Legislature(2019 - 2020)BUTROVICH 205

03/27/2019 03:30 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 51 NATL. RES. WATER NOMINATION/DESIGNATION TELECONFERENCED
Heard & Held
*+ SB 42 QUITCLAIM LAND TO UNITED STATES TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 51-NATL. RES. WATER NOMINATION/DESIGNATION                                                                      
                                                                                                                                
3:31:16 PM                                                                                                                    
CHAIR BIRCH  announced the  consideration of  Senate Bill  51 (SB                                                               
51). He said  his intent is to adopt a  committee substitute (CS)                                                               
and report the bill on to the next committee of referral.                                                                       
                                                                                                                                
3:31:51 PM                                                                                                                    
SENATOR  COGHILL  moved to  adopt  the  proposed  CS for  SB  51,                                                               
labeled 31-LS0375\R, as the working document of the committee.                                                                  
                                                                                                                                
SENATOR GIESSEL objected for discussion purposes.                                                                               
                                                                                                                                
3:32:14 PM                                                                                                                    
TREVOR FULTON,  Staff, Senator  Birch, Alaska  State Legislature,                                                               
Juneau,  Alaska, explained  that  there are  two  changes in  the                                                               
Version  R CS  for SB  51. He  said the  first change  is cleanup                                                               
recommended  by Legislative  Legal. On  page 1,  line 11,  delete                                                               
"and this section," which was a  vestige from a previous draft of                                                               
the bill.                                                                                                                       
                                                                                                                                
He explained that the second,  more substantive, change begins on                                                               
page 1, line  12, and encompasses the entire  subsection (b). The                                                               
change was  in response  to concern that  the old  subsection (b)                                                               
may have  diluted the sponsor's  intent that the  legislature has                                                               
the  final decision  as to  whether to  designate an  outstanding                                                               
national  resource water.  The old  subsection  (b) required  the                                                               
Alaska  Department of  Environmental  Conservation (DEC),  Alaska                                                               
Department of Natural Resources  (DNR), and the Alaska Department                                                               
of  Fish and  Game (ADFG)  to unanimously  agree on  a nomination                                                               
prior to  forwarding it to  the legislature; however,  a decision                                                               
by  the  departments  not  to   forward  a  nomination  could  be                                                               
construed as precluding  a decision by the  legislature which was                                                               
not the intent of the bill.  The new subsection (b) requires that                                                               
all nominations  be forwarded, not just  those recommendations by                                                               
the  departments, in  an annual  report to  the legislature.  The                                                               
annual  report does  not constitute  an appealable,  final agency                                                               
decision.                                                                                                                       
                                                                                                                                
3:32:36 PM                                                                                                                    
SENATOR BISHOP joined the committee meeting.                                                                                    
                                                                                                                                
MR. FULTON  summarized that the intent  of the CS is  to maintain                                                               
the  benefit of  having  the three  resource  departments lend  a                                                               
minimum level  of scientific review and  subject matter expertise                                                               
to  Tier   3  water  nominations  while   reinforcing  the  final                                                               
authority  for  Tier 3  designation  lies  in  the hands  of  the                                                               
legislature.                                                                                                                    
                                                                                                                                
CHAIR  BIRCH   asked  Senator  Giessel   if  she   maintains  her                                                               
objection.                                                                                                                      
                                                                                                                                
3:34:14 PM                                                                                                                    
SENATOR GIESSEL removed her objection.                                                                                          
                                                                                                                                
CHAIR BIRCH  announced that that  the Version R  CS for SB  51 is                                                               
adopted.                                                                                                                        
                                                                                                                                
SENATOR  GIESSEL  said she  had  requested  that the  Legislative                                                               
Legal bill drafter and the  Department of Law be available during                                                               
the committee meeting.  She explained that she has  four areas of                                                               
questions.                                                                                                                      
                                                                                                                                
