Legislature(2001 - 2002)

03/20/2001 02:45 PM House ARR

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
                       JOINT COMMITTEE ON                                                                                     
                ADMINISTRATIVE REGULATION REVIEW                                                                              
                         March 20, 2001                                                                                         
                           2:45 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
HOUSE MEMBERS PRESENT                                                                                                         
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative Jeannette James                                                                                                  
Representative Joe Hayes                                                                                                        
                                                                                                                                
HOUSE MEMBERS ABSENT                                                                                                          
                                                                                                                                
All House members present                                                                                                       
                                                                                                                                
SENATE MEMBERS PRESENT                                                                                                        
                                                                                                                                
Senator Robin Taylor, Vice Chair                                                                                                
Senator Lyda Green                                                                                                              
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
SENATE MEMBERS ABSENT                                                                                                         
                                                                                                                                
All Senate members present                                                                                                      
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Drew Scalzi                                                                                                      
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
KACHEMAK BAY CLOSURE TO BOTTOM MARICULTURE                                                                                      
(continued from 3/8/01)                                                                                                         
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
RODGER PAINTER, Vice President                                                                                                  
Alaskan Shellfish Growers Association                                                                                           
PO Box 20704                                                                                                                    
Juneau, Alaska 99802                                                                                                            
POSITION STATEMENT:  Testified on the closure of Kachemak Bay to                                                                
on-bottom mariculture.                                                                                                          
                                                                                                                                
BOB HARTLEY                                                                                                                     
Alaskan Shellfish Growers Association                                                                                           
PO Box 2284                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Suggested that other management methods for                                                                
the Kachemak Bay area should be reviewed.                                                                                       
                                                                                                                                
ELLEN FRITTS, Deputy Director                                                                                                   
Division of Habitat and Restoration,                                                                                            
Alaska Department of Fish & Game                                                                                                
PO Box 25526                                                                                                                    
Juneau, Alaska 99802-5526                                                                                                       
POSITION STATEMENT:  Recounted the process that led to the                                                                      
regulation [to close Kachemak Bay to on-bottom mariculture].                                                                    
                                                                                                                                
RON LONG                                                                                                                        
Quetekcak Shellfish Hatchery                                                                                                    
Box 2464                                                                                                                        
Seward, Alaska                                                                                                                  
POSITION STATEMENT:  Expressed concerns.                                                                                        
                                                                                                                                
JOHN AGOSTI, President                                                                                                          
Alaskan Shellfish Growers Association                                                                                           
PO Box 2284                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Expressed concerns.                                                                                        
                                                                                                                                
JEFF PARKER                                                                                                                     
(No address provided.)                                                                                                          
POSITION STATEMENT:  Expressed concerns.                                                                                        
                                                                                                                                
GARY SEIMS, President                                                                                                           
Kachemak Shellfish Growers Cooperative                                                                                          
PO Box 4213                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Expressed concerns with the regulations                                                                    
banning clam farming in Kachemak Bay.                                                                                           
                                                                                                                                
DEBBIE SEIMS, Coordinator                                                                                                       
Kachemak Shellfish Growers Cooperative                                                                                          
PO Box 4213                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Expressed concerns with the regulations                                                                    
banning clam farming in Kachemak Bay.                                                                                           
                                                                                                                                
LISA NOLAN, Owner                                                                                                               
The Homestead Restaurant                                                                                                        
PO Box 15282                                                                                                                    
Fritz Creek, Alaska 99603                                                                                                       
POSITION  STATEMENT:   Expressed  concerns  with the  regulations                                                               
banning clam farming in Kachemak Bay.                                                                                           
                                                                                                                                
JIM REEVES, Attorney                                                                                                            
for the Clam Farming Industry in Kachemak Bay                                                                                   
1031 W. 4th Avenue                                                                                                              
Anchorage, Alaska 99517                                                                                                         
POSITION  STATEMENT:    Testified   that  the  department  simply                                                               
disagrees  with  the  [aquaculture]   policy  determined  by  the                                                               
legislature.                                                                                                                    
                                                                                                                                
ROBERTA HIGHLAND                                                                                                                
Kachemak Bay Conservation Society                                                                                               
(No address provided.)                                                                                                          
POSITION  STATEMENT:   Testified in  support of  the department's                                                               
decision to ban on-bottom clam farming in Kachemak Bay.                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 01-8, SIDE A                                                                                                               
Number 001                                                                                                                      
                                                                                                                                
CHAIR LESIL McGUIRE called the  Joint Committee on Administrative                                                               
Regulation Review  to order  at 2:45  p.m.   All members  were in                                                               
attendance at the call to order.                                                                                                
                                                                                                                                
KACHEMAK BAY CLOSURE TO BOTTOM MARICULTURE                                                                                    
                                                                                                                                
CHAIR  McGUIRE announced  that the  committee would  continue its                                                               
March  8,   2001,  hearing  regarding   the  closure   of  bottom                                                               
mariculture in  Kachemak Bay.  She  noted that on the  morning of                                                               
March 9,  2001, Lieutenant Governor Ulmer  signed the regulations                                                               
[banning on-botton mariculture in Kachemak  Bay] into law.  Chair                                                               
McGuire pointed out  that committee members should  have a letter                                                               
from  Lieutenant  Governor  Ulmer  regarding the  fact  that  she                                                               
didn't have  any knowledge  that the  committee intended  to have                                                               
another hearing on this issue.                                                                                                  
                                                                                                                                
CHAIR McGUIRE  explained that the  committee will have  to decide                                                               
whether  or not  it is  the committee's  intention to  repeal the                                                               
regulations  that  have  been  signed  into law.    That  is  the                                                               
committee's  only  recourse.     However,  in  the  meantime  the                                                               
committee will continue to hear public testimony on the matter.                                                                 
                                                                                                                                
Number 0303                                                                                                                     
                                                                                                                                
RODGER  PAINTER,   Vice  President,  Alaskan   Shellfish  Growers                                                               
Association, noted  that the committee packet  should include two                                                               
letters regarding the  status of the littleneck  clam resource in                                                               
Kachemak  Bay.   The information,  which was  compiled from  [the                                                               
Alaska   Department  of]   Fish  &   Game  surveys   and  harvest                                                               
statistics,  clearly [illustrates]  there  is  a serious  problem                                                               
with  the littleneck  clam resource  in Kachemak  Bay.   He said,                                                               
"Unfortunately, the  banning of  aquatic farming in  the critical                                                               
habitat area (CHA) will ensure  the elimination of any commercial                                                               
sources of clams from the  bay because I'm quite confident [that]                                                               
at some  point the Board  of Fisheries will close  the commercial                                                               
harvest  in Kachemak  Bay."   Mr. Painter  remarked that  all the                                                               
beaches on which the department  conducted surveys are far beyond                                                               
commercial levels and should be  closed to commercial harvesting.                                                               
Mr. Painter  referred to  his March 9,  2001, letter  that quotes                                                               
Mr.  James  Brady,  Central   Regional  Supervisor,  Division  of                                                               
Commercial Fisheries,  Alaska Department of Fish  & Game (ADF&G),                                                               
as saying that  a productive clam beach has  [an average density]                                                               
of [at least]  65 clams per square meter, clams  that are greater                                                               
than legal size.   The department's surveys also show  that for a                                                               
number of  years, there have been  no beaches with that  level of                                                               
clams.                                                                                                                          
                                                                                                                                
