Legislature(2013 - 2014)BARNES 124

04/10/2014 08:00 AM House ADMINISTRATIVE REGULATION REVIEW


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08:03:26 AM Start
08:04:06 AM Water Well Logs
09:28:18 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Dept. of Environmental Conservation TELECONFERENCED
Dept. of Natural Resources
- Water Well Logs - 11 AAC 93.140
                    ALASKA STATE LEGISLATURE                                                                                  
           ADMINISTRATIVE REGULATION REVIEW COMMITTEE                                                                         
                         April 10, 2014                                                                                         
                           8:03 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lora Reinbold, Chair                                                                                             
Senator Cathy Giessel, Vice Chair                                                                                               
Representative Mike Hawker                                                                                                      
Representative Geran Tarr                                                                                                       
Senator Gary Stevens                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Hollis French                                                                                                           
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
WATER WELL LOGS                                                                                                                 
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
YASMINE HABASH, Staff                                                                                                           
Senator Mike Dunleavy                                                                                                           
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Introduced the topic of Alaska's water well                                                               
log regulations.                                                                                                                
                                                                                                                                
JAMES ARTHUR SQUYRES                                                                                                            
Certified Public Accountant                                                                                                     
Delta Junction, Alaska                                                                                                          
POSITION STATEMENT: Testified in favor of modifying water well                                                                
log regulations.                                                                                                                
                                                                                                                                
LARRY SWIHART, Owner and Operator                                                                                               
S&S Drilling                                                                                                                    
Palmer, Alaska                                                                                                                  
POSITION STATEMENT: Testified in favor of modifying water well                                                                
log regulations.                                                                                                                
                                                                                                                                
TED SCHACHLE,                                                                                                                   
Alaska Water Well Association                                                                                                   
Big Lake, Alaska                                                                                                                
POSITION STATEMENT:  Testified in  favor of modifying  water well                                                             
log regulations.                                                                                                                
                                                                                                                                
DAN BROTHERTON, Operator                                                                                                        
Arctic Drilling, Inc.                                                                                                           
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Testified in  favor of modifying  water well                                                             
log regulations.                                                                                                                
                                                                                                                                
CHUCK ICE                                                                                                                       
Ice Water Well, Inc.                                                                                                            
Fairbanks, Alaska                                                                                                               
POSITION   STATEMENT:  Testified   that  water   well  logs   are                                                             
proprietary.                                                                                                                    
                                                                                                                                
LEE ICE                                                                                                                         
Ice Water Well, Inc.                                                                                                            
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Testified in  favor of modifying  water well                                                             
log regulations.                                                                                                                
                                                                                                                                
JOHN BONACOR                                                                                                                    
Swan Drilling                                                                                                                   
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT: Testified that  drilling companies should not                                                             
provide well log information to the state.                                                                                      
                                                                                                                                
JEFF ELLISON, Owner                                                                                                             
Blackwell Pump Service and Homer Drilling                                                                                       
Homer, Alaska                                                                                                                   
POSITION  STATEMENT:  Testified  that  water  well  logs  contain                                                             
valuable propriety information.                                                                                                 
                                                                                                                                
BRANDON FLINN                                                                                                                   
Tok, Alaska                                                                                                                     
POSITION STATEMENT: Testified that water  well logs belong to the                                                             
landowner.                                                                                                                      
                                                                                                                                
ALVIN J. BATES                                                                                                                  
Tok, Alaska                                                                                                                     
POSITION STATEMENT: Testified that water  well logs belong to the                                                             
landowner, and regulations will lead to fees and taxes.                                                                         
                                                                                                                                
TERRY BRIGNER JR.                                                                                                               
Tok, Alaska                                                                                                                     
POSITION STATEMENT:  Testified in  favor of modifying  water well                                                             
log regulations.                                                                                                                
                                                                                                                                
CHERISH BRINGER                                                                                                                 
Tok, Alaska                                                                                                                     
POSITION STATEMENT:  Testified in favor of  eliminating the water                                                             
well log regulation.                                                                                                            
                                                                                                                                
CANDY TROUPE                                                                                                                    
Snowshoe Motel                                                                                                                  
Tok, Alaska                                                                                                                     
POSITION STATEMENT:  Testified in  favor of modifying  water well                                                             
log regulations.                                                                                                                
                                                                                                                                
CINDY KOESTLER                                                                                                                  
Tok, Alaska                                                                                                                     
POSITION STATEMENT:  Testified in favor of  eliminating the water                                                             
well log regulation.                                                                                                            
                                                                                                                                
JEFFREY VANZANDT                                                                                                                
Tok, Alaska                                                                                                                     
POSITION STATEMENT:  Testified in favor of  eliminating the water                                                             
well log regulation.                                                                                                            
                                                                                                                                
RHONDA VANZANDT                                                                                                                 
Tok, Alaska                                                                                                                     
POSITION STATEMENT:  Testified in favor of  eliminating the water                                                             
well log regulation.                                                                                                            
                                                                                                                                
ED FOGELS, Deputy Commissioner                                                                                                  
Department of Natural Resources (DNR)                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Explained  the role of DNR  in managing state                                                             
water resources.                                                                                                                
                                                                                                                                