She asked Emily Nauman with Legal  Services to address the CS for                                                               
SB 51. She said the CS  does not reference the legislature as the                                                               
body that would make the determination.  The CS only says on page                                                               
1, line  11, "only  by law."  She said  her understanding  of "by                                                               
law" would  mean a bill passed  by the legislature and  signed by                                                               
the governor  or it  could mean "by  initiative." She  added that                                                               
her   understanding   is   the  Alaska   Constitution   disallows                                                               
initiatives  that appropriate.  She said  she believes  SB 51  is                                                               
appropriating  a   resource  of  the   state.  She  asked   if  a                                                               
designation  of  water  constitutes   an  appropriation  per  the                                                               
constitution  and therefore  would be  ineligible to  be made  by                                                               
initiative.                                                                                                                     
                                                                                                                                
3:36:03 PM                                                                                                                    
EMILY NAUMAN,  Legislative Counsel,  Legal Services,  Division of                                                               
Legal and  Research Services, Legislative Affairs  Agency, Alaska                                                               
State Legislature, Juneau, Alaska,  answered that Senator Giessel                                                               
is  correct;  by law  the  designation  encompasses both  an  act                                                               
passed  by  the  legislature,  signed  by  the  governor  and  an                                                               
initiative.  She  said  she  will  follow  up,  but  her  initial                                                               
reaction  is  the  bill  is  not  an  appropriation  because  the                                                               
legislature  is not  giving  the  land to  someone  or making  an                                                               
allocation of  an asset.  The legislature  is just  submitting to                                                               
more stringent water quality standards.                                                                                         
                                                                                                                                
SENATOR  GIESSEL  countered that  the  designation  of the  water                                                               
changes the  ability of the land  that is adjacent to  that water                                                               
body to  be utilized in  certain ways, thereby  appropriating the                                                               
land.                                                                                                                           
                                                                                                                                
MS.  NAUMAN  replied  that  she  does not  see  the  bill  as  an                                                               
appropriation but will look further into the issue.                                                                             
                                                                                                                                
SENATOR GIESSEL asked  to hear from the Department of  Law on the                                                               
subject.                                                                                                                        
                                                                                                                                
3:38:01 PM                                                                                                                    
JENNIFER  CURRIE, Assistant  Attorney General,  Alaska Department                                                               
of Law, Juneau, Alaska, said she  will have to do some additional                                                               
research to make a determination because she is not sure.                                                                       
                                                                                                                                
SENATOR GIESSEL emphasized  that the committee needs  to be aware                                                               
of the appropriation issue.                                                                                                     
                                                                                                                                
She asked Ms. Nauman to address on  line 11 in the bill, the word                                                               
"law"  within   the  phrase  "only   by  law".  She   noted  that                                                               
regulations have the  force of law and asked if  the phrase could                                                               
be   interpreted  to   mean  the   Department  of   Environmental                                                               
Conservation  (DEC)  could pass  regulations  that  would put  in                                                               
place a designation of Tier 3  waters and thereby have a force of                                                               
law.                                                                                                                            
                                                                                                                                
MS. NAUMAN  responded that  she would  have to  take a  moment to                                                               
process the question prior to answering.                                                                                        
                                                                                                                                
SENATOR COGHILL  suggested that the  committee look at  art. XII,                                                               
sec.  11 of  the  Alaska Constitution  because  an initiative  is                                                               
allowed. He  added that  there was  also a  court case  where the                                                               
intent was  to give land to  the university, but the  land was an                                                               
appropriation which barred the transaction.                                                                                     
                                                                                                                                
MS.  NAUMAN  answered  that  Senator   Giessel  is  correct  that                                                               
regulations commonly are  described as law and she  will get back                                                               
to the committee  on the effect of "only by  law" and whether the                                                               
section  could   be  interpreted   as  the   department  adopting                                                               
regulations.                                                                                                                    
                                                                                                                                
3:40:17 PM                                                                                                                    
SENATOR GIESSEL directed attention to  page 1, line 12 that says,                                                               
"The department may accept an  application for a nomination." She                                                               
said  the original  version of  SB 51  said the  department shall                                                               
accept  nominations,  whereas  the  CS  says  the  department  is                                                               
accepting  applications for  nominations.  She  asked Ms.  Nauman                                                               
what  the   difference  is  between   the  application   and  the                                                               
nomination because it sounds like another step.                                                                                 
                                                                                                                                