MR. PAINTER turned  to the public comment on  the regulations and                                                               
informed  the committee  that "we"  were told  by ADF&G  that the                                                               
basis for the  regulations was the literature  review prepared by                                                               
Dr. William  Hauser, Division of Habitat  and Restoration, ADF&G.                                                               
Several  times   [the  Alaskan  Shellfish   Growers  Association]                                                               
requested  an explanation  in regard  to how  the department  was                                                               
recommending a ban when [Dr.  Hauser's literature review] doesn't                                                               
"do  that."   He  remarked  that it  is  difficult  to see  which                                                               
sections  of the  literature  review  support a  ban.   The  only                                                               
justification  from the  department was  that [the  ban occurred]                                                               
due to  the department's analysis  of the literature study.   Mr.                                                               
Painter  found  it  interesting   that  the  department's  formal                                                               
response, after  the public  comment period,  was almost  void of                                                               
references to  Dr. Hauser's paper.   Therefore, he  believed that                                                               
once the study  was discredited, the department  backed away from                                                               
that as  a justification for  the ban.   Mr. Painter  related his                                                               
belief that it is unfortunate  that this regulation has proceeded                                                               
in this  manner.   He hoped  that the  reason the  regulation was                                                               
signed  after  the  hearing  wasn't  to  avoid  this  committee's                                                               
involvement  in   the  development   or  final  passage   of  the                                                               
regulation,  because   that  would  be  an   intolerable  act  of                                                               
arrogance.                                                                                                                      
                                                                                                                                
Number 0691                                                                                                                     
                                                                                                                                
SENATOR  LINCOLN referred  to the  department's  response to  the                                                               
concerns  expressed by  Dr. RaLonde  and that  response seems  to                                                               
include numerous references to literature  Dr. Hauser has written                                                               
in other areas.                                                                                                                 
                                                                                                                                
MR. PAINTER acknowledged that he had  that and felt it was a good                                                               
case of shooting the messenger who  is carrying a message that is                                                               
disliked.    Mr.   Painter  noted  that  he   helped  prepare  an                                                               
environmental  assessment  report   regarding  the  Exxon  Valdez                                                               
littleneck clam restoration project.   That report dealt with all                                                               
the issues  raised in [Dr. Hauser's]  paper.  Dr. Hauser  was the                                                               
lead  reviewer of  the Exxon  Valdez report  and he  approved the                                                               
report.                                                                                                                         
                                                                                                                                
Number 0841                                                                                                                     
                                                                                                                                
BOB HARTLEY, Alaskan Shellfish  Growers Association, informed the                                                               
committee that he is an oyster  farmer and has been involved with                                                               
mariculture since  1991.   Although he doesn't  have a  clam farm                                                               
nor does he  intend to apply for such, he  felt that there should                                                               
be  review of  ways  that allow  responsible  development in  the                                                               
Kachemak Bay area.   He recalled his first visit  to Kachemak Bay                                                               
in  1968,  when practically  everyone  in  that area  made  their                                                               
living  from  Kachemak  Bay  because  there  were  shrimp,  crab,                                                               
halibut, and salmon.  However, today  there are no crab or shrimp                                                               
and the  trees are all  dead.  "As far  as the bay  is concerned,                                                               
our stewardship  has been terrible,"  he lamented.   Kachemak Bay                                                               
has been  a CHA since 1972.   The regulations/plan that  the area                                                               
currently  operates  under was  written  in  1992/1993, 21  years                                                               
after the  area was identified  as a  CHA.  Although  the current                                                               
plan recognizes that suspended mariculture  is permitted, all new                                                               
applications have been suspended by  ADF&G.  Mr. Hartley said, "I                                                               
think we need to  look at our stewardship of this  area.  We have                                                               
some distinct problems  with the clam populations."   Upon review                                                               
of the statistics  provided by ADF&G, one finds  that the harvest                                                               
in 1999  was about  one-third of  what it was  in 1995,  which he                                                               
felt was due  to a lack of clams.   Furthermore, the surveys done                                                               
in Kachemak Bay illustrate that  the clam populations in the area                                                               
are in decline.  Therefore, the  banning of clam farming seems to                                                               
be a  "futile gesture."   Clam  farming is  actually a  manner in                                                               
which to  produce clams on  a sustained yield basis,  which isn't                                                               
being done in Kachemak Bay presently.   He felt that clam farming                                                               
would  provide a  base for  repopulating some  of the  beaches in                                                               
Kachemak  Bay.   Returning  to  ADF&G's  statistics, Mr.  Hartley                                                               
pointed out that  those statistics show that  the sub-legal clams                                                               
in many of the areas are  less numerous than the legal clams, and                                                               
therefore  it indicates  that "we're  not  even replacing  what's                                                               
there."    Thus,  Mr. Hartley  concluded  that  other  management                                                               
methods for this area should be reviewed.                                                                                       
                                                                                                                                
Number 1195                                                                                                                     
                                                                                                                                
SENATOR LINCOLN inquired  as to what Mr. Hartley  felt would have                                                               
been better stewardship  so that the habitat area  wouldn't be in                                                               
such decline.   She asked  whether farming clams and  having them                                                               
go elsewhere  could have a  detrimental impact on other  areas or                                                               
the food chain.                                                                                                                 
                                                                                                                                
MR. HARTLEY  replied no.  He  explained that the clams  that will                                                               
be  planted, the  brood stock,  will be  taken from  Kachemak Bay                                                               
within a  genetic area  that includes Prince  William Sound.   He                                                               
informed the  committee that the  clams stay mobile in  the water                                                               
for  about  three  weeks  and   thus  can  spread  through  great                                                               
distances.   The brood stock  in the hatchery came  from Kachemak                                                               
Bay  and   Prince  William   Sound.     With  regard   to  better                                                               
stewardship, Mr. Hartley said that  more research could have been                                                               
done.   One  of the  problems with  the management  of stocks  in                                                               
Kachemak  Bay is  that  things happened  which  people found  out                                                               
about  after the  fact.   If  there had  been  monitoring of  the                                                               
ecosystem  on  a  more  continuous   basis,  the  knowledge  that                                                               
something was wrong  would have occurred before  [the species was                                                               
gone].                                                                                                                          
                                                                                                                                
Number 1436                                                                                                                     
                                                                                                                                
SENATOR  LINCOLN asked  whether that  is what  the department  is                                                               
trying to do now.                                                                                                               
                                                                                                                                
MR. HARTLEY pointed  out that the department has  known about the                                                               
clam  population decline  since  1995.   However, the  department                                                               
hasn't made  a proposal to the  Board of Fish to  reduce the clam                                                               
harvest  for either  sport or  commercial use  during that  time.                                                               
Furthermore,  the  clam  surveys  have  been  rather  reactionary                                                               
versus being instituted by the department.                                                                                      
                                                                                                                                