JOHN BAKER, Assistant Attorney General                                                                                          
Natural Resources Section                                                                                                       
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Answered questions regarding water  well log                                                             
regulations.                                                                                                                    
                                                                                                                                
LYNN KENT, Deputy Commissioner                                                                                                  
Department of Environmental Conservation (DEC)                                                                                  
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT: Answered  questions regarding  how DEC  uses                                                             
water well log data.                                                                                                            
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
8:03:26 AM                                                                                                                    
                                                                                                                                
CHAIR LORA  REINBOLD called the Administrative  Regulation Review                                                             
Committee meeting  to order  at 8:03 a.m.   Senators  Geissel and                                                               
Stevens and  Representatives Hawker and Reinbold  were present at                                                               
the call  to order.   Representative Tarr arrived as  the meeting                                                               
was in progress.                                                                                                                
                                                                                                                                
^Water Well Logs                                                                                                                
                        Water Well Logs                                                                                     
                                                                                                                              
8:04:06 AM                                                                                                                    
                                                                                                                                
CHAIR REINBOLD  announced that the  only order of  business would                                                               
be water well  log regulations, and the issue was  brought to the                                                               
committee by Senator Mike Dunleavy.                                                                                             
                                                                                                                                
8:04:23 AM                                                                                                                    
                                                                                                                                
YASMINE  HABASH,  Staff,  Senator  Mike  Dunleavy,  Alaska  State                                                               
Legislature,  noted that  Regulation 11  AAC 93.140  has been  in                                                               
effect since 1977,  and it states that a person  who constructs a                                                               
well shall file  a report within 45 days of  completion with both                                                               
the  property owner  and  the department.    The regulation  then                                                               
lists several  requirements that  must be  included in  the water                                                               
well log.   She  noted that  she would like  to discuss  the last                                                               
part  of  the  regulation,  which  states  [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     (g)  Information required  by  (a) of  this section  is                                                                    
     required  for any  water well  that has  been deepened,                                                                    
     modified, or  abandoned, and for any  water supply well                                                                    
     or   water   well   that  is   used   for   monitoring,                                                                    
     observation,  or aquifer  testing, including  a dry  or                                                                    
     low-yield water well that is not used.                                                                                     
                                                                                                                                
8:06:23 AM                                                                                                                    
                                                                                                                                
JAMES  ARTHUR SQUYRES,  Certified Public  Accountant, said  he is                                                               
opposed to the aforementioned regulation.   He told the committee                                                               
that he has  sailed around the world for over  11 years, visiting                                                               
25 countries,  and what he  saw abroad  made him aware  that what                                                               
makes  the United  States different  is its  constitution.   "The                                                               
oppression  and tyranny  we  have  seen abroad  is  what made  me                                                               
keenly aware of  infringements on our individual  rights that are                                                               
taking place  back here  in the  United States,"  he stated.   He                                                               
said he is  a landowner in an unorganized borough  in Alaska, and                                                               
he  is not  being  paid  to make  this  presentation  or for  the                                                               
research  he has  done.   The well  drillers he  has lined  up to                                                               
speak  today  are an  integral  part  of  his presentation.    He                                                               
proposed that  the regulation  be eliminated  or that  "shall" be                                                               
changed  to  "may".    He  opined  that  the  current  regulation                                                               
overreaches, creating  an onerous and unconstitutional  burden on                                                               
well  drillers  and  land  owners, and  it  violates  Article  1,                                                               
Sections 1, 2, 14, and 22 of the Alaska Constitution.                                                                           
                                                                                                                                
MR.  SQUYRES   explained  that  the  regulation   requires  water                                                               
drillers to  file logs with  the Department of  Natural Resources                                                               
(DNR)  and the  Department  of  Environmental Conservation  (DEC)                                                               
after  drilling private  wells on  private property,  and it  has                                                               
been  in  effect since  1977.    He  said, "Rural  drillers  have                                                               
instinctively  resisted  this regulation  through  nullification,                                                               
citing the  privacy concerns of  individual landowners  and their                                                               
own proprietary  interest in these  well logs that  contribute to                                                               
the economic viability of  their entrepreneurial going concerns."                                                               
He  added  that   citizens  are  becoming  aware   that  this  is                                                               
overreaching, as there no statutory  requirement for private well                                                               
owners  to  turn in  their  water  logs, particularly  for  wells                                                               
drawing less than  500 gallons a day and  not adversely affecting                                                               
others.   He said that over  90 percent of Alaska  wells fit that                                                               
category,  and  DNR  has  not  been  enforcing  this  regulation,                                                               
leading to  the "current  conflicting status  quo."   The statute                                                               
gives the authority to determine  and appropriate water rights to                                                               
all who apply, and there are  many reasons why someone would want                                                               
to race to file for water rights,  he said, but some may not want                                                               
to file due  to unconstitutional elements, and the  problem is in                                                               
the regulation.                                                                                                                 
                                                                                                                                
8:11:41 AM                                                                                                                    
                                                                                                                                
MR. SQUYRES  said when he  was a practicing  CPA he had  to value                                                               
small,  closely  held businesses,  and  there  are many  ways  to                                                               
calculate the fair  market value of a business.   He spoke of the                                                               
"good will" factor and that  well logs can "confiscate good will"                                                               
from rural  well drilling  businesses.  Well  owners may  be less                                                               
interested in filing for water  rights if the nearest neighbor is                                                               
miles down  the road,  he said.   Landowners  can file  for water                                                               
rights at any time on a first-come, first-served basis.                                                                         
                                                                                                                                
