Legislature(2009 - 2010)HOUSE FINANCE 519
01/26/2010 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Overview on Engangered Species Act | |
| Start | |
| Overview on Engangered Species Act | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
January 26, 2010
1:36 p.m.
1:36:51 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 1:36 p.m.
MEMBERS PRESENT
Representative Mike Hawker, Co-Chair
Representative Bill Stoltze, Co-Chair
Representative Bill Thomas Jr., Vice-Chair
Representative Allan Austerman
Representative Mike Doogan
Representative Anna Fairclough
Representative Neal Foster
Representative Les Gara
Representative Reggie Joule
Representative Mike Kelly
Representative Woodie Salmon
MEMBERS ABSENT
None.
ALSO PRESENT
Representative Lindsey Holmes, Dan Sullivan, Attorney
General, Department of Law; Doug Vincent-Lang, Special
Projects Coordinator, Department of Fish and Game; Brad
Meyen, Staff Attorney, Department of Law; Taqulik Hepa,
Director, Department of Wildlife Management, North Slope
Borough; Andrew Mack, Special Assistant to the Mayor, North
Slope Borough
PRESENT VIA TELECONFERENCE
George Vakalis, Manager, Municipality of Anchorage;
1:36:16 PM
SUMMARY
^OVERVIEW ON ENGANGERED SPECIES ACT
1:38:14 PM
Co-Chair Stoltze discussed housekeeping.
DAN SULLIVAN, ATTORNEY GENERAL, DEPARTMENT OF LAW, testified
that cooperation and mutual understanding between the
executive and legislative branches was an important aspect
of the state's overall strategy concerning the Endangered
Species Act (ESA). He discussed the agenda to be covered in
the meeting and introduced his support staff.
1:39:54 PM
Mr. Sullivan stated that the Department of Law has four main
objectives:
· Protecting Alaskan's safety, physical and financial
wellbeing.
· Creating the conditions for economic growth and
responsible development of natural resources.
· Protecting the fiscal integrity of the state.
· Promoting and defending good governance.
Mr. Sullivan continued. He explained that for DOL and other
agencies, ESA related work was important in creating
economic growth and responsible development. The department
has witnessed an enclave of ESA petitions that could
threaten future economic opportunity, economic development,
and natural resource development in the state. Certain
environmental groups use the ESA to impede development in
large areas of the state without regard to reliable
scientific research, actual benefit to the species, or the
economic effects on residents. The department contends that
the state can both responsibly develop resources and create
economic opportunity, while protecting endangered and non-
endangered species.
1:41:35 PM
Mr. Sullivan believed that the management of the Polar Bear
on the North Slope was an ideal example of successful
coexistence. He felt that state officials had a
constitutional duty to drive economic development, while
simultaneously protecting wildlife. To address the
challenge, the department has created a five part plan.
First, action would be taken to prevent unwarranted listings
of species in Alaska. Several elements compose this action:
· Litigation to challenge unwarranted listings.
· Intervene when necessary to protect the
interest of the state.
· Undertake pre-listing agreements, such as;
candidate conservation plans and other
conservation agreements.
· Focus on research and monitoring of scientific
data.
Mr. Sullivan continued. Secondly, the department would work
to deepen cooperation and information exchange with the
federal government. He cited a recent agreement with the
National Marine Fisheries Service (NMFS), as an example. He
added that the federal government does not consistently
reciprocate the department's request for information
exchange. For example, the federal government had not asked
either the Department of Fish and Game (DF&G) or the
Department of Law for an opinion on the issue of critical
habitat for the Polar Bear. Third, the department would work
to shape habitat designation and a recovery plan for species
that have been deemed endangered. The department has
encouraged the federal government to use the 4D rules, which
are an ESA mechanism for protecting threatened, as opposed
to endangered, species. The fourth part of the strategy was
to work to move to delist species from the endangered list
when appropriate. For example, the department believes that
the Easter Stellar Sea Lion has met every objective in the
federal recovery plan and should be considered for
delisting. Finally, the fifth part of the plan was to engage
in public education on ESA issues, and to invite a dialogue
nationwide. A letter had been drafted for distribution to
the 49 other Attorney General's in the country, that listed
the state's concerns in regard to ESAs, and included the
reminder that the issue of ESAs could have repercussions
nationwide.