Number 1499                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES   agreed  with   Mr.  Hartley   that  there                                                               
should've  been  more research.    She  then turned  to  Alaska's                                                               
constitutional mandate  to manage resources  for common use  on a                                                               
sustained yield  basis, which she  interpreted to mean  that "we"                                                               
utilize  these  resources while  maintaining  them  to always  be                                                               
available.   However, the research  that was done didn't  seem to                                                               
be done to maintain a sustained  yield, but rather to not be able                                                               
to harvest the clams.                                                                                                           
                                                                                                                                
MR.  HARTLEY related  his belief  that the  department's research                                                               
was  done  in  order  to   adjust  harvest  levels  that  led  to                                                               
eventually not having anything to harvest.                                                                                      
                                                                                                                                
REPRESENTATIVE  JAMES  surmised  that when  research  illustrates                                                               
that  there are  less  than  the year  before,  then the  harvest                                                               
should  be  reduced  or  the   growing  of  the  crop  should  be                                                               
increased.  Therefore, both harvest  reduction and increased crop                                                               
are required.                                                                                                                   
                                                                                                                                
MR. HARTLEY agreed.                                                                                                             
                                                                                                                                
Number 1626                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  turned  to  the issue  of  predator  netting  and                                                               
explained  that  the  department   faces  a  broad  statute  that                                                               
seemingly  ties  the department's  hands  in  regard to  predator                                                               
netting.   However, there is  some argument that the  statute was                                                               
meant  to  limit  oil  and   gas  leasing  and  not  address  the                                                               
mariculture  industry.   She requested  that Mr.  Hartley discuss                                                               
some of  the reports  that have involved  Dr. Hauser  and discuss                                                               
the limited impact of predator netting.                                                                                         
                                                                                                                                
MR. HARTLEY  noted that Mr.  Painter alluded to the  Exxon Valdez                                                               
research that  was performed in  regard to  repopulating beaches,                                                               
particularly  in  subsistence  areas  of  Prince  William  Sound,                                                               
Nanwalek, and  Port Graham.   In  conducting this  project, ADF&G                                                               
sponsored the  project and  thus Dr.  Hauser and  ADF&G officials                                                               
went through  an environmental assessment  of the  project, which                                                               
included a discussion  of the effects of predator  netting on the                                                               
surrounding  areas.   Basically,  the report  says that  predator                                                               
netting is  a nonfactor and  won't cause any  harm to any  of the                                                               
animals.   The predators that do  utilize clams as part  of their                                                               
food source  can utilize clams  elsewhere.  This  report directly                                                               
contradicts  what Dr.  Hauser included  in his  later [literature                                                               
review].                                                                                                                        
                                                                                                                                
CHAIR McGUIRE  pointed out that  [Exxon Valdez research  that led                                                               
to this] report was completed in  1995.  Chair McGuire turned the                                                               
gavel over to Senator Taylor.                                                                                                   
                                                                                                                                
Number 1785                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SCALZI expressed  the need  for the  committee to                                                               
hear a  bit of the comments  from the Cook Inlet  Keeper Program,                                                               
as   well  as   comments/   findings  from   the  Department   of                                                               
Environmental  Conservation  (DEC)   inspections  of  mariculture                                                               
farmers.                                                                                                                        
                                                                                                                                
MR.  HARTLEY explained  that  the Cook  Inlet  Keeper Program  is                                                               
sponsored to maintain water quality  in the Cook Inlet region and                                                               
to  ensure  a very  clean  environment.    He recalled  that  the                                                               
program  was  sponsored by  the  oil  companies  as a  result  of                                                               
problems  that existed  in Cook  Inlet.   The  Cook Inlet  Keeper                                                               
Program  is in  favor of  mariculture because  mariculture cannot                                                               
occur without clean  water.  Once mariculture is in  an area, the                                                               
water  standard is  established,  which was  borne  out in  court                                                               
cases in  the State  of Washington  in the  late 1950s  and early                                                               
1960s.   Mr. Hartley  reiterated the  need for  clean water.   He                                                               
also  noted  that  DEC's   PSP  (paralytic  shellfish  poisoning)                                                               
testing  has,  perhaps, saved  several  people  from getting  ill                                                               
because  products out  of Kachemak  Bay are  tested once  a week.                                                               
Several times the  tests have shown PSP is in  the water and that                                                               
results in the  business being closed and warnings  going out [to                                                               
the public].                                                                                                                    
                                                                                                                                
Number 1960                                                                                                                     
                                                                                                                                
MR. HARTLEY,  in response  to Vice  Chair Taylor,  explained that                                                               
there is a  state-of-the-art shellfish hatchery in  Seward.  This                                                               
hatchery  was built  and  supported by  Exxon  Valdez funds,  and                                                               
sponsored by  ADF&G.  This  hatchery provides an  in-state source                                                               
of oyster  and clam spat.   He thought that this  hatchery is the                                                               
only  place  in   the  United  States  where   one  could  obtain                                                               
littleneck clam spat.  In  further response to Vice Chair Taylor,                                                               
Mr. Hartley  agreed that  the sale  of clam spat  is part  of the                                                               
revenue supporting  the hatchery.   Part  of the  management plan                                                               
for the  hatchery, as established  by ADF&G,  was that it  had to                                                               
include  littleneck  clams,   geoducks,  and  purple-hinged  rock                                                               
scallops  within its  business plan.   Therefore,  the hatcheries                                                               
business  plan  was   predicated  on  that  as   well  as  oyster                                                               
production.  However,  the department has made  it very difficult                                                               
for  anyone to  do on-bottom  aquaculture.   In response  to Vice                                                               
Chair Taylor, Mr. Hartley said  that this regulation [banning on-                                                               
bottom mariculture]  wouldn't shut down his  operation.  However,                                                               
if  the   hatchery  isn't  economically   viable  [due   to  this                                                               
regulation],  then spat  will have  to  be obtained  from out  of                                                               
state again.                                                                                                                    
                                                                                                                                
VICE  CHAIR TAYLOR  expressed concern  with regard  to who  would                                                               
purchase  the spat  if current  and future  farms are  shut down.                                                               
Vice Chair  Taylor mentioned  that he was  one of  those involved                                                               
with  forcing the  money  from the  Exxon  Valdez penalties  into                                                               
projects such as the Sea Life Center and the hatchery.                                                                          
                                                                                                                                
Number 2141                                                                                                                     
                                                                                                                                
SENATOR LINCOLN  referred to a  document regarding  the Nanwalek,                                                               
Port Graham,  Tititlek(ph) restoration  that said,  "The planting                                                               
of the  seed of  select beaches  would be  initiated May  of '96,                                                               
would continue through  November '99, and harvest  of the planted                                                               
clams would commence 2001 and  would continue through 2004."  She                                                               
inquired as to the progress of this project.                                                                                    
                                                                                                                                
MR. HARTLEY answered that the  Port Graham portion of the project                                                               
is  going great  and is  on  schedule.   He wasn't  aware of  any                                                               
problems with this project.                                                                                                     
                                                                                                                                
MR. PAINTER  informed the committee  that there were a  number of                                                               
test plots  that were put  up in  different areas, some  of which                                                               
were located  on stable  beaches.   Therefore, when  the predator                                                               
netting was put  in place and the beaches shifted  around, it was                                                               
found that  the predator  netting resulted in  a higher  bed than                                                               
the rest  of the beach  because the predator netting  was holding                                                               
the substrate in place.                                                                                                         
                                                                                                                                