8:14:14 AM                                                                                                                    
                                                                                                                                
MR. SQUYRES said  the inherent rights in  the Alaska Constitution                                                               
"has  to  do  with  the   enjoyment  and  rewards  of  their  own                                                               
industry."  Rural  well driller logs make  drillers vulnerable to                                                               
unfair competition  from new entrants  who do not have  to "earn"                                                               
the information  from working in  the field.  The  information is                                                               
on the Internet,  he said.  Rights have to  be exercised, history                                                               
has shown, or  they will be eroded and  trampled by unsympathetic                                                               
bureaucracies  allowed to  run unchecked.     He then  quoted the                                                               
Alaska  Constitution:  all political  power  is  inherent in  the                                                               
people; all government originates with  the people, is founded on                                                               
their  will only;  and, the  right of  the people  to privacy  is                                                               
recognized and shall not be infringed.                                                                                          
                                                                                                                                
MR. SQUYRES  reiterated that well  logs are put on  the Internet,                                                               
except for those  that may have terrorist concerns.   It is clear                                                               
that  well  drillers  and  landowners   have  an  expectation  of                                                               
privacy, he opined.   He spoke of individuals  who voluntary give                                                               
up rights,  and then  quoted the constitution:  The right  of the                                                               
people to be secure in  their persons, houses and other property,                                                               
papers, and effects, against  unreasonable searches and seizures,                                                               
shall not  be violated.   "Papers" would  include well  logs that                                                               
are paid  for by  the landowner,  he stated.   Little  thought is                                                               
given on  how the well logs  can be manipulated or  searched with                                                               
current or  future technology that  may not even  exist; metadata                                                               
may fall into  the wrong hands, he warned.   The people call upon                                                               
the   legislature   to   protect  citizens   from   onerous   and                                                               
overreaching regulations,  he said.   The constitution  says that                                                               
fish,  wildlife,  and waters  are  reserved  for the  people  for                                                               
common use, and  no one wants to deny Alaskans  a drink of water.                                                               
The  regulation  requires  an  application   for  the  use  of  a                                                               
significant  amount of  water, and  500  gallons per  day is  not                                                               
significant, but  DNR and  DEC say  they need  every well  log to                                                               
manage  each and  every drop  of water  in this  state, "yet  the                                                               
statute calls for  them to appropriate only to  those who apply."                                                               
This   is  the   problem   that  leads   to   the  violation   of                                                               
constitutional rights,  he said.   When someone files a  well log                                                               
voluntarily, no  rights are violated, but  when compelled, rights                                                               
are violated.   He stated that this could lead  to extra costs in                                                               
the budget.   Enforcement  action could  lead to  expensive legal                                                               
cases, draining state coffers.  He  said, "No mention was made in                                                               
the   constitution    or   statute   about   the    onerous   and                                                               
unconstitutional  elements discussed  above  in  regards to  this                                                               
regulation."   He  called on  the  committee to  take all  action                                                               
possible to eliminate this old regulation or to modify it.                                                                      
                                                                                                                                
8:21:35 AM                                                                                                                    
                                                                                                                                
CHAIR  REINBOLD said  he had  a  very persuasive  argument.   She                                                               
noted that HB  140 is in the Senate, "which  does cause an agency                                                               
or a  commission or a board  to identify where the  regulation is                                                               
promulgated and also to assist  the impacts, in aggregate, to the                                                               
private sector."                                                                                                                
                                                                                                                                
MR. SQUYRES said he has  spoken with Senators Bishop and Dunleavy                                                               
and Representative Feige, who has been helpful.                                                                                 
                                                                                                                                
REPRESENTATIVE TARR asked if well  logs are provided when land is                                                               
transferred, and if that is a reason to keep the logs.                                                                          
                                                                                                                                
MR. SQUYRES opined that a purchaser would want that information.                                                                
                                                                                                                                
REPRESENTATIVE  TARR asked  if the  state makes  that information                                                               
available to  a buyer.  If  the regulations went away,  how would                                                               
the information be retained?                                                                                                    
                                                                                                                                
MR. SQUYRES suggested  that the seller would  be highly motivated                                                               
to  provide  such  information  to the  bank  to  facilitate  the                                                               
transaction.   He said  things may be  different in  urban areas,                                                               
but applying the regulation to every  square inch of the state is                                                               
going a bit far.                                                                                                                
                                                                                                                                
8:25:31 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TARR  surmised that the well  information would be                                                               
in the hands  of the property owner and then  made available when                                                               
the property is sold.                                                                                                           
                                                                                                                                
MR. SQUYRES agreed.  The landowner owns the information.                                                                        
                                                                                                                                
SENATOR STEVENS asked  if Mr. Squyres said DNR  was not enforcing                                                               
the regulations.                                                                                                                
                                                                                                                                