MS.  NAUMAN replied  that she  does not  see the  application for                                                               
nomination as  another step other than  to possibly differentiate                                                               
the fact  that there might need  to be some paperwork  filled out                                                               
or some minimum  requirement for a nomination  to become complete                                                               
and therefore that would become sort of an application.                                                                         
                                                                                                                                
SENATOR GIESSEL asked  if the department would  therefore have to                                                               
approve an application for a designation to become a nomination.                                                                
                                                                                                                                
MS. NAUMAN replied that inquiry is not specified in the bill.                                                                   
                                                                                                                                
SENATOR GIESSEL  remarked that there was  a gap. She said  the CS                                                               
requires  the  department  to make  a  recommendation  about  the                                                               
nominations.  Page 2,  line 3  says, "The  report must  provide a                                                               
recommendation regarding  whether each nominated water  should be                                                               
designated as outstanding national  resource water." She asked if                                                               
"no recommendation" is among the options for the department.                                                                    
                                                                                                                                
MS. NAUMAN  answered that  the bill states  that the  report must                                                               
provide  a recommendation  so the  department  could provide  "no                                                               
recommendation"  and not  be in  a substantial  violation of  the                                                               
section;  that  response  would  be  based  on  the  department's                                                               
interpretation  that  they  must  provide  a  recommendation  and                                                               
whether or not  no recommendation was actually some  sort of form                                                               
of not having an opinion either way.                                                                                            
                                                                                                                                
3:42:46 PM                                                                                                                    
SENATOR  GIESSEL   asked  what   the  legal  significance   of  a                                                               
recommendation  is and  if it  is appealable.  She inquired  what                                                               
would  happen if  the department  recommend" and  the legislature                                                               
takes an opposite action.                                                                                                       
                                                                                                                                
MS. NAUMAN answered that the  recommendation she envisions is the                                                               
department  provides  a  possible supported,  researched  opinion                                                               
about whether the  water qualifies for the Tier  3 designation or                                                               
whether it is  worthy of the Tier 3  designation. The legislature                                                               
is   free   to   disregard   a   recommendation   or   follow   a                                                               
recommendation.  The recommendation  by the  department does  not                                                               
bind the legislature  in any way. In fact,  the legislature could                                                               
consider any  body of water  for a Tier 3  designation regardless                                                               
of whether a recommendation was passed on from the department.                                                                  
                                                                                                                                
She said regarding the question  about whether the recommendation                                                               
is a  final decision, the  language on  page 2, lines  7-10 says,                                                               
"The preparation and  delivery of a report  under this subsection                                                               
does not  constitute a final  agency decision or action,  and the                                                               
recommendation  is not  subject  to appeal,  including appeal  or                                                               
review under AS 44.62  (Administrative Procedure Act)." attempted                                                               
to foreclose  that. It clarifies  that it  is not the  opinion of                                                               
the legislature that the recommendation  is the final action on a                                                               
decision  whether to  designate a  body of  water as  outstanding                                                               
national resource  water. That decision  is actually  being taken                                                               
up by the legislature.                                                                                                          
                                                                                                                                
3:44:22 PM                                                                                                                    
SENATOR  GIESSEL  read the  language  on  page  2, line  9,  "the                                                               
recommendation  is not  subject  to appeal,  including appeal  or                                                               
review under  AS 44.62 (Administrative Procedure  Act)." She said                                                               
the   question   is   what   is   the   legal   significance   of                                                               
"recommendation." She inquired  if someone can protest  or sue if                                                               
the legislature were to refuse to take  up the bill or to reach a                                                               
conclusion that was different than the report's recommendation.                                                                 
                                                                                                                                
MS.  NAUMAN replied  that people  sue  all of  time about  almost                                                               
everything, it's  why most of  the world's lawyers  are employed,                                                               
but to the extent that the  legislature takes up or does not take                                                               
up any  matter is a  matter of the legislature's  prerogative and                                                               
that argument  can be made  about any action of  the legislature.                                                               
The legislative powers are a  constitutional one that is inherent                                                               
in  the  body's  ability  to  pass  or  not  pass  any  piece  of                                                               
legislation.  She  opined that  she  does  not see  a  successful                                                               
lawsuit of someone  suing over the legislature's  decision on the                                                               
department's recommendation.                                                                                                    
                                                                                                                                