VICE CHAIR TAYLOR announced that  Ms. Fritts, ADF&G, was the next                                                               
witness.                                                                                                                        
                                                                                                                                
Number 2343                                                                                                                     
                                                                                                                                
ELLEN   FRITTS,  Deputy   Director,  Division   of  Habitat   and                                                               
Restoration, Alaska Department  of Fish & Game, said  that she as                                                               
well as others on-line were available to answer questions.                                                                      
                                                                                                                                
VICE CHAIR  TAYLOR recalled  that at the  last hearing  the chair                                                               
made it  clear that the hearing  would be limited.   He felt that                                                               
the  process was  going to  be ongoing  and involve  discussions.                                                               
Therefore, he inquired as to why this is now a "fact de comple."                                                                
                                                                                                                                
MS. FRITTS  said that the  department undertook an  extensive 18-                                                               
month process during which there  were public meetings and multi-                                                               
agency planning  team [meetings]  that reviewed  the regulations,                                                               
statute, and the  state constitution.  During  the public comment                                                               
periods,  there was  no significant  difference in  the kinds  of                                                               
comments the  department received.   Furthermore,  the department                                                               
provided  a detailed  response, dated  February 6,  2001, to  the                                                               
committee that listed  the 28 different kinds  of public comments                                                               
that were  heard.  At  last week's ARR hearing  nothing different                                                               
was heard.   Prior to the  committee requesting a hearing  on the                                                               
matter, the regulations  had been at the Department of  Law for a                                                               
number  of  weeks.   Ms.  Fritts  said,  "We  just did  not  hear                                                               
anything  new  and  different  and   we  did  not  accelerate  or                                                               
decelerate  what the  Department of  Law  was doing.   This  [is]                                                               
based on a  ... very clear law.   We didn't stop  them from doing                                                               
their job."                                                                                                                     
                                                                                                                                
VICE CHAIR  TAYLOR remarked that  it wasn't a matter  of stopping                                                               
the Department of  Law from doing their job, but  rather it was a                                                               
matter  of  courtesy  and commodity  between  the  executive  and                                                               
legislative branches.  "Actions that  occurred ... since the last                                                               
hearing, to  say that's disappointing  is an  understatement," he                                                               
said.    He  used  the  Department  of  Transportation  &  Public                                                               
Facilities'  struggle  with  airport leasing  regulations  as  an                                                               
example of  how this committee  worked well with a  department on                                                               
difficult regulations.   Vice Chair  Taylor said, "I  was totally                                                               
shocked  when I  was  informed that  those  regulations had  been                                                               
taken to the lieutenant governor  and the lieutenant governor had                                                               
expedited  them.   I  can't imagine  that  there's anything  else                                                               
occurred other  than an expediting of  that.  To suggest  that it                                                               
was a  matter of course and  well it was going  to happen anyhow,                                                               
is very, very concerning, I think, to all of us."                                                                               
                                                                                                                                
Number 2522                                                                                                                     
                                                                                                                                
SENATOR LINCOLN  quoted Lieutenant Governor Ulmer's  letter dated                                                               
March 14, 2001,  as saying, "At the  time, I did not  know that a                                                               
specific  date  had  been  set   for  another  hearing  on  these                                                               
regulations."   Therefore, she didn't  believe that there  is any                                                               
fault on behalf of the lieutenant governor.                                                                                     
                                                                                                                                
VICE CHAIR  TAYLOR said he  wasn't suggesting that there  was any                                                               
fault  to  be  placed  on the  lieutenant  governor's  shoulders.                                                               
However, whomever  carried the regulations for  the department to                                                               
the lieutenant  governor's office  didn't bother to  mention [the                                                               
fact that  another meeting on  the regulations was pending].   He                                                               
reiterated his concern with the  speed with which the regulations                                                               
were signed into law.                                                                                                           
                                                                                                                                
Number 2630                                                                                                                     
                                                                                                                                
RON   LONG,   Quetekcak   Shellfish   Hatchery,   testified   via                                                               
teleconference.  Mr. Long shared  the same concerns as Vice Chair                                                               
Taylor  regarding the  speed with  which  these regulations  were                                                               
signed  into  law.    He   expressed  further  concern  with  the                                                               
department's [written]  responses to Mr. RaLonde's  charges.  The                                                               
department's response  to the  four invasive  species found  on a                                                               
farm in Prince William Sound  seemed to indicate that the species                                                               
were introduced by  the farming activities.   However, that isn't                                                               
the case because those species  could have been introduced by any                                                               
number of activities.  Although  Mr. Long agreed with Mr. Hartley                                                               
that a little  better stewardship could have been  done, he noted                                                               
the possibility that  the critical habitat area plan  may need to                                                               
be  revised  because it  has  conflicting  goals.   The  critical                                                               
habitat area plan  has the goal, on the one  hand, of maintaining                                                               
the  sustained yield  resource, and,  on the  other hand,  making                                                               
that resource available  to all users, except farmers.   Mr. Long                                                               
was  also troubled  by the  department's  response regarding  the                                                               
drift pattern.   On one  hand, the  department seems to  say that                                                               
farming  activities  won't  enhance   or  seed  adjacent  beaches                                                               
because  of current  patterns within  the  critical habitat  area                                                               
that will  carry those seeds out  of the area.   However, another                                                               
part  of  the document  maintains  that  the [drift  pattern]  is                                                               
important  in the  area so  that the  resulting larva  from adult                                                               
clams  on the  farm site  will  enhance adjacent  beaches and  be                                                               
available  for  common  use.    Mr. Long  pointed  out  that  new                                                               
information is  coming in.   As mentioned earlier the  EVOS study                                                               
and beach enhancement project show  zero or near zero survival of                                                               
juvenile  clams   without  predator   netting,  which   has  been                                                               
evidenced  in Port  Graham.   "Again,  it  seems inconsistent  to                                                               
suggest that ... the fact  that predator netting will be excluded                                                               
in  an  enhancement  project,  suggests  that  the  clams  are  a                                                               
expendable  resource  and that  again  is  inconsistent with  the                                                               
sustained yield principle."   Mr. Long also  pondered the urgency                                                               
with which these regulations were signed.  Mr. Long remarked:                                                                   
                                                                                                                                
     The  entire regulatory  structure for  the rest  of the                                                                    
     state is  under a re-write  right now; raising  as many                                                                    
     questions  as it  is answers.    And to  do a  thorough                                                                    
     analysis and  get answers to  those questions,  is part                                                                    
     of  the process  to  wind  up with  a  workable set  of                                                                    
     regulations that  protects all the users,  and protects                                                                    
     the interests  of the farmers  as well, and  allows for                                                                    
     enhancement project.   After that process  is complete,                                                                    
     would seem  to me to  be the appropriate time  to apply                                                                    
     the  specifics to  areas such  as the  critical habitat                                                                    
     area.                                                                                                                      
                                                                                                                                
VICE CHAIR  TAYLOR asked Mr. Long  if he was concerned  about the                                                               
economic viability  of the Quetekcak Shellfish  Hatchery in light                                                               
of this closure.                                                                                                                
                                                                                                                                