MR. SQUYRES opined  that it is difficult to go  back and clean up                                                               
onerous  and overreaching  regulations, but  they are  a type  of                                                               
oppression weighing on the shoulders  of landowners, he said.  He                                                               
understands that DNR is not spending state funds to enforce it.                                                                 
                                                                                                                                
8:27:47 AM                                                                                                                    
                                                                                                                                
CHAIR  REINBOLD asked  him  to stay  in touch,  as  she wants  to                                                               
follow this issue.                                                                                                              
                                                                                                                                
LARRY  SWIHART, Owner  and Operator,  S&S Drilling,  said he  has                                                               
worked in the  water well industry for over 30  years, and he has                                                               
always been opposed  to the current well log  regulations.  There                                                               
are proprietary  issues, he stated.   It is unethical to  have to                                                               
give to  his many  competitors information  that he  has gathered                                                               
over  his  years  of  hard  work building  a  customer  base  and                                                               
learning drilling conditions  in various locations.   He said his                                                               
competitors could contact his customers  and undercut his prices.                                                               
He added that when a private  property owner hires his company to                                                               
drill  a water  well, it  should  be the  owner's prerogative  to                                                               
share  or  not   share  information.    He   requested  that  the                                                               
regulation be changed from "will turn  in well logs" to "may turn                                                               
in well logs."   He said this  has been a concern  for quite some                                                               
time, and  he is active in  water well stakeholder meetings.   He                                                               
said the stakeholders  have been threatened that DNR  is going to                                                               
start taking  active measures  against well  drillers who  do not                                                               
turn in logs.                                                                                                                   
                                                                                                                                
8:32:05 AM                                                                                                                    
                                                                                                                                
TED  SCHACHLE, Alaska  Water Well  Association, said  his parents                                                               
came  to Alaska  in 1954  and  started a  drilling business  with                                                               
their 10 children.  He said [well logs]  are personal information                                                               
and belong to  [landowners] and not the state.   For DNR to force                                                               
drillers to turn  the information in is wrong, "and  it erodes my                                                               
rights  and  the private  citizen's  rights."   His  company  has                                                               
worked  hard to  develop  expertise in  certain  locales, and  by                                                               
handing  over well  logs, a  newcomer can  look at  the logs  and                                                               
decide where the  best places to drill are.   Currently, he said,                                                               
he only turns in logs for  commercial wells, and the private well                                                               
logs  remain  with  the  property  owner.    He  asked  that  the                                                               
regulation be  changed to make  it voluntary to submit  well logs                                                               
to the state.                                                                                                                   
                                                                                                                                
8:34:57 AM                                                                                                                    
                                                                                                                                
DAN  BROTHERTON, Operator,  Arctic  Drilling, Inc.,  said that  a                                                               
well log belongs to the landowner.   He noted that California law                                                               
prohibits distributing well completion  reports to anyone but the                                                               
landowner without the  landowner's written consent.   That is the                                                               
right way to do it, he said.                                                                                                    
                                                                                                                                
8:36:33 AM                                                                                                                    
                                                                                                                                
CHUCK  ICE, Ice  Water  Well,  Inc., said  his  company has  been                                                               
drilling [water wells]  since the 1970s, and  well information is                                                               
proprietary.   He said  anyone can come  from anywhere  "and they                                                               
pick up  the well logs  and just walk  in and start  drilling and                                                               
know what they're getting into."   That is his biggest complaint,                                                               
he noted.                                                                                                                       
                                                                                                                                
8:37:16 AM                                                                                                                    
                                                                                                                                
LEE  ICE,  Ice  Water  Well,  Inc., said  his  company  has  been                                                               
involved in  drilling for three  generations, and he  opposes the                                                               
regulation  requiring him  to give  away something  that somebody                                                               
has paid him to  obtain.  [A well log] is  not his information to                                                               
give away freely, and he urged a change.                                                                                        
                                                                                                                                
JOHN  BONACOR,  Swan Drilling,  said  he  is a  third  generation                                                               
driller, and the  state should go to the homeowners  to get their                                                               
private [well log] information.                                                                                                 
                                                                                                                                
8:39:36 AM                                                                                                                    
                                                                                                                                
JEFF ELLISON,  Owner, Blackwell Pump Service  and Homer Drilling,                                                               
said  he has  been in  Homer since  2008 and  he also  owns Water                                                               
Solutions, a water  filter distributer, and he is  a board member                                                               
of Anchor Point Safe Water and  a member of the Alaska Water Well                                                               
Association.   As  soon  as he  arrived in  the  area, it  became                                                               
apparent   how  valuable   well   water  logs   are  in   Alaska,                                                               
particularly in  rural areas.  Drilling  in the Lower 48  is very                                                               
different, because there is basically  one aquifer, he explained,                                                               
so well logs are not as  important.  He purchased Black Well Pump                                                               
Service to  obtain information, not  only the  personal knowledge                                                               
of a company  that has been operating for several  years, but the                                                               
paperwork as  well.  "To turn  something in that is  private like                                                               
that, just isn't right," he  said.  Additionally, gravel and sand                                                               
companies can  look at the logs  to determine the best  places to                                                               
dig a pit, and they should have to pay for that information.                                                                    
                                                                                                                                
8:42:42 AM                                                                                                                    
                                                                                                                                
BRANDON FLINN said that well logs belong to the landowner.                                                                      
                                                                                                                                