SENATOR GIESSEL  asked Ms. Currie  for her thoughts on  the legal                                                               
significance of a recommendation.                                                                                               
                                                                                                                                
MS.  CURRIE answered  that  she  agreed with  Ms.  Nauman that  a                                                               
recommendation  is  merely the  opinion  given  by the  different                                                               
resource agencies and that the legislature  is free to use or not                                                               
use the departmental recommendations to make its decision.                                                                      
                                                                                                                                
3:46:23 PM                                                                                                                    
SENATOR   GIESSEL  asked   Ms.   Currie  to   confirm  that   the                                                               
recommendation would not hold legal binding status.                                                                             
                                                                                                                                
MS. CURRIE answered no, especially  with the wording regarding it                                                               
not being  an appealable  decision. She  noted that  the original                                                               
legislation stated that  if the resource agencies  had a negative                                                               
recommendation that  it would  not go  any further;  however, the                                                               
goal was  to make  sure the legislature  makes that  decision and                                                               
not  the resource  agencies, so  that language  was taken  out so                                                               
that all recommendations have to  be forwarded to the legislative                                                               
body.                                                                                                                           
                                                                                                                                
SENATOR  GIESSEL  said  her  fourth  topic has  to  do  with  the                                                               
permanence of the  designation. A similar bill was  heard in 2016                                                               
and at  that time the  Senate Resources Committee  questioned DEC                                                               
as to the question of "permanence."  She said she inquired if the                                                               
declaration  of  Tier 3  waters  is  a permanent  designation  in                                                               
perpetuity.  She  noted  the committee's  letter  back  from  the                                                               
commissioner  stated that  he did  not think  the designation  is                                                               
permanent and yet at the same  time the EPA itself could not give                                                               
a clear answer  on the designation. She asked  if the legislature                                                               
could repeal the designation by  repealing the law and what would                                                               
the options be for the EPA in  the future if they were to contest                                                               
the state's  decision and  even go so  far as  repealing Alaska's                                                               
primacy over  waters. She inquired  if the Department of  Law has                                                               
experience  with the  EPA  regarding the  declaration  of Tier  3                                                               
waters and its permanency.                                                                                                      
                                                                                                                                
MS. CURRIE  replied that the  Department of  Law is aware  of two                                                               
states that currently have regulations that allow a de-                                                                         
designation of a  Tier 3 water; however, the  department does not                                                               
know  whether the  de-designation  has ever  been attempted.  She                                                               
said she does not think that  categorially the EPA has said there                                                               
is no process  for de-designation because they would  have had to                                                               
approve  those regulations.  She  deferred  to Andrew  Sayers-Fay                                                               
with DEC to talk about EPA's  role in de-designating if the state                                                               
were to designate a water.                                                                                                      
                                                                                                                                
3:49:50 PM                                                                                                                    
ANDREW   SAYERS-FAY,   Director,   Division  of   Water,   Alaska                                                               
Department   of  Environmental   Conservation,  Juneau,   Alaska,                                                               
explained that  since 2016, the  division has had  some follow-up                                                               
conversations with  the EPA about  the ability to  de-designate a                                                               
Tier 3  or an outstanding  national resource water body.  The EPA                                                               
conveyed that  they do  not see anything  that prohibits  a state                                                               
from  taking  the de-designation  action.  The  division has  not                                                               
gotten into the  nuances of how the  de-designation process would                                                               
work or what role  the EPA may or may not play  if the state took                                                               
a de-designation action.                                                                                                        
                                                                                                                                
SENATOR GIESSEL  asked Mr. Sayers-Fay  if the  communication with                                                               
the EPA is in writing.                                                                                                          
                                                                                                                                
MR.  SAYERS-FAY replied  that  there  is one  email  that he  has                                                               
received  from a  staff member  at EPA  Region 10  about the  de-                                                               
designation  topic.  He  explained  that  the  EPA  staff  member                                                               
referenced what other states have done.  He said he does not have                                                               
the  follow-up email  to verify  that the  division has  received                                                               
further information.                                                                                                            
                                                                                                                                