MR. LONG pointed out that  there are no permitted littleneck clam                                                               
farms  in  the  CHA  and  thus  the  immediate  impact  can't  be                                                               
measured.  However, over the  future, the hatchery and applicants                                                               
have  anticipated   being  able  to  conduct   on-bottom  farming                                                               
activities within a CHA, and  therefore that would be critical to                                                               
the [hatchery's] viability.                                                                                                     
                                                                                                                                
JOHN  AGOSTI, President,  Alaskan Shellfish  Growers Association,                                                               
testified via teleconference.  He read the following testimony:                                                                 
                                                                                                                                
     In December  '99 many Alaskans testified  in support of                                                                    
     on-bottom shellfish farming in  Kachemak Bay at several                                                                    
     public  hearings  held  by [ADF&G],  specifically  they                                                                    
     were hearings  ... on both personal  watercraft and on-                                                                    
     bottom farming  in the Kachemak Critical  Habitat Area.                                                                    
     At  the Homer  hearing itself,  50 percent  more people                                                                    
     spoke  in  favor  of  on-bottom  farming  and  ...  the                                                                    
     favorable     testimony     highlighted    the     many                                                                    
     rehabilitative  and   enhancing  benefits   of  aquatic                                                                    
     farming.    We  also   pointed  out  that  the  present                                                                    
     management  plan   for  the  critical   habitat  [area]                                                                    
     specifically  and repeatedly  discusses ...  permitting                                                                    
     aquatic  farming  in  the  bay.    This  January  we've                                                                    
     learned  that  Kachemak  Bay  oyster  farm  applicants'                                                                    
     applications were summarily denied.                                                                                        
                                                                                                                                
TAPE 01-8, SIDE B                                                                                                               
                                                                                                                                
MR. AGOSTI continued:                                                                                                           
                                                                                                                                
     ...  department,  to date,  had  involved  one form  of                                                                    
     aquatic  farming, that  of  on-bottom  farming, in  one                                                                    
     specific bay,  Kachemak Bay.   Now we're  learning that                                                                    
     suddenly all types of aquatic  farming have been banned                                                                    
     from  all critical  habitat [areas]  statewide.   There                                                                    
     was no  public explanation  or public process  and this                                                                    
     seems  counter  [to]  the   Kachemak  Bay  plan,  which                                                                    
     specifically   discusses  permitting   aquatic  farming                                                                    
     presently.  I would contend  that this seems to violate                                                                    
     public    process    requirements    of    our    state                                                                    
     administrative  code.    I would  also  feel  that  the                                                                    
     statutory  mandate to  maintain  and enhance  shellfish                                                                    
     populations  and  their  habitats  in the  bay  is  not                                                                    
     happening.   ... The  littleneck clam  population there                                                                    
     experience  heavy  recreational and  natural  predation                                                                    
     pressure  with  pronounced  depletions or  absences  on                                                                    
     various  beaches  ....    This is  a  concern  of  many                                                                    
     people,  especially the  residences there  in the  area                                                                    
     ....  I  would say the department's  own data published                                                                    
     last summer  shows that of  277 beach  samples analyzed                                                                    
     over two years on  12 different beaches, three-quarters                                                                    
     of them  had less  than ten  clams, legal  or sub-legal                                                                    
     clams,  per  square  foot.    And  that,  ...  I  would                                                                    
     characterize as [a] depleted population.   A quarter of                                                                    
     those  samples had  zero or  only one  clam per  square                                                                    
     foot,  which  I  would say  is  virtually  nonexistent.                                                                    
     These data show  that populations are very  low on many                                                                    
     beaches  around the  bay ....   Of  those 277  samples,                                                                    
     only 6  percent had  clam density  equal to  the levels                                                                    
     that are commonly  reared on clam farms,  ... which is,                                                                    
     for reference,  is about 30  to 75 legal  and sub-legal                                                                    
     clams per square foot.                                                                                                     
                                                                                                                                
MR. AGOSTI concluded:                                                                                                           
                                                                                                                                
     One  other  point   I'd  like  to  make   is  that  the                                                                    
     protection of  public access of the  shellfish resource                                                                    
     in  the  bay  is   mandated  by  the  management  plan,                                                                    
     includes  all  Alaskans not  just  the  few people  who                                                                    
     presently manage to get to the  beaches to dig them.  I                                                                    
     think the  department's policy is  effectively limiting                                                                    
     access to the  relatively few who can manage  to get to                                                                    
     the beaches.   ... To  draw a parallel,  the allocation                                                                    
     of the  majority of our  state's fin  fisheries operate                                                                    
     in  recognition of  the principle  that access  for the                                                                    
     greater  public through  the fin  fisheries is  greatly                                                                    
     increased  by   the  commercial  fisheries   supply  of                                                                    
     product  to   the  greater  public.     This  is  being                                                                    
     prevented by the present  policy that disallows aquatic                                                                    
     farming,  which would  make shellfish  in the  bay much                                                                    
     more widely available to a great demand.                                                                                   
                                                                                                                                
     Finally, I would  like to conclude with  a comment that                                                                    
     the  department   apparently  wants  to   prevent  even                                                                    
     specific research in the  habitat designed to determine                                                                    
     exactly what effects may occur  with aquatic farming in                                                                    
     Kachemak  Bay.   Twice in  1999, an  application for  a                                                                    
     research project  was submitted to ...  investigate the                                                                    
     ecological impacts of  clam farming on a  small plot of                                                                    
     beach in Seldovia  Bay that has depleted  of all clams.                                                                    
     This would  have been the  first research done  in this                                                                    
     specific   habitat.     Instead  of   merely  reviewing                                                                    
     literature  and  other  areas, this  research  would've                                                                    
     specifically  answered questions  on what  real effects                                                                    
     may happen in Kachemak Bay  with clam farming.  And the                                                                    
     department twice  denied that.   So, I  would interpret                                                                    
     that  as  the  department  really does  not  want  real                                                                    
     knowledge of the effects to occur to be made public.                                                                       
                                                                                                                                
Number 2747                                                                                                                     
                                                                                                                                
JEFF   PARKER,  testifying   via  teleconference,   informed  the                                                               
committee that  although he is  a member  of the Board  of Alaska                                                               
Sport Fishing Association and the  Anchorage Fish & Game Advisory                                                               
Committee,  as well  as Vice  President of  the State  Council of                                                               
Trout  Unlimited,  he  is  speaking  on  his  own  behalf.    The                                                               
aforementioned  bodies haven't  had  an  opportunity to  consider                                                               
this issue.   On this issue,  he felt that there  is a difference                                                               
in the existing mariculture in  Kachemak Bay versus what is being                                                               
proposed.   The proposal is  to take certain lands,  for purposes                                                               
of on-bottom  farming, out  of production  as a  public resource,                                                               
which  is different  from the  in-water mariculture  that exists.                                                               
From that  he has  three concerns.   [He expressed  concern that]                                                               
the  [proposal]  is an  appropriation  of  clams from  public  to                                                               
private  use and  thus amounts  to  an exclusive  use issue  that                                                               
could raise  constitutional questions  that don't arise  in other                                                               
forms of mariculture.  Furthermore,  there is the issue regarding                                                               
whether  or not  [the state's]  resources are  appropriated to  a                                                               
specific  set of  people.   He also  expected that  the Anchorage                                                               
Fish  & Game  Advisory  Committee would  have concerns  regarding                                                               
predator nets.                                                                                                                  
                                                                                                                                