ALVIN J.  BATES said that the  people of Tok "are  pretty stirred                                                               
up about this.   We're very upset."  He said  the people know the                                                               
law  is on  books and  that  is has  not been  enforced for  many                                                               
years, but  they feel  strongly in privacy  rights.   The average                                                               
person in  Tok is a  private individual,  and Mr. Bates  does not                                                               
know of  anyone who  uses over  500 gallons  [of water]  per day.                                                               
[The regulations]  could very  well be the  first step  to taxes,                                                               
fees,  and  other  costs  associated  with  well  drilling.    In                                                               
Colorado, he  saw that  people were paying  $5,000 to  $10,000 to                                                               
the state just for the right to  drill a well.  Tok residents are                                                               
largely unemployed in  the winter, wages are  generally low, "and                                                               
we cannot afford  taxes and fees and various other  things, so we                                                               
strongly  encourage  the board  to  make  the changes  that  [Mr.                                                               
Squyres]  requested."   He added  the caveat  that Tok  residents                                                               
"hold  all  of  you  responsible for  your  decisions"  and  will                                                               
consider those  who vote to  harm the  people in the  Interior of                                                               
Alaska.  He  added that there is  a lot of passion  on this issue                                                               
in  Tok  because residents  know  where  this  will lead  in  the                                                               
future-"it will lead to taxes; it  will lead to fees, and it will                                                               
hurt the people of Alaska."                                                                                                     
                                                                                                                                
8:46:41 AM                                                                                                                    
                                                                                                                                
CHAIR  REINBOLD   said  that   regulations  are   promulgated  by                                                               
departments  and boards,  not the  legislature.   The legislature                                                               
has very  little control, but she  is trying to change  that with                                                               
HB 140.   She explained that the departments are  the ones who do                                                               
these regulations, and most people  that she has spoken with have                                                               
no idea that that is the case.                                                                                                  
                                                                                                                                
MR.  BATES stated  that  people  in the  Interior  have to  start                                                               
living within  their budgets.   He said,  "We voted  against that                                                               
bond-that near  billion dollar bond  that just came  through that                                                               
put  us in  the  red,  which was  foolishness.    People need  to                                                               
realize  up there  in  Juneau,  we got  to  start  living in  our                                                               
budget;  we can't  keep  squeezing  us in  the  Interior for  ...                                                               
pretty soon  we'll get to  our last  dollar; where will  we spend                                                               
it? On food or on taxes and fees and regulatory issues?"                                                                        
                                                                                                                                
8:48:57 AM                                                                                                                    
                                                                                                                                
CHAIR REINBOLD  thanked the  callers, "because  if you  want your                                                               
government to  leave you alone,  you can't leave  your government                                                               
alone."                                                                                                                         
                                                                                                                                
TERRY BRIGNER JR.  noted that the [well log]  regulation needs to                                                               
be eliminated  or changed,  as suggested by  [Mr. Squyres].   His                                                               
primary  concern  is privacy,  and  there  is a  verbal  contract                                                               
between  a  well driller  and  the  property owner  with  implied                                                               
privacy.   As a business owner,  he knows that trust  between him                                                               
and his  clientele is important.   To be forced to  give out well                                                               
logs is a breach  of that trust, he said, and  it could result in                                                               
a business owner going out of business.                                                                                         
                                                                                                                                
8:50:58 AM                                                                                                                    
                                                                                                                                
CHERISH BRINGER said  she and her family are  landowners and this                                                               
is  directly affecting  them.   She said  she does  not want  her                                                               
children to be  worried about being taxed out of  their land.  As                                                               
Americans, "we  look at our  right to  freedom."  There  are many                                                               
countries  that do  not have  freedom, "and  that's why  Alaskans                                                               
live here."   It is nobody else's business where  her well is and                                                               
how much of the  resource she uses.  "That is all  up to me," she                                                               
opined.  The [water well  log] regulation is unconstitutional and                                                               
should be eliminated.                                                                                                           
                                                                                                                                
8:52:41 AM                                                                                                                    
                                                                                                                                
CANDY  TROUPE, Snowshoe  Motel, said  she is  in compliance  with                                                               
DNR, but believes the regulation  should be changed because it is                                                               
an infringement upon her rights.                                                                                                
                                                                                                                                
CINDY  KOESTLER   said  [water  well  log   regulations]  are  an                                                               
infringement on her constitutional rights.   She said, "We do not                                                               
need more people  in here trying to  run us down.   We are trying                                                               
to survive in  Tok; we pay for  these wells to be put  in; we are                                                               
not going to  pay for them to be guarded  by any affiliation with                                                               
the  federal government."   She  noted that  this is  an election                                                               
year, and the people of Tok are  going to do what is best for Tok                                                               
and Alaska.                                                                                                                     
                                                                                                                                