1:46:15 PM
Mr. Sullivan informed the committee that the issue would be
presented in March 2010, to the National Association of
Attorney Generals. Currently, general fund dollars allocated
to the Department of Fish and Game furnish the department
with one attorney to focus solely on ESAs. The budget
includes the request of $200,000, to hire another ESA
attorney, and an additional $800,000 to continue to employ
outside council. The Department of Fish and Game had
requested $386,000, in increments, of general funds, and
$450,000 in federal receipt authority, to focus on ESA
issues and ESA related research.
Co-Chair Stoltze wondered if the department could create a
chart illustrating the spending risk versus the benefit for
the state. Mr. Sullivan replied that the department would
work to provide any information requested by the committee.
1:49:51 PM
Mr. Sullivan continued. The department believed that the
costs associated with listing a species under an ESA,
contribute to economic uncertainty throughout the state.
Also, due to the ESA listing, the ultimate decision making
authority concerning in-state species was transferred to
federal courts. It was illegal to kill, capture, or
otherwise harm the species on purpose or accidentally once
it was listed. Every federal funded permitted or licensed
activity must undergo a consultation process with federal
agencies to determine whether the proposed activity would
jeopardize continued existence. During the consultation
process certain environmental groups undertake litigation
which the department believed increased the cost of doing
business in Alaska, and bred uncertainty among possible
investors.
1:51:41 PM
Mr. Sullivan discussed the legal theory concerning the Polar
Bear and Ribbon Seal debates. The legal theory stated that
climate change was altering the habitat for species in the
arctic environment. Although the population of the species
might be increasing, or at a high historic level, species
were being listed because environmental groups charged that
the changes in habitat could put species at risk in the
future. He warned that the employment of that legal theory
could lead to unnecessary species listings. The federal
government had rejected the theory in the Ribbon Seal case
and the department had requested to intervene and support
the decision. The Federal Fish and Wildlife Service and
National Marine Fisheries have chosen opposing sides on the
issue.
Mr. Sullivan offered another example of the misuse of legal
climate change theory in Montana, which had been acceptable
to the federal government, but that the department believed
was speculative.
1:53:51 PM
Mr. Sullivan said environmentalists argued that Grizzly
Bears should not be delisted because the White Bark Pine
Nut, which the Grizzly Bear eats, could be affected by
climate change which would put the bears at risk. The
department believed that this was an improper reading of the
ESA and could contribute to unnecessary additional listings.
He gave more examples of the misuse of ESA by environmental
groups.
1:55:47 PM
Mr. Sullivan said that the environmental groups often have
considerable financial backing and aggressive tactics. He
mentioned the importance of departmental intervention.
Environmental groups claim that they are acting in the
public interest of Alaska; the department does not. The
department protects wildlife, as well as economic growth and
resource development opportunities. He contended that it was
important that the department intervene when the federal
government and environmental groups have settlement
discussions. He shared that the department had requested to
intervene in the Ribbon Seal case, but had not received a
reply. The case was brought by an environmental group out of
Arizona, and was heard in a federal court in San Francisco.
The state's intervention in the case was currently being
opposed by the environmental group.
1:59:05 PM
Mr. Sullivan stressed that the conservation of genuinely
endangered species was important to DOL and DF&G. The
department maintained opposition against unwarranted
listings based on speculation, overbroad critical habitat
determinations that did not take Alaska's economic interests
into account, misuse of ESA to shut down resource
development, and the use of ESA to regulate climate change.