MR.  PARKER  then  turned  to  the  issue  of  stewardship.    He                                                               
explained that  most of  the stewardship  issues arising  in Cook                                                               
Inlet  and Kachemak  Bay  arise because  the  resources in  those                                                               
areas are already fully allocated.   That is the case with salmon                                                               
and shellfish in  those areas.  The problems  arising in relation                                                               
to  sustained yield,  conservation, and  public use  and dividing                                                               
the public  use tend to arise  when there is too  much commercial                                                               
pressure on a limited resource.   In the present situation, there                                                               
is  a  combination of  commercial  and  recreational harvest  and                                                               
allocation  of a  wild resource  to  those two  groups, which  is                                                               
similar to the  situation in the salmon fisheries.   However, the                                                               
proposal is different in that  it would allocate certain areas of                                                               
wild and reared stock to a  limited set of users.  Therefore, Mr.                                                               
Parker felt that  such a proposal would result  in exclusive use.                                                               
Mr. Parker  reiterated that the stewardship  issue usually arises                                                               
when there is  too much use, usually too much  commercial use and                                                               
thus  he hoped  [the committee]  would think  about understanding                                                               
the department's actions.                                                                                                       
                                                                                                                                
Number 2566                                                                                                                     
                                                                                                                                
MR. PARKER,  in response to  Vice Chair Taylor, affirmed  that he                                                               
is familiar  with the area  being discussed.   He then  turned to                                                               
Vice Chair  Taylor's question  regarding his  thoughts as  to why                                                               
clams in the [Kachemak Bay]  area have steadily declined over the                                                               
past  six years.   Mr.  Parker  informed the  committee that  the                                                               
Board  of  Fisheries  has  closed   some  beaches  to  commercial                                                               
harvest.                                                                                                                        
                                                                                                                                
Number 2488                                                                                                                     
                                                                                                                                
GARY  SEIMS, President,  Kachemak Shellfish  Growers Cooperative,                                                               
testified via  teleconference.  Mr. Seims  provided the following                                                               
testimony:                                                                                                                      
                                                                                                                                
     As   the  President   of  Kachemak   Shellfish  Growers                                                                    
     Cooperative, I'm  concerned by the current  closure for                                                                    
     new  applications for  aquatic farm  sites in  Kachemak                                                                    
     Bay,  as well  as these  regulations closing  on-bottom                                                                    
     aquatic  farming.   ...   The diversity  of product  in                                                                    
     aquatic  farming is  important  to the  success of  our                                                                    
     industry.   Our  environmentally friendly  industry has                                                                    
     created jobs  and economic growth where  there was none                                                                    
     before.   The  shellfish that  our cooperative  members                                                                    
     provide is the only  fresh product harvested year round                                                                    
     in  Kachemak  Bay  for  wholesale  and  retail  seafood                                                                    
     markets.   A hundred  and twenty-five  thousand dollars                                                                    
     in  cooperative  sales  last  year,  is  just  a  small                                                                    
     percentage of what  the overall potential is.   We have                                                                    
     15  members in  the  cooperative  who supplement  their                                                                    
     annual  income with  the  revenues  generated by  these                                                                    
     aquatic farms.   The ability to diversify  to allow for                                                                    
     the  farming of  littleneck clams  would create  a more                                                                    
     sustainable  industry with  the  benefit  of more  year                                                                    
     round jobs.   Unless [the Alaska Department  of] Fish &                                                                    
     Game  changes the  direction they  are currently  going                                                                    
     with the new regulations  and closures, our members are                                                                    
     very concerned  that the aquatic  farming that  we have                                                                    
     developed over the past 12  years may not be here after                                                                    
     the next  permitting and lease  renewal.   The Kachemak                                                                    
     Shellfish  Growers  Cooperative believes  that  aquatic                                                                    
     farming is a  benefit to the economic  diversity of our                                                                    
     coastal community.                                                                                                         
                                                                                                                                
Number 2395                                                                                                                     
                                                                                                                                
DEBBIE   SEIMS,    Coordinator,   Kachemak    Shellfish   Growers                                                               
Cooperative, testified  via teleconference.   Ms.  Seims informed                                                               
the committee  that she regularly receives  calls from businesses                                                               
wanting fresh Kachemak  Bay clams.  She pointed out  that most of                                                               
the local markets and restaurants  in the [Kachemak Bay] area are                                                               
forced  to obtain  their clams  from  other areas  such as  Puget                                                               
Sound  and British  Columbia, Canada.   Ms.  Seims felt  that the                                                               
local markets should be able to  obtain what they need year round                                                               
from Kachemak Bay.                                                                                                              
                                                                                                                                
LISA  NOLAN,  Owner, The  Homestead  Restaurant,  had her  letter                                                               
[included in the  committee packet] read to the  committee by Ms.                                                               
Seims.  Ms. Nolan's letter reads as follows:                                                                                    
                                                                                                                                
     In  the nine  years that  we have  owned The  Homestead                                                                    
     Restaurant,  we  have  had the  pleasure  [of]  serving                                                                    
     fresh  clams, mussels  and  oysters  from our  pristine                                                                    
     Kachemak Bay.  Our  customers travel from Europe, Asia,                                                                    
     the lower  48 and the  interior of Alaska to  dine with                                                                    
     us.   The  well traveled  customers tell  us repeatedly                                                                    
     that  the shellfish  is the  best that  they have  ever                                                                    
     enjoyed anywhere  in the world,  and the  customer from                                                                    
     middle American  that have grown up  eating Mrs. Paul's                                                                    
     frozen fish  filet take delight  in eating  the oysters                                                                    
     on  the half  shell.    This is  no  small  feat!   The                                                                    
     Kachemak  Bay  shellfish  are   a  rare  and  wonderful                                                                    
     product that needs to be nurtured.                                                                                         
                                                                                                                                
     I fell  that I must  address the need to  cultivate and                                                                    
     support the [mariculture] in Kachemak  Bay.  Last week,                                                                    
     Lieutenant Gov. Fran Ulmer  signed a regulation banning                                                                    
     clam farming in  the bay.  To coin an  old phrase, this                                                                    
     ... feels as  though we are throwing the  baby out with                                                                    
     the bath  water.   Regulations are  needed to  keep the                                                                    
     fisheries  in  check.   However,  banning  yet  another                                                                    
     source of the  economic base in our  area further rocks                                                                    
     this delicate  balance.  [Mariculture] has  no negative                                                                    
     impact on  the waters  and surrounding lands;  they use                                                                    
     no fertilizers,  pesticides or heavy equipment  and the                                                                    
     amount of acreage used is minimal.                                                                                         
                                                                                                                                
