEC assuming primacy over these kinds of permits is a
multi-stage process and they hadn't gone through all the stages,
but they are in the process.
CO-CHAIR PASKVAN asked if he knew whether other states maintain
a say in their substantive laws to their state's Clean Water Act
in similar situations.
MR. BEAUSANG answered that he didn't know, but he would research
it.
CO-CHAIR PASKVAN asked how many states have sought primacy under
these circumstances where the state DEC is applying substantive
federal law.
MR. BEAUSANG said he didn't know that either, but he would
research it and provide an answer.
3:53:58 PM
KEVIN WARD, Regional Counsel, Regional Environmental Office, US
Army, Denver, CO, said was he was speaking on behalf of the US
Department of Defense Regional Environmental Coordinator. He
believed that approximately 45 states have primacy for their CWA
programs and in part they rely upon the substantive requirements
of the federal CWA in establishing their state law requirements.
In the Alaska situation, he said, even with the proposed
changed, the state and its DEC would be in a position not just
to implement procedural requirements, but also to implement
state substantive requirements as it would pertain to
classifying state waters. For example, what types of discharges
would be allowed to waters in the state, pollutants, discharge
limitations, et cetera. This amendment exclusively addresses the
issue of what waters would be covered. To answer that question,
there would be reference to the federal CWA. Otherwise, the
state procedural and substantive requirements would apply.
SENATOR WIELECHOWSKI said he had a note saying this bill doesn't
change anything and that there may be a change in the future by
the federal government and asked if it is fair to say that
nothing changes if they pass this bill today.
3:57:12 PM
MR. WARD answered that the ADEC program is being implemented
through a number of stages. The stage that would apply to
military munitions and ranges according to the current schedule
will not be implemented until October 2012. So, if something is
not enacted today and since USEPA remains the authority, nothing
would change. But after October 2012, it is possible that this
would have an effect depending on how "discharge waters into the
US" is interpreted. If it is interpreted in a way that is unique
to Alaska as opposed to the requirements of the federal CWA,
that could have a negative effect on military operations.
CO-CHAIR WAGONER said the economy in his district was not
dependent upon the military and asked how much a situation like
this would weigh in deciding whether to keep a base open, move
it or close it down.
MR. WARD replied that he was not privy to base closure
discussions in the DOD, but after the last round of base
closures in 2005 a number of criteria were used to evaluate
bases and installations throughout the US. One was military
value: factors included an installation's ability to absorb
current and future munitions requirements, whether the condition
and availability of land facilities and air space including
training areas were suitable for training and staging and
whether the military installation had the ability to accommodate
unforeseen contingencies et cetera.
4:00:48 PM
SENATOR WIELECHOWSKI said he was trying to balance the state law
on the books right now that controls firing of munitions into
the waters of the US - his district backs up to a military base
and there have been firings of munitions into waters and land
that have had environmental impacts - and his concern about
turning the state's right to control where munitions are fired
over to the federal government that could say it's okay to do
that.
CO-CHAIR PASKVAN said he understood the intent and he heard that
this law would only be necessary if ADEC were to interpret the
law differently than it currently interprets it. But if that
doesn't happen in October 2012, then this law isn't needed.
4:03:24 PM
REPRESENTATIVE T. WILSON said that laws are good only until they
get sued and that is the purpose of this measure. Do we want to
wait until October? In March, they will be looking at Eielson
and all the relevant legislation and the question is if this
will be one of the black marks that goes on the evaluation. She
thought they should act now and added that she wouldn't put this
forward if she thought it jeopardized anything with the CWA or
pollution, because the State of Alaska is good at taking care of
its land.
4:05:04 PM
CO-CHAIR WAGONER asked if one of the reasons the Striker Brigade
was moved to Alaska was because of the ability to train better
than in other areas in the US.
MR. PIERRE answered yes; Alaska has two brigade combat teams
now, 3,500 to 4,000 troops between Fort Wainwright and Joint
Base Elmendorf-Richardson (JBER); with their families that's
7,000 to 8,000 people. The USDOD just announced at a defense
community conference last week that the Army is going to cut two
of the eight brigade combat teams; two of those eight are in
Alaska. The primary reason Alaska is a good place for the Army
to be is because it has the open access to training. Senator
Wielechowski's district has a large section for training on the
Mountainside: but the Joint Pacific Alaska Range Complex is in
the Interior near Senator Paskvan's district and the legislature
just invested close to $80 million to build a bridge for Striker
vehicles to access it.
CO-CHAIR PASKVAN said he understood that the USEPA supports this
measure, but he wanted the ADEC to explicitly respond to the
question of if they are willing to give up Alaska's future
involvement in clean water.
MR. PIERRE replied that it wouldn't be proposed here if they
weren't.
CO-CHAIR PASKVAN said he wanted to hear that explicitly from the
administration that they are willing to give up that right.
4:08:05 PM
MR. BEAUSANG said because he was primarily present to answer
legal questions he hesitated to answer the question directly,
but he noted a letter submitted to the committee in the last
session making it clear that DEC supports this change. The
general reason is that is an effort to promote consistency
between state and federal requirements.
It's also not accurate to say that ADEC is giving up its role in
CWA permitting even for munitions discharges. They will have a
role to the extent that permits are required: the department
would issue body and state standards that would apply. The only
thing this act is trying to do is to make it consistent between
state and federal law when those permits would be required.
SENATOR MCGUIRE said she supports the bill and added that it's
easy to let yourself go down rabbit trails. Evidence shows that
every other state has it and Alaska had it up until 2008 and she
wasn't aware of any catastrophic incidents. Keeping the balance
between state and federal government primacy is always
difficult, but she didn't want to do anything at this stage that
would render Alaska less competitive when Base Realignment and
Closure Commission (BRAC) closures are being discussed. Defense
spending has gone way down and it's not a given that Alaska gets
the support it has had in past years for its bases.
4:11:36 PM
SENATOR WIELECHOWSKI said his concern was that under current
law, a provision says you can't fire munitions if it results in
a discharge into the waters of the US. We would be saying you
can't fire munitions in a training area unless it's otherwise
regulated under the federal Water Pollution Control Act (WPCA).
Passing this would be changing state law where the state
directly controls what it is allowing and disallowing and giving
it to the federal government. Is that a correct understanding?
MR. BULLARD responded that current law has an exemption for
munitions fired from active ranges that go into the waters of
the US. Under HB 185, the state would have an exemption for
munitions unless the munitions that went into the waters of the
US were otherwise regulated by the federal WPCA, which is the
current interpretation under "waters of the United States." It's
possible in the future that "waters of the United States" could
be defined differently so that those two were not aligned.
CO-CHAIR WAGONER asked with passage of this bill if they would
remain aligned.
MR. BULLARD answered yes.
SENATOR MCGUIRE moved to report CSHB 185(RES) from committee
with individual recommendations and attached fiscal note(s).
There were no objections and CSHB 185(RES) moved from the Senate
Resources Standing Committee.
SENATOR WIELECHOWSKI said he contemplated objecting, but he
thought he understood the bill a little better with the
explanations.
| Document Name | Date/Time | Subjects |
|---|