DOUG VINCENT-LANG, SPECIAL PROJECTS COORDINATOR, DEPARTMENT
OF FISH AND GAME, informed the committee that the state did
not question the protection of definite endangered species,
especially when the endangerment was a result of human
activity. He cited North Pacific Right Wales as a genuine
ESA listing. The department had concerns over the recent
application of ESA in the state. Specific areas of concern
include how far into the future species viability can be
accurately predicted; 10 years, 50 years, 100 years, or 300
years. Rarely do DF&G biologists assess species viability
beyond 10 years. The department had seen an increased
reliance on models being used to predict out 100 to 300
years, as was the case of Beluga Whales in Cook Inlet. The
department had asked what the reasonable level of risk to be
considered before listing a species are; 1 percent, 10
percent, 20 percent, or 50 percent, and should the risk
levels increase as longer timeframes are used. He said that
in Cook Inlet, the decision was made to list the Beluga
Whale based on a probability of extinction greater than 1
percent, and at time periods of 100 to 300 years. At the 50
year time horizon, the probability of extinction was less
that 1 percent, which meant that the wale had a 99 percent
chance of not going extinct within 50 years. The department
questioned how critical habitat should be defined. Should it
represent the occupied area as purposed for critical
habitat, independent of the primary threats that the species
faces, or should it represent a more narrowly defined
geography, that focused on addressing the primary threats
facing the species. For instance, with the Polar Bear, the
ESA regarded the entire occupied range as critical habitat,
irrespective of the fact that the primary threat, as
identified in the listing decision, was loss of sea ice. The
ESA citing that refuge from Killer Whales was the primary
threat to Northern Sea Otters was an example of a more
narrowly defined geography of critical habitat. He expressed
concern for the definition of recovery objectives, should
they be defined to remove the risk of extinction, or to
recover the species. He said that there were currently
45,000 to 60,000 Stellar Sea Lions in Western Alaska and
that it could be argued that the risk of extinction had been
removed. He added that another argument was that the
population had not been sufficiently recovered to the
historic population number of 103,000. He suggested that
replenishing the species back to 103,000 might be impossible
given current ocean conditions.
Mr. Vincent-Lang stated that DF&G was currently tasked with
coordinating the states ESA related activates. The base,
unrestricted, general fund budget provided funding for a
state attorney, and two state biologists. Given the increase
in listings and proposals for listings, the department was
requesting $236,000, in general funds dollars, to improve
the department's ability to coordinate ESA activities and
respond to increased listings. The funds would also be used
to work with other states facing similar concerns regarding
recent implementation of the ESA.
2:04:50 PM
Mr. Vincent-Lang described the species that the department
had involvement with under ESAs:
· Polar Bears
· Cook Inlet Beluga Whales
· Pacific Walrus: The species has been petitioned by
the environmental groups for listing under the ESA
and is currently under a 12 month review by the U.S.
Fish and Wildlife Service.
· Southeast Alaska Herring: Attempts to list began
with a proposal by a local environmental group to
designate Lynn Canal Herring as a distinct
population segment. The state successfully provided
comments that stated the Lynn Canal Herring were not
a distinct population segment. The National Marine
Fisheries Service expanded the listing to include
all Southeast Alaskan Herring.
· Ribbon, Spotted, Bearded and Ring Seals: All are in
various staged of the ESA process. The Ribbon Seal
was recently cited to not warrant a listing, and is
in litigation. The Spotted Seal was also cited as
not warranting a listing, litigation is expected.
The Bearded and Ring Seals are both undergoing a 12
month status review by the National Marine Fisheries
Service.
· Kittlitz's Murrelet
· Marbled Murrelets
· Northern Sea Otters
· Red Knots
· Goss Hawks
· Spectacle Eiders
· Stellar Eiders
· Stellar Sea Lions
· Yellow Billed Loons: Recently decided by the Fish
and Wildlife Service to be warranted for listing,
but precluded due to agency resources.
2:07:37 PM
Mr. Vincent-Lang stated that the priority was to help
residents of Alaska navigate the ESA. Under Section 6 of the
ESA, the department had entered into agreements with the
Fish and Wildlife Service, and the National Marine Fisheries
Service, in order to collect more information on the needs
of at-risk and enlisted species. An increment had been
identified in the budget that would provide $150,000 of
general funds as a match to $450,000 in federal dollars that
would enable the department to improve understanding of
certain marine mammal issues. The department was also
conducting research using existing Section 6 monies to
examine species listed under the United States Fish and
Wildlife Service Endangered Species Program. Finally the
department was examining ways to leverage existing funds in
order to collect the information necessary to delist certain
species.