     We  have  watched  while  far too  many  of  the  other                                                                    
     natural resources disappeared from  the bay because the                                                                    
     regulations came  too late.   Please, take the  time to                                                                    
     examine  the  situation,  the area  and  the  wonderful                                                                    
     foods  that  are  in  our Kachemak  Bay  and  make  the                                                                    
     regulations that  will provide the avenue  to keep them                                                                    
     and  the economic  concerns all  moving  in a  positive                                                                    
     direction  for  us  all.    A  reasonable  and  working                                                                    
     compromise can be reached; a  ban does not utilize, nor                                                                    
     protect this Bay's bounties.                                                                                               
                                                                                                                                
     Respectfully,                                                                                                              
     Lisa S. Nolan                                                                                                              
                                                                                                                                
     [Punctuation provided.]                                                                                                    
                                                                                                                                
                                                                                                                                
Number 2171                                                                                                                     
                                                                                                                                
JIM REEVES,  Attorney for the  clam farming industry  in Kachemak                                                               
Bay,  testified via  teleconference.   He informed  the committee                                                               
that the  clam farming  industry is  merely four  individuals who                                                               
reside  in  the  Kachemak  Bay  area.    These  four  individuals                                                               
responded to  a policy  to encourage  the development  of aquatic                                                               
farming  in  Kachemak  Bay.    That policy  was  adopted  by  the                                                               
legislature, affirmed in  a number of statutes,  and expressed in                                                               
some regulations adopted by several  different departments.  That                                                               
policy was  very clearly expressed  in the Kachemak  Bay Critical                                                               
Habitat Area  plan.  Therefore,  these individuals set  out, over                                                               
two years ago, to obtain  permission from the state government to                                                               
do a renewable resource project.                                                                                                
                                                                                                                                
MR.  REEVES informed  the committee  that he  didn't believe  the                                                               
timing of  the filing  of these  regulations with  the lieutenant                                                               
governor's office was coincidence.  He  saw the filing as an "end                                                               
run" around this  committee in the hope that  the committee would                                                               
find it unnecessary to scrutinize what the department had done.                                                                 
                                                                                                                                
MR.  REEVES returned  to the  applications of  the aforementioned                                                               
four individuals.   These  individuals waited  a year  before the                                                               
department issued  decisions on  their applications.   Mr. Reeves                                                               
remarked, "We  now know  that the  department disagrees  with the                                                               
legislature's  policy   and  objects  to  the   idea  of  aquatic                                                               
farming."   After the  one year wait,  the department  denied the                                                               
applications.   Therefore, these individuals requested  a hearing                                                               
because  under   the  applicable  law,  these   individuals  were                                                               
entitled  to a  hearing  by an  independent  hearing officer  who                                                               
would  objectively scrutinize  the situation  and decide  whether                                                               
the department was doing what  the legislature authorized.  These                                                               
individuals waited  another year for  a hearing.  Now  that these                                                               
individuals  have  approached the  threshold  of  a hearing,  the                                                               
department  has "attempted  to pull  the  rug out  of the  entire                                                               
operation  by  categorically  prohibiting an  activity  that  the                                                               
legislature  ...,  the  state  constitution  ...,  and  that  the                                                               
Critical Habitat Management Plan has authorized and encouraged."                                                                
                                                                                                                                
MR. REEVES turned to the issue  of separation of powers and noted                                                               
that he  has been skeptical  of the  role of the  legislature and                                                               
this committee,  and their oversight  of state agencies  that are                                                               
administering state laws and  promulgating regulations.  However,                                                               
he said:                                                                                                                        
                                                                                                                                
     This is  a classic  example of  a department  that just                                                                    
     simply disagrees  with what the  legislature determined                                                                    
     as the  policy of the State  of Alaska.  It  just plain                                                                    
     disagrees with  what the constitution and  the statutes                                                                    
     say.   And  rather than  doing  it the  honest way,  by                                                                    
     coming to the legislature with  a proposal to amend the                                                                    
     law  to  prohibit  aquatic   farming,  and  giving  the                                                                    
     legislature  the   opportunity  to  make   that  policy                                                                    
     decision,   the  department   tried   to  preempt   the                                                                    
     legislature by  adopting a regulation that  is contrary                                                                    
     to the  statutes.  And  they did  it a manner  that was                                                                    
     obviously,  flagrantly, shamelessly  designed to  do an                                                                    
     end run  around this  committee in  the hope  that they                                                                    
     could do it without your scrutiny.                                                                                         
                                                                                                                                
MR.  REEVES related  his clients'  pleasure that  they have  this                                                               
committee and its  legislators taking the time  to determine what                                                               
happened  and  whether  some  action   should  be  taken  by  the                                                               
legislature in response.                                                                                                        
                                                                                                                                
Number 1841                                                                                                                     
                                                                                                                                
MR. REEVES, in  response to Vice Chair Taylor,  affirmed that [he                                                               
and  his clients]  are  pursuing an  appeal  of the  department's                                                               
decision of the denial of  permit applications under the existing                                                               
statutes, regulations, and  CHA management plan.   That appeal is                                                               
pending.  He  noted his belief that the  department's adoption of                                                               
the  regulation  is  to "short-circuit"  the  appeal,  in  effect                                                               
terminate the appeal before there is a hearing.                                                                                 
                                                                                                                                
VICE CHAIR TAYLOR  related his understanding that if  that is the                                                               
case, then  the clients would  lose even  if they won  the appeal                                                               
because the  law would've been  changed to prohibit  the activity                                                               
of the appeal.                                                                                                                  
                                                                                                                                
MR. REEVES agreed.                                                                                                              
                                                                                                                                
VICE  CHAIR TAYLOR  asked  if  the appeal  was  moving with  some                                                               
dispatch,  and thus  could've been  a motivating  factor for  the                                                               
department to expedite this matter.                                                                                             
                                                                                                                                
MR.  REEVES noted  that  the  appeal was  assigned  to an  appeal                                                               
officer named  Roger Dubrock(ph),  a former  Southeast judge.   A                                                               
pre-hearing conference  was held  with the hearing  officer about                                                               
three  weeks ago.   The  next step  would've been  to schedule  a                                                               
hearing.  Therefore, "the timing of this is curious," he noted.                                                                 
                                                                                                                                
VICE CHAIR  TAYLOR announced that  some committee members  had to                                                               
leave  due to  other appointments.   However,  he noted  that he,                                                               
Senator  Lincoln,   and  Representative  Scalzi  were   still  in                                                               
attendance.                                                                                                                     
                                                                                                                                
Number 1720                                                                                                                     
                                                                                                                                
ROBERTA  HIGHLAND, Kachemak  Bay Conservation  Society, testified                                                               
via teleconference.  Ms. Highland inquired  as to why there is no                                                               
Homer  biologist  online to  answer  some  of the  questions  and                                                               
comments.   She alluded  to the  notion that  commercial clamming                                                               
probably  had   something  to  do   with  the  decline   of  clam                                                               
populations.   Ms. Highland wondered  whether there has  been any                                                               
new  information during  this hearing  process  because it  seems                                                               
that this is rehashing things that  have already been done in the                                                               
prior 18 months.                                                                                                                
                                                                                                                                
MS.  HIGHLAND  announced  that   the  Kachemak  Bay  Conservation                                                               
Society supports the department's  decision to ban on-bottom clam                                                               
farming in Kachemak Bay for the following reasons:                                                                              
                                                                                                                                