SENATOR GIESSEL said she appreciates  the fact that the committee                                                               
has an email  from a staffer at  DEC, but she is  not consoled by                                                               
the email.  She stated that  she would  be interested to  know if                                                               
DEC  could  get a  letter  from  the  head  person from  the  EPA                                                               
indicating whether the designation was in fact revocable.                                                                       
                                                                                                                                
3:51:35 PM                                                                                                                    
SENATOR BISHOP said he would have  more comfort with a law passed                                                               
by  Congress  that  addressed a  designation's  revocability.  He                                                               
remarked  that  he does  not  care  what  the EPA  director  says                                                               
because of the  changes a new administration can make  with a new                                                               
director and a new directive.                                                                                                   
                                                                                                                                
SENATOR GIESSEL  said she has  concern about the  cost associated                                                               
with the  bill. She assumed  that the three  resource departments                                                               
would have to  do some analysis before a  recommendation is made.                                                               
She inquired  if DEC has any  estimate on what an  analysis would                                                               
cost before the department would make a recommendation.                                                                         
                                                                                                                                
MR. SAYERS-FAY replied  that the bill, as  written, envisions the                                                               
departments' analysis is done for  the benefit of the legislature                                                               
to  make a  decision  about a  nomination and  so  the depth  and                                                               
direction of  what is  being asked for  by the  legislature would                                                               
determine the level of cost and  if there was an actual bill that                                                               
raised  Tier  3  issue,  the legislature  could  provide  further                                                               
direction  on what  issues  needed to  be looked  at  or to  what                                                               
degree.                                                                                                                         
                                                                                                                                
3:54:03 PM                                                                                                                    
SENATOR  GIESSEL asked  him  to  confirm that  DEC  would make  a                                                               
recommendation  not  knowing  the  degree  of  pristineness,  not                                                               
knowing what  kind of  work is  going on  upstream, what  kind of                                                               
uses of the water. She inquired  if the work she previously noted                                                               
would  have to  be  done  before DEC  makes  a recommendation  to                                                               
establish a Tier 3 water.                                                                                                       
                                                                                                                                
MR.  SAYERS-FAY replied  that  there  is more  than  one path  to                                                               
answer  the  recommendation process.  In  a  previous version  of                                                               
proposed   regulation,   DEC   enumerated  several   things   the                                                               
department  thought worthy  of consideration.  If SB  51 were  to                                                               
pass,  DEC would  look into  whether or  not there  is a  need to                                                               
establish  regulations again  and the  department would  probably                                                               
answer those types of questions  because those issues were raised                                                               
due to the  impact that Tier 3 designation has  for water quality                                                               
and then for any discharges to  that water body and the potential                                                               
to impact tributaries  flowing into that water body,  there are a                                                               
number of  questions that  would naturally  exist about  what are                                                               
the  uses  and   what  are  the  potential   impacts,  DEC  would                                                               
definitely start down that path.  He said he previously addressed                                                               
in  a previously  proposed  bill that  the  possibility that  the                                                               
legislature could  also provide  additional direction for  DEC to                                                               
look at specific issues.                                                                                                        
                                                                                                                                
MR. FULTON addressed Senator Giessel's  question on the sponsor's                                                               
intent  as  far   as  who  bears  the  cost   of  application  or                                                               
nomination. He  specified that the  sponsor's intent  in drafting                                                               
the bill  is that  the applicant  will bear most  of the  cost as                                                               
clearly reflected in  the department's zero fiscal  note. Most of                                                               
the  departmental   costs  would  probably  be   associated  with                                                               
collecting a  certain level of  water quality data  proving there                                                               
is stakeholder and  community support for the  Tier 3 nomination,                                                               
and then whatever else is needed to prove.                                                                                      
                                                                                                                                
3:57:05 PM                                                                                                                    
At ease.                                                                                                                        
                                                                                                                                
3:57:20 PM                                                                                                                    
CHAIR BIRCH called the committee back to order.                                                                                 
                                                                                                                                