8:54:26 AM                                                                                                                    
                                                                                                                                
JEFFREY VANZANDT said this law  needs to be repealed, because the                                                               
Interior is suffering from overregulation.   The legislature does                                                               
not make  these [regulations] but  it holds the purse  strings to                                                               
DNR, and if it cannot stop  this, his representative will not get                                                               
his vote.   He said  he paid thousands of  dollars to put  in his                                                               
well, and  he expects his  information to  be private.   Over 100                                                               
families have  left the Tok area  in the last two  years "because                                                               
of  overburden  and  overpriced  fuel,  wood,  and  the  cost  of                                                               
living."  He said  that this is just one more  nail in the coffin                                                               
for the  people who live  in rural  Alaska.  His  legislators are                                                               
Representative  Foster and  Senator  Olson, and  if  this is  not                                                               
repealed, they need not ask him for his vote, he stated.                                                                        
                                                                                                                                
8:56:32 AM                                                                                                                    
                                                                                                                                
RHONDA VANZANDT said  that the regulation has to  be repealed for                                                               
the  people of  Tok.   "It is  another regulation  on top  of the                                                               
people and we don't want it."                                                                                                   
                                                                                                                                
8:58:10 AM                                                                                                                    
                                                                                                                                
ED FOGELS,  Deputy Commissioner, Department of  Natural Resources                                                               
(DNR),  said DNR  is mandated  to manage  the water  resources of                                                               
state as a common public resource  for the good of all the people                                                               
of Alaska.  His department manages  the quantity of water to make                                                               
sure that  when somebody drills  a well  that there is  plenty of                                                               
water  to   go  around,  and  the   Department  of  Environmental                                                               
Conservation  (DEC)  manages  the  quality of  ground  water,  he                                                               
added.    He sees two  issues:  The  first is whether or  not the                                                               
[water  well  log] regulation  is  actually  legal, and  DNR  has                                                               
operated under the assumption that it  is.  In fact, it is rooted                                                               
soundly in the constitution and  in statute, and a state attorney                                                               
is on line if people want  more information.  The second issue is                                                               
whether or not "this  is the right thing to do,"  and that is the                                                               
bigger issue he believes.   "We need to explain to  you why it is                                                               
that  we  desperately  need  information   on  the  ground  water                                                               
resources of the state," he stated.   It is a tough job to manage                                                               
water  resources, especially  in  an area  where populations  are                                                               
growing and  demands are  increasing.   He said  he is  a private                                                               
property owner in Anchorage, and he  went through a lot of public                                                               
meetings on Sand Lake area water  issues where a key to resolving                                                               
many  debates was  the information  on the  groundwater that  was                                                               
collected through  water well logs.   Another question is  if DNR                                                               
is  administering  the  right  process, and  he  noted  that  the                                                               
regulation  is  very difficult  to  enforce,  because people  are                                                               
drilling wells  all over  the state,  and DNR  does not  have the                                                               
resources to  chase everyone down,  and "we don't intend  to that                                                               
at   this  point."     Currently,   DNR  is   working  with   the                                                               
stakeholders' group on  this issue to see what it  is doing right                                                               
and what it is doing wrong,  and this [water well log] regulation                                                               
is at the forefront of those discussions, he explained.                                                                         
                                                                                                                                
9:01:57 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  TARR  asked how  people  are  supposed to  submit                                                               
[logs]; people  have said the  process is onerous, and  she asked                                                               
if it could be refined to be more user friendly.                                                                                
                                                                                                                                
9:02:38 AM                                                                                                                    
                                                                                                                                
CHAIR REINBOLD asked which statute the regulation comes from.                                                                   
                                                                                                                                
JOHN  BAKER,   Assistant  Attorney  General,   Natural  Resources                                                               
Section,  Department of  Law, said  the statutory  basis for  the                                                               
water  well  log  regulation  comes  from  AS  46.15.010  and  AS                                                               
46.15.020.  The first statute is  a broad grant of authority from                                                               
the legislature to  DNR to determine and  adjudicate water rights                                                               
in Alaska and  its appropriation and distribution.   So, he said,                                                               
DNR  is  to  determine  water   rights  and  their  priority  for                                                               
individuals using more  than 500 gallons per day  and to quantify                                                               
that as  a water  or property  right (and  get a  priority date).                                                               
Additionally,  the broader  sense  of  appropriation (defined  in                                                               
Title 46 as  to divert, impound, or withdraw a  quantity of water                                                               
from any  source of water for  beneficial use or to  reserve it),                                                               
includes withdrawing 500  gallons per day or less  through a well                                                               
without getting water rights.  So  those uses are to be regulated                                                               
by DNR,  he said.  The  second statute requires and  empowers DNR                                                               
to  do what  is  necessary to  carry out  the  objectives of  the                                                               
Alaska  Water Use  Act, he  explained.   It is  a broad  grant of                                                               
authority, he  noted; statutes  like this are  not going  to have                                                               
the detail  that are contained  in regulations.  The  function of                                                               
regulations,  as   set  out   under  the   Alaska  Administrative                                                               
Procedure Act, is to more  specifically implement the statutes in                                                               
a way that is reasonably necessary  and consistent.  He said that                                                               
another  statute, AS  41.08.020(b)(4), requires  DNR to  know the                                                               
location, quantity,  and quality  of water resources  by aquifer,                                                               
which  was originally  required of  the Department  of Geological                                                               
and Geophysical [Surveys], but  by administrative delegation, the                                                               
Water Section of DNR implements that requirement.                                                                               
                                                                                                                                