Representative Gara asked about the hourly rates paid to
outside counsel hired to litigate on the states behalf.
BRAD MEYEN, STAFF ATTORNEY, DEPARTMENT OF LAW, replied (I
think) recalled that the range was from $230 to $480 per
hour. He added that the work was allocated at the most
efficient level possible. Mr. Sullivan interjected that
outside council brought additional expertise. He added that
retaining outside counsel was advantageous when cases were
litigated out of state. He stated that funding for an
additional expert attorney within the DOL had been
requested.
Representative Gara thought that in-state counsel could do
the work for a significantly lower cost to the state. If the
state paid an outside attorney $350 per hour, full time for
one year, it would result in a total cost of $700,000. The
same attorney, in-state, would cost $200,000. He believed
such spending was wasteful and hoped that the department
would work to eliminate the unnecessary.
2:13:04 PM
Representative Gara believed that qualified attorneys could
be found at the Attorney General's office, which would
negate the need for outside counsel. Mr. Sullivan agreed
that DOL had first-rate attorneys working for salaries that
did not match the private sector. He maintained that the
combination of outside and in-state expertise was best when
litigating ESA cases.
Representative Gara understood the political pressure of
hiring outside rather than creating a new state employee
position. He hoped that DOL could overcome the system
prejudice and work to create new positions, rather than
hiring out-of-state. He hoped that, in cases where the state
acts as an Amicus curiae; a phrase that literally means
"friend of the court", someone who was not a party to the
litigation, but who believes that the court's decision may
affect its interest, that the motivation was sincere, and
not to "put on a show".
2:15:48 PM
Mr. Sullivan rebutted that the state had not been involved
enough on a federal level. He reminded the committee that
the state intervened in the litigation involving the
Kensington Mine. Had the state not applied for certiorari,
and taken the case to the Supreme Court, the mine would have
been shut down. He asserted that when state territory and
jobs were at stake, as was the risk in most ESA cases, it
was necessary for the state to become aggressively involved.
2:18:35 PM
Vice-Chair Thomas commented that he felt it was important
that the department gather its own information on herring
stocks to compare and contrast with research gathered by the
National Oceanic and Atmospheric Administration (NOAA) and
NMFS. Mr. Vincent-Lang replied that the department was
working with NMFS as it went through its 12 month status
review. The department had a research program and management
plans in place and considered itself the managers of
Southeast Alaskan herring. Herring stocks fluctuate and
migrate over time. He felt that the most informative
information was available in order to make the decision as
to list or not list the species.
2:22:03 PM
Vice-Chair Thomas was interested to see how much the
department had budgeted for herring research.
2:22:28 PM
Mr. Vincent-Lang responded that the department often differs
with other agencies as to whether or not a species should be
listed. He said that the department would challenge
information that it believed had been misinterpreted, and
any ruling made as a result of the interpretation, but
providing the information to the agencies was the main
objective.
2:25:52 PM
TAQULIK HEPA, DIRECTOR, DEPARTMENT OF WILDLIFE MANAGEMENT,
NORTH SLOPE BOROUGH, read from a prepared document (copy on
file):
Thank you, Mr. Chairman and members of the Committee.
I appreciate this opportunity to speak to you today on
behalf of the North Slope Borough and Mayor Edward
Itta. I would like to share our views on the listing of
the polar bear and other species under the terms of the
Endangered Species Act and its effects on our local
government, our communities and our subsistence hunting
practices.
The borough has been involved in the management of
polar bears on a daily basis since 1988, when Alaskan
and Canadian subsistence users established the
Inuvialuit-Inupiat Polar Bear Management Agreement.
Since then, Native hunters have managed the aboriginal
harvest of polar bears along the Arctic coast based on
annual quotas recommended by polar bear scientists and
the traditional knowledge of experienced Inuit hunters.
This co-management program has emphasized protection of
denning bears, females and cubs, and it relies on
continuous harvest monitoring. As a result, the polar
bear take has remained below established quota levels
on average for the past 20 years. The North Slope
Borough has embraced this conservation effort and
continues to do so, because we care about the polar
bear as a resident Arctic species and we consider it
essential to the cultural and nutritional wellbeing of
our people.