MR.  FULTON continued  that the  departmental costs  will include                                                               
anything  else   required  to   prove  that   a  water   body  is                                                               
ecologically  and or  recreationally  significant,  which is  the                                                               
definition of a Tier 3 water  body by the EPA. He reiterated that                                                               
the costs  will be  borne by  the applicant  as reflected  in the                                                               
zero fiscal note presented by the department.                                                                                   
                                                                                                                                
SENATOR GIESSEL  remarked that  one of  the things  that Congress                                                               
has realized is the fact  that they abdicate their responsibility                                                               
when  they  write something  very  broadly  and then  expect  the                                                               
departments  to write  regulations. She  admitted that  often the                                                               
Alaska  Legislature  has also  written  regulations  that do  not                                                               
reflect  a bill's  intent by  not  being specific.  She said  her                                                               
concern is  leaving the decision  to a  departmental commissioner                                                               
or whoever happens to be the regulation writer at the time.                                                                     
                                                                                                                                
SENATOR KAWASAKI  noted that the  bill changed a lot  between the                                                               
Version K  and the version  R. He  pointed out that  the original                                                               
fiscal note  says, "The department  shall accept  nominations and                                                               
the   department   may   forward   those   nominations   to   the                                                               
legislature."  Version  R says,  "The  department  may accept  an                                                               
application, that  they shall prepare  a report." He  opined that                                                               
the two  versions are very  different, and the fiscal  note ought                                                               
to  reflect  the change.  He  asked  for  an explanation  of  the                                                               
change.                                                                                                                         
                                                                                                                                
3:59:55 PM                                                                                                                    
MR.  SAYERS-FAY  answered  that the  original  language  was  the                                                               
department shall  accept a nomination.  The only  significance in                                                               
the change  in language  is that if  there was  further direction                                                               
from  the legislature  or regulations  that  indicated a  minimum                                                               
amount of information that was  needed and that was not submitted                                                               
with the  nomination, that  that might provide  a basis  with the                                                               
new language  for the department  to not accept  that nomination;                                                               
but, absent  that the  language is fairly  similar in  its intent                                                               
for  the department  to  receive a  nomination,  reviews it,  and                                                               
provides a report.                                                                                                              
                                                                                                                                
MR.  FULTON  addressed  Senator  Kawasaki  and  said  as  to  the                                                               
question regarding "may"  versus "shall," he noted that  he had a                                                               
conversation  with the  legislature's  attorney  about the  exact                                                               
subject   regarding  when   the  department   "shall"  accept   a                                                               
nomination, that  "shall" leaves the  form of a nomination  to be                                                               
very  broadly  interpreted, but  "may"  gives  a department  some                                                               
level of discretion  as to whether or not the  package fulfills a                                                               
certain  criteria that  the sponsor  is looking  for in  a proper                                                               
nomination.                                                                                                                     
                                                                                                                                
SENATOR COGHILL asked if the first  thing that would be looked at                                                               
is the federal register on what the requirements of Tier 3.                                                                     
                                                                                                                                
MR.  FULTON deferred  the question  to the  department. He  noted                                                               
that the federal  register is vague in terms  of what constitutes                                                               
an outstanding  national resource  water and  his thought  is the                                                               
register  just   says  the  water  must   be  recreationally  and                                                               
ecologically significant.                                                                                                       
                                                                                                                                
4:02:40 PM                                                                                                                    
SENATOR  COGHILL  remarked that  looking  at  the register  first                                                               
might  make  a difference  to  the  legislature.  He noted  in  a                                                               
footnote under  are. XI, sec.  7 of the Alaska  constitution that                                                               
says, "If it  infringes on the legislature's  ability to allocate                                                               
resources among competing uses, then  it fails to ensure that the                                                               
legislature  and only  the legislature  retains control  over the                                                               
allocation."  He opined  that  there  is some  case  law that  is                                                               
beginning to show  that if the state restricts uses  there may be                                                               
a significant  issue between Alaska  and the  federal government.                                                               
He said  the legislature needs to  make sure that the  tension is                                                               
properly described.                                                                                                             
                                                                                                                                