9:07:19 AM                                                                                                                    
                                                                                                                                
CHAIR REINBOLD said  it is unimaginable how much water  is in the                                                               
state, and  it would take many  people to regulate it.   Alaskans                                                               
are  overregulated,  and  she  asked if  there  is  a  difference                                                               
between public  and private property.   If a  private [landowner]                                                               
paid for a  well, she asked if  the state should pick  up the fee                                                               
for getting this proprietary information.                                                                                       
                                                                                                                                
MR.  BAKER said  fees  are  a policy  call  for the  legislature.                                                               
Regarding  a   legal  distinction  between  private   and  public                                                               
resources,  it  is  a  fairly  nuanced  question.    There  is  a                                                               
perception issue here.   Under the Alaska  Constitution, water is                                                               
considered a  common use  resource, and a  well owner  on private                                                               
property  is   tapping  into  a  public   resource-a  common  use                                                               
resource.   The understanding of  DNR at the time  the regulation                                                               
was  enacted,  was  that  the  collection  of  this  data  was  a                                                               
condition of getting the public resource.   The water itself is a                                                               
public resource, even if the  aquifer is underneath private land,                                                               
he explained.  The justification  for the regulation is to obtain                                                               
data necessary  to continue  to manage the  public resource.   If                                                               
there are concerns  about privacy or confidentiality  of the data                                                               
that is collected, there  is another statute, 38.05.035(a)(8)(C),                                                               
which allows an  individual to request that  DNR keep geological,                                                               
geophysical, and  engineering data  confidential.  Well  log data                                                               
is hydrological information  and would be considered  a subset of                                                               
geological data, and  the statute provides a  mechanism such that                                                               
individuals   can  request   that   DNR   keep  the   information                                                               
confidential.    The  department  does  not  have  to  make  that                                                               
information  available  to everyone,  he  explained,  but it  can                                                               
continue to use it to manage the water resource.                                                                                
                                                                                                                                
9:11:18 AM                                                                                                                    
                                                                                                                                
CHAIR REINBOLD expressed  her belief that there are  way too many                                                               
laws and lawyers.  "These people  just want to drink water and to                                                               
survive and not  have the government on their  back," she stated.                                                               
[Drillers] do  not want  their competitors to  see data  that the                                                               
government really  does not need  to have.   It is  private land,                                                               
but  if  it  is  not  a   big,  big  city,  "don't  you  see  the                                                               
constitutional privacy issues for the people?"                                                                                  
                                                                                                                                
MR. BAKER said that privacy  depends upon which resource is being                                                               
considered.  He  said he is not aware of  an Alaska court finding                                                               
a  violation of  a right  to  privacy in  an analogous  situation                                                               
where public resource data is requested.   The way the law is set                                                               
up now, the collection of that  data is a condition of being able                                                               
to access  the resource.  "I  can't tell the committee  that I am                                                               
aware of  any similar  situation where an  Alaska court  has ever                                                               
found that to  rise to level of invasion of  privacy," he stated.                                                               
When  there is  a valid  regulation on  the books  that puts  all                                                               
members of the  public on notice, just  like hunting regulations,                                                               
it  advises people  upfront  that  if they  want  to access  that                                                               
public resource,  providing the well  log data is a  condition of                                                               
doing that.  He  said it is a policy question  as to whether that                                                               
information  is necessary,  and DNR  and DEC  can speak  to that.                                                               
Again, the  aquifer is a public  resource, but Title 38  allows a                                                               
homeowner and,  probably, the  well driller  to request  that the                                                               
information   be  kept   confidential   and   not  available   to                                                               
competitors.                                                                                                                    
                                                                                                                                
9:14:26 AM                                                                                                                    
                                                                                                                                
CHAIR REINBOLD  said a  statute supersedes  a regulation  and the                                                               
constitution  supersedes a  statute, so  these people  have valid                                                               
concerns.   She asked  Mr. Baker  if he is  willing to  work with                                                               
department to change "shall" to "may".                                                                                          
                                                                                                                                
MR. BAKER said  that if a state agency changes  a regulation, the                                                               
Department of  Law will assist  as directed by  statutory duties,                                                               
and whether or  not to make that change would  be policy question                                                               
beyond the scope of his office.                                                                                                 
                                                                                                                                
CHAIR  REINBOLD  said  she  wants  the  privately  paid-for  data                                                               
protected and she hopes DNR is willing to work with her.                                                                        
                                                                                                                                
9:15:27 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HAWKER   suggested  that   Mr.  Baker   meant  to                                                               
reference AS 38.05.035(a)(9)(c).                                                                                                
                                                                                                                                
MR. BAKER  said AS  38.05.035(a)(8)(c) refers  to confidentiality                                                               
of certain records.                                                                                                             
                                                                                                                                
REPRESENTATIVE  TARR asked  about  sharing geologic  information,                                                               
since   drilling   on   someone's   land   can   impact   others.                                                               
Additionally,   contamination   in   one   well   can   lead   to                                                               
contamination in other  wells.  She asked if  that information is                                                               
shared  with  individuals  as  a  way  help  understand  why  the                                                               
information  is necessary.   She  said she  sees it  as a  way to                                                               
protect landowners by preventing them  from being impacted by the                                                               
activities  of  someone else.    She  noted  a situation  on  the                                                               
hillside,  where people  were  building homes  and  there was  no                                                               
water.   It seems like  log information is really  necessary, and                                                               
it  is  difficult  for  her  to get  around  that,  but  she  can                                                               
appreciate that some people would  want to keep their information                                                               
private.    She  suggested  that  communication  about  what  was                                                               
happening underground is  a way to protect  landowners, and maybe                                                               
that could help resolve some of their concerns.                                                                                 
                                                                                                                                