But hunting is not the primary interaction we have with
polar bears. As the human population increases on the
North Slope and polar bears spend more time onshore
because of receding sea ice, the borough has found it
necessary to establish a polar bear deterrence program
for the protection of both bears and people. With
authorization from the U.S. Fish & Wildlife Service,
our Department of Wildlife Management operates polar
bear patrols to prevent human/bear encounters in the
coastal communities of Kaktovik, Nuiqsut, Barrow,
Wainwright, Point Lay and Point Hope. These patrols
require staff, vehicles and deterrence equipment, and
the borough has always been expected to cover the
costs, despite the federal responsibility for polar
bear protection.
So my first point is that if the federal government is
concerned about polar bears, they should talk to us.
North Slope people have a subsistence interest in the
conservation of polar bears; we have centuries of
traditional knowledge about the habits and health of
the polar bear population; and the North Slope Borough
has done more in recent decades to protect the species
than any other governmental entity. We know how to
manage the interaction of polar bears and people to
limit harm to the bears while protecting the safety of
a growing North Slope population. And I guess were
wondering why that doesnt seem to count for anything
when it comes to setting policy on polar bears.
2:28:07 PM
The North Slope Borough is very troubled about the
expanding application of the Endangered Species Act as
a way to protect polar bears and other listed species.
The blunt force approach of the ESA is likely to have
severe implications on our residents and communities
in terms of our continuing efforts to manage wildlife,
our subsistence hunting practices (including such basic
activities as coastal travel by snow machine or boat),
and even routine infrastructure development.
Our concern is not only based on the sweeping nature of
the ESA, but also on our recent experience with the
U.S. Fish & Wildlife Service. In late 2008 in an effort
to conserve Stellars Eiders, the North Slope Borough
hammered out a MOA with the Service setting local
conservation measures in place. Our hope was that the
Service would focus on the biological needs of the
species, outreach, and educational efforts.
Unfortunately, the result was a season of intensive law
enforcement activity. This is this punitive approach
to wildlife management that first comes to mind as we
consider the possibilities for an ESA management plan.
We don't know what specific restrictions the Feds will
come up with. But having designated 200,000 square
miles of critical habitat that includes our hunting
grounds and travel routes and surrounds some of our
communities, any restrictions are likely to compromise
our freedom of movement through the area or our ability
to improve our communities. For example, it is not hard
to imagine that prohibited activities could include
construction of the new runway that the village of
Kaktovik so desperately needs. If a polar bear den is
identified near the community, the village may not be
able to move their runway to higher ground in order to
avoid being routinely swamped by storm surges, as it
has been in recent years. That's just one example of a
very justifiable public need that stands a good chance
of getting derailed in the wake of this listing and the
enormous critical habitat designation.
If polar bears were going to be hugely benefited by
these restrictions on our daily lives, we could at
least understand it. But the federal action on polar
bears is based on rapid disappearance of the sea ice
the bears depend on as a feeding platform.
Unfortunately, there is nothing we can do on the North
Slope to counteract that problem. Restricting our
activity in a 200,000-square-mile area will not help
the polar bear at all. It will only make life more
difficult for people, local governments and commercial
concerns.
If the federal government really wants to protect the
polar bear, it needs to address the issues of ocean
warming and climate change. Nothing will be
accomplished by restricting the ability of our
communities to go about normal daily life. We are
clearly not the cause of any serious threat to these
species, and yet we could face civil and criminal
liability under the ESA for any harm to a single polar
bear, even though we are not having any effect on
climate change or sea ice. This is not right.
In 2007, the North Slope Borough filed comments opposed
to the listing of the Polar Bear under the ESA. We did
so because although we are very concerned about sea
ice retreat we didnt think there was enough data on
polar bears to justify a listing, and we dont think
the ESA is the right tool to deal with climate change
issues.
As we noted in our 2007 comments, we have observed the
effects of the warming Arctic for many years. Sea ice
is forming later in the fall, it is not as thick as it
used to be, and it thaws earlier in the spring. Violent
storms are now more frequent and more intense and
theyre happening both earlier and later in the year.
So we are experiencing the effects of climate change.