CHAIR  BIRCH  noted  that  there was  testimony  earlier  in  the                                                               
regarding the fact  that DEC has adopted  water quality standards                                                               
that relate  to how  the proposed  legislation will  be executed.                                                               
The regulatory package speaks to  the Tier 3 analysis process for                                                               
the protection of water quality  and outstanding natural resource                                                               
water.                                                                                                                          
                                                                                                                                
SENATOR BISHOP  noted that Senator Kawasaki  addressed the fiscal                                                               
notes for the  Version K and the Version R.  He said common sense                                                               
dictates that  there is an  application process  where nomination                                                               
is set at a high bar that  is backed with science. He opined that                                                               
even though the  study is paid for by the  applicant, there needs                                                               
to be a number associated with the fiscal notes.                                                                                
                                                                                                                                
4:05:02 PM                                                                                                                    
SENATOR  KIEHL said  the  phrase that  reoccurs  in statute  when                                                               
talking about the quality of  an application is "shall accept" as                                                               
opposed  to "may  accept." He  asked why  the sponsor  settled on                                                               
"may accept" instead  of letting the department  say what quality                                                               
standards need to be met in the application.                                                                                    
                                                                                                                                
MR. FULTON  replied that  the discussion did  not go  beyond what                                                               
has already been explained.                                                                                                     
                                                                                                                                
SENATOR KIEHL  said he is still  not clear on what  standards the                                                               
department will use  to evaluate the recommendations.  He said he                                                               
appreciates   the   proposed  anti-degradation   regulation   but                                                               
continues to question what standards  the legislature will use to                                                               
tell  the  three   commissioners  to  apply  when   they  make  a                                                               
recommendation to the legislature for designation.                                                                              
                                                                                                                                
MR. FULTON  answered that  that the  regulation package  does not                                                               
describe those  standards and that  is something  the legislature                                                               
may not want to prescribe in  law because the department would be                                                               
fully capable of  doing so in regulation. He  explained that part                                                               
of  the  reason  why  the sponsor  wants  the  three  departments                                                               
involved in  the designation  process is for  a certain  level of                                                               
scientific  review  in  subject  matter expertise.  He  said  the                                                               
sponsor is  more comfortable deferring review  to the departments                                                               
for recommendation  only, not for  the final decision  which will                                                               
continue to be made by the legislature.                                                                                         
                                                                                                                                
4:08:01 PM                                                                                                                    
CHAIR BIRCH read the following:                                                                                                 
                                                                                                                                
     We  did not  receive  amendments  prior to  yesterday's                                                                    
     deadline, I would remind members  as per the discussion                                                                    
     any  amendments, sponsor  substitutes, blank  committee                                                                    
     substitutes,  handouts  or  other documents  you  list,                                                                    
     placed  before the  committee need  to be  delivered no                                                                    
     less  than  24 hours  prior  to  the scheduled  hearing                                                                    
     discussed in advance.                                                                                                      
                                                                                                                                
He said  he did not  see any additional amendments,  questions or                                                               
comments and asked if the committee is ready for a motion.                                                                      
                                                                                                                                
SENATOR  KAWASAKI asked  if the  committee  will have  discussion                                                               
time. He pointed  out that the previously  noted amendment policy                                                               
says amendments "should be submitted"  and questioned the limited                                                               
time for offering  amendments based on the  recent bill revision.                                                               
He said  he has lots of  concerns with the legislation  and noted                                                               
that  the Senate  Resources Committee  is the  substantive policy                                                               
committee versus  the Senate Finance Committee.  He remarked that                                                               
he  feels  uncomfortable  moving  the bill  without  having  more                                                               
discussions  on  some  of  the   concerns  addressed  during  the                                                               
hearing. He noted that he has an amendment packet for the bill.                                                                 
                                                                                                                                
4:10:35 PM                                                                                                                    
SENATOR  GIESSEL said  she had  questions for  the Department  of                                                               
Law, DEC,  and the  drafter. She noted  that questions  about the                                                               
cost to  apply the  regulations that have  been drafted  have not                                                               
been  answered. Also,  some attorneys  do not  think there  is an                                                               
allocation issue but earlier testimony  indicated this is similar                                                               
to designating parks,  which removes land from use.  She said she                                                               
understands that the goal of the  legislation is to put a process                                                               
in place  to satisfy the EPA.  She said she would  argue that the                                                               
EPA  is out  of line  in  commandeering the  state and  requiring                                                               
something, but that is another  issue. She said she believes that                                                               
a  much  simpler  version  of  the  bill  would  meet  the  EPA's                                                               
requirement that the state have a policy in place.                                                                              
                                                                                                                                