MR. FOGELS agreed with Representative Tarr.   That is part of the                                                               
discussion in the stakeholder groups.   The goal of DNR is not to                                                               
regulate, but to make sure that  Alaskans have plenty of water to                                                               
drink.   That  is  the only  reason  this is  even  an issue,  he                                                               
stated.   He  said he  has  personal experience  because a  large                                                               
subdivision was going  to be in some of the  aquifers next to his                                                               
well,  and the  only reason  he  felt comfort  with the  proposed                                                               
construction is  that he saw  good data on  the aquifer.   "If we                                                               
don't have the data, we  can't manage this resource properly-it's                                                               
as simple as  that."  He added that there  are tools available to                                                               
address  confidentiality and  DNR  is willing  to  work with  the                                                               
committee to  figure out  a better  way to  do business,  but the                                                               
bottom line is that DNR needs that critical information.                                                                        
                                                                                                                                
9:19:53 AM                                                                                                                    
                                                                                                                                
CHAIR  REINBOLD said  she could  agree  when there  is a  limited                                                               
amount of  water, but in areas  where [the quantity of  water] is                                                               
not an  issue, it  seems like  the government  is doing  stuff it                                                               
does not  need to be  doing.  It  is paid  for by someone,  it is                                                               
competitive  data, and  it  completely  goes against  capitalism,                                                               
freedom,  and the  constitution.   At a  minimum, the  regulation                                                               
should become a "may" instead of a "shall," she said.                                                                           
                                                                                                                                
9:21:28 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HAWKER said that water  rights are a huge issue in                                                               
his district,  and one would think  there is a lot  of water, but                                                               
there is not.  There  are neighborhoods where wells cannot refill                                                               
from just running a shower, and  it is caused by overbuilding and                                                               
increasing density  in era prior  to these regulations.   He said                                                               
that around  1983, everyone filed  for water rights when  a large                                                               
golf course  was being built,  as people were afraid  there would                                                               
not  be  enough  water  in  the  aquifer  for  basic  residential                                                               
purposes.   He suggested that there  is a checkbox to  keep water                                                               
data confidential.   He said there were those that  said they own                                                               
the  data,  it  is  proprietary,  and it  is  not  anyone  else's                                                               
business, but it  is-it is not just the  individual landowner, it                                                               
is  what we  are doing  to  our neighbors.   In  his district  he                                                               
believes that the state needs  to maintain that information as we                                                               
are  allocating  a  scarce  resource.   "We  need  to  have  that                                                               
information available as we make these judgments," he added.                                                                    
                                                                                                                                
9:23:58 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TARR  asked if  DEC needs  the log  information to                                                               
manage water quality.                                                                                                           
                                                                                                                                
9:24:16 AM                                                                                                                    
                                                                                                                                
LYNN  KENT,  Deputy  Commissioner,  Department  of  Environmental                                                               
Conservation,   said  DEC   needs   and  uses   water  well   log                                                               
information.   It does not  directly regulate private  wells, but                                                               
DEC  regulates  onsite septic  systems  and  their distance  from                                                               
private drinking water wells.  A  neighbor cannot put in a sewage                                                               
system  right  beside  a  well   that  may  contaminate  it,  she                                                               
explained.  Well  logs are used in the  contaminated sites arena,                                                               
and  there are  many  sites contaminated  with  oil or  hazardous                                                               
substances  that  affect  ground  water, and  DEC  relies  pretty                                                               
heavily on  both private  and public well  logs to  determine the                                                               
depth to  ground water,  flow rates, direction  of flow,  and who                                                               
might  be  at   risk  of  drinking  contaminated   water.    That                                                               
information is absolutely critical  to protect public health, she                                                               
explained.  She gave the example  of relying on private well logs                                                               
to  track  the sulfolane  plume  emanating  from the  North  Pole                                                               
refinery  right now;  the data  provides  initial information  on                                                               
what wells might be contaminated.                                                                                               
                                                                                                                                
9:26:10 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   HAWKER  noted   his  personal   experience  that                                                               
validates Ms.  Kent's testimony and  said his neighbor  drilled a                                                               
well right next  to his septic field.  The  neighbor had problems                                                               
and then the high costs of drilling another well, he stated.                                                                    
                                                                                                                                
CHAIR REINBOLD  said that public  testimony will remain  open and                                                               
she  wants to  work with  DNR on  protecting private  data.   She                                                               
questioned how  much the government  should be involved  "way out                                                               
in the middle of nowhere" where water is a plentiful resource.                                                                  
                                                                                                                                
9:28:18 AM                                                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There  being  no  further  business  before  the  committee,  the                                                               
Administrative Regulation Review  Committee meeting was adjourned                                                               
at 9:28 a.m.                                                                                                                    

Document Name Date/Time Subjects