     [Kachemak]  Bay is  a critical  habitat  [area] and  it                                                                    
     does merit special attention.   And in my opinion, clam                                                                    
     farming  flies  in  the  face  of  a  critical  habitat                                                                    
     designation.   Also, [Kachemak] Bay  is a  very popular                                                                    
     destination and is already  fully utilized for claming,                                                                    
     fishing, and  recreation, including the  public beaches                                                                    
     which   would   be   literally  placed   into   private                                                                    
     ownership.   Number  three,  private  clam farms  would                                                                    
     place  existing publicly  owned beaches  off limits  to                                                                    
     all other clammers.   The issue has  had thorough study                                                                    
     and review  by [ADF&G] and extensive  public review and                                                                    
     comment.   And  I say,  let the  experts do  their job.                                                                    
     Last-minute  intervention by  the  legislature in  this                                                                    
     process  seems,  to  me, unwarranted  and  poor  public                                                                    
     process.  Number six, there is  no limit on how many of                                                                    
     these permits will be issued.   How much of our private                                                                    
     beaches will  be privatized for the  economic interests                                                                    
     of  just  a   few?    Who  would   be  responsible  for                                                                    
     monitoring the impacts of  these commercial clam farms?                                                                    
     Certainly,   there  will   not  be   any  state   money                                                                    
     available.  And,  as we know, asking  permit holders to                                                                    
     monitor themselves doesn't work.   So, at this point, I                                                                    
     say that these beaches should  remain public for all to                                                                    
     use  and  be allowed  to  replenish  its numbers  in  a                                                                    
     natural way.                                                                                                               
                                                                                                                                
VICE CHAIR  TAYLOR announced that  the committee was out  of time                                                               
and  thus he  suggested that  those who  weren't able  to provide                                                               
testimony today could offer written testimony for the record.                                                                   
                                                                                                                                
Number 1528                                                                                                                     
                                                                                                                                
SENATOR  LINCOLN inquired  as to  the plan  with regard  to going                                                               
forward on this.   She recalled that Chair  McGuire had mentioned                                                               
that short  of repealing  the regulations,  the committee  can do                                                               
nothing else but hear testimony.                                                                                                
                                                                                                                                
[Upon  Chair McGuire's  return,  Vice Chair  Taylor returned  the                                                               
gavel to her.]                                                                                                                  
                                                                                                                                
CHAIR  McGUIRE  announced that  she  would  leave  it up  to  the                                                               
committee  as to  whether  there is  interest  in pursuing  this.                                                               
Short  of legislation  repealing the  regulations, the  committee                                                               
can't  do  anything.    However,  she  didn't  believe  that  the                                                               
decision to  pursue this  or not  should be  made now  but rather                                                               
another meeting should discuss that option in further detail.                                                                   
                                                                                                                                
Number 1341                                                                                                                     
                                                                                                                                
SENATOR  TAYLOR agreed  with Chair  McGuire that  this issue  has                                                               
been  rendered  moot  due  to  the  actions  of  the  department.                                                               
Senator Taylor said:                                                                                                            
                                                                                                                                
     I  believe there's  only  one  appropriate response  to                                                                    
     that and that's a budget we  still have in front of us.                                                                    
     And  if this  legislature doesn't  have the  courage to                                                                    
     assert its role  as the third ...  branch of government                                                                    
     around here  in light of  that type of  arrogance, then                                                                    
     we all  ought ... to  ... stay home because  you're not                                                                    
     worth the salt  to have you here.   Either you're going                                                                    
     to stand up for what  this legislature is all about and                                                                    
     assert the right of the  people to have an open hearing                                                                    
     and a decent process and  have some recourse for giving                                                                    
     direction to the executive branch,  which is what we do                                                                    
     by policy -  that's why we pass these laws  in the very                                                                    
     first place -....                                                                                                          
                                                                                                                                
SENATOR  LINCOLN  said that  although  she  could understand  the                                                               
frustration, she didn't believe  that the legislature should look                                                               
to further  punish those  that receive the  benefit of  the ADF&G                                                               
budget.   "I just  beg of  this committee,  let's not  punish our                                                               
Alaskans," she requested.                                                                                                       
                                                                                                                                
Number 1197                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  noted that  she  has  been  asked why  the  Joint                                                               
Committee  on Administrative  Regulation  Review  is spending  so                                                               
much time  on mariculture.   To  that she  pointed out  that this                                                               
committee's job is  to oversee the regulatory  process and ensure                                                               
that  the regulations  comport  with  the legislature's  original                                                               
intent.   Therefore, she felt  that if legislation to  repeal the                                                               
regulations  isn't  drafted,  then  the committee,  at  the  very                                                               
least,  should  draft a  letter  that  outlines the  department's                                                               
interpretation of  two key  statutes.   Those statutes  being the                                                               
one dealing  with the critical  habitat area and the  one dealing                                                               
with the  Aquatic Farming Act.   Chair  McGuire said that  she is                                                               
trying to  interject the legislature  into the process  to review                                                               
the  intention  of the  aforementioned  statutes.   Although  she                                                               
understood that  a process was  in place with  these regulations,                                                               
she  was  disturbed that  the  regulations  were filed  when  the                                                               
committee raised  issues.  There  should've been respect  for the                                                               
legislature  to at  least finish  the hearing  and listen  to the                                                               
concerns  of those  in  Kachemak Bay  whose  livelihoods will  be                                                               
impacted.  Therefore, in spite of  the fact that this process may                                                               
have  been  deemed  moot,  she  wanted  to  continue  the  public                                                               
process.                                                                                                                        
                                                                                                                                
Number 0975                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES remarked  that she  has been  involved with                                                               
regulations  issues  for  nine years  and  it,  the  [regulation]                                                               
system, is a  flawed system that doesn't meet public  input.  She                                                               
mentioned  that the  negotiated rulemaking  law should  have been                                                               
utilized with  this issue.  Representative  James emphasized that                                                               
she is present to protect  habitat, environment and to have clean                                                               
water, air, et  cetera.  However, that  doesn't disallow economic                                                               
development.   There have  to be  jobs to make  a living  in this                                                               
state, and  it has to be  done correctly.  That  was precluded in                                                               
this  case,  which   is  upsetting.    If   the  committee  files                                                               
legislation  to  annul  these regulations,  then  there  will  be                                                               
discussion  regarding [the  intent of  the CHAs  and the  Aquatic                                                               
Farming Act].  She expressed her desire to [file legislation].                                                                  
                                                                                                                                
REPRESENTATIVE JAMES  remarked that the biggest  problem with the                                                               
regulations process is that people  testifying don't know whether                                                               
anyone  is listening.   There  is no  response to  the witnesses.                                                               
Although she  isn't happy with  this situation,  she acknowledged                                                               
that  there  are  always  at   least  two  sides  to  the  story.                                                               
Therefore, she  noted her willingness  to listen to all  sides of                                                               
the story,  which she  felt would be  accomplished when  there is                                                               
legislation before the committee.                                                                                               
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the Joint                                                               
Committee  on   Administrative  Regulation  Review   meeting  was                                                               
adjourned at 4:15 p.m.                                                                                                          

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