4:11:54 PM                                                                                                                    
SENATOR GIESSEL offered Conceptual Amendment 1 as follows:                                                                      
                                                                                                                                
     My  conceptual amendment  is simple,  it would  take on                                                                    
     page 1, line 11, it would  cross out the word "law" and                                                                    
     it would  substitute two words, "the  legislature." The                                                                    
     line   would    read,   "regulation,   only    by   the                                                                    
     legislature."                                                                                                              
                                                                                                                                
     Then,  my  conceptual  amendment would  go  forward  to                                                                    
     delete,  page 1  lines 12-13,  and page  2 lines  1-10,                                                                    
     leaving  in place  only subsection  (c), "Water  of the                                                                    
     state  may  not  be  managed  as  outstanding  national                                                                    
     resource waster  unless the  water has  been designated                                                                    
     as outstanding national resource way under (a) of this                                                                     
     section." and leaving in place section 2.                                                                                  
                                                                                                                                
     The conceptual amendment would  clearly define that the                                                                    
     process will  go through the  legislature, but  all the                                                                    
     other details,  we need  a more  substantive discussion                                                                    
     and more legal information.                                                                                                
                                                                                                                                
4:13:01 PM                                                                                                                    
At ease.                                                                                                                        
                                                                                                                                
4:13:30 PM                                                                                                                    
CHAIR BIRCH called the committee back to order.                                                                                 
                                                                                                                                
SENATOR COGHILL objected to Conceptual  Amendment 1. He explained                                                               
that the  amendment is  substantive and  should be  introduced in                                                               
writing for further  debate. He said he tended to  agree with the                                                               
amendment, but  the committee needs  the written version  as well                                                               
as giving other amendments a chance to come up for debate.                                                                      
                                                                                                                                
CHAIR BIRCH concurred with Senator Coghill.                                                                                     
                                                                                                                                
SENATOR  GIESSEL  requested  a  written  opinion  from  both  the                                                               
Department  of Law  and Legislative  Legal regarding  whether the                                                               
bill is an allocation of  state resources, an allocation of land,                                                               
and whether the process could be  in fact done by regulation. She                                                               
asked  that  in   addition  to  the  written   opinion  that  the                                                               
ramification  from a  "no recommendation"  or  a negative  action                                                               
from the legislature saying no be explained as well.                                                                            
                                                                                                                                
4:14:38 PM                                                                                                                    
SENATOR GIESSEL withdrew Conceptual Amendment 1.                                                                                
                                                                                                                                
CHAIR BIRCH added that the  committee will have an opportunity to                                                               
look  at how  the current  water  quality regulations  are to  be                                                               
integrated with the legislation.                                                                                                
                                                                                                                                
SENATOR  REINBOLD   concurred  with  Senator  Giessel   that  the                                                               
legislation is an appropriation.                                                                                                
                                                                                                                                
4:15:16 PM                                                                                                                    
CHAIR BIRCH held SB 51 in committee.                                                                                            

Document Name Date/Time Subjects
SB42 Aguilar Cases in Alaska 2014.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Fiscal Note DNR-MLW 3.22.19.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Sectional Analysis Version A.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Sponsor Statement.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Tanana Chiefs Letter 3.22.19.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Version A.PDF SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Aguilar v. U.S..pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB 51 Version R 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Changes Version K to Version R.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 18 AAC 70.016.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 AFA Resolution 3.12.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Brenda Jones Letter 3.19.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Gerald Lapp Email 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Jessie Badger Letter 3.19.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Jim Clark Testimony 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Laura Stats Email 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Mickael Mackowiak Letter 3.19.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEACC Guy Archibald Testimony 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEACC Petition 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEACC Sarah Davidson Testimony 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEAFA Letter 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Steve Winker Email 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51