But as we wrote in our comments to Secretary
Kempthorne, the causes of a changing northern climate
lie outside our region, and we firmly believe that any
action to counter the warming trend must focus on those
causes at their sources.
2:31:30 PM
Unfortunately, it looks like the polar bear listing is
going to be the wave of the future. For the first time
in history, there is now the likelihood of a large
number of other North Slope species being listed. The
federal government has already listed at least 5
species on or near the North Slope and is considering
at least 7 more. Based on our long experience with
bowhead whales, cooperative management agreements for
polar bears, and work with bird species such as
spectacled and Steller's eiders, we believe most
species can be managed best under the Marine Mammal
Protection Act, the Migratory Bird Treaty Act, and
for the polar bear our international conservation
agreements. There are also state and federal wildlife
laws and other international treaties that can be used
as additional tools. We dont need ESA listings to
create the best possible conservation programs along
the Arctic coast. And as I said before, no management
plan in the Arctic is going to get at the source of
receding sea ice, which is the specific problem.
We are also concerned that management under the ESA is
driven by litigation, and ESA litigation is targeted at
the federal government, ignoring any local
consequences. Any person can bring litigation under the
"citizen suit" provisions of the ESA, and local
communities are little more than collateral damage in
these actions. Our ability to participate in
traditional activities gets thrown under the bus in the
wake of broad federal actions resulting from this kind
of litigation. It is not only unfair, its completely
unreasonable.
We are exploring ways to limit the risks to our
communities. The Polar Bear Special Rule under section
4d of the ESA gives the federal government an
opportunity to shield us from some liability. This
special rule protects against liability for incidental
takes authorized by the Marine Mammal Protection Act,
and for self-defense and deterrence. We are worried,
though, that litigations - to which we are not a party
- in federal court could strike down the 4d Rule and
the protection it provides.
2:35:02 PM
Finally, I want to reiterate that in considering
actions under the ESA, the Federal Government hasnt
recognized the value of local and traditional
knowledge. We know species such as polar bear and
arctic seals better than anyone. We pay close attention
to these animals and interact with them almost daily.
They are part of our culture, our food supply, and our
way of life. We have worked with federal agencies on
many Arctic species, and weve had notable successes,
including the Alaska Eskimo Whaling Commission managing
the endangered bowhead whale and the Alaska Nanuuq
Commission managing polar bears.
Even so, our knowledge is often ignored in federal
planning, and it was not fully considered in formal
consultation before the polar bear listing. Mayor Itta
testified at hearings, wrote letters, and spoke to
Administration officials. Yet its fair to say that the
final analysis did not consider the experience and
knowledge of the people most familiar with the species.
So we dont believe there has been an adequate weighing
of local and traditional knowledge in the early ESA
decisions.
The North Slope Borough is glad to know that you are
reviewing new and potential listings under the ESA, and
we are grateful for the chance to speak on our behalf.
Theres no question in our minds that the ESA tackles
complex problems with a giant hammer aimed in the wrong
direction. It creates tremendous uncertainty for people
in our isolated communities, and it may well lead to
legal liability even though we are causing no harm to
the species. There has to be a better way, and we are
eager to work with you toward a more sensible solution.
2:38:34 PM
Co-Chair Stoltze asked if the North Slope Borough had been
involved in meaningful conversation with DOL concerning
ESAs.
ANDREW MACK, SPECIAL ASSISTANT TO THE MAYOR, GOVERNMENT AND
EXTERNAL AFFAIRS, NORTH SLOPE BOROUGH testified that the
attorney general had recently visited the North Slope
Borough. He said that the listings had been coming in at a
rapid pace and had been difficult to manage. He hoped that
conversation with DOL would continue. The Department of Fish
and Game has also been in contact.
2:40:00 PM
Co-Chair Stoltze wondered if DOL had been overly aggressive
in the pursuit of certain cases. Mr. Mack replied that it
was difficult for a local government to evaluate the
challenge faced by the attorney general each day, on whether
or not to intervene or file an Amicus curiae brief. The
borough had concern for decisions being driven by litigation
of which the borough had not been a party. For instance, the
deadline for establishing a critical habitat rule was by
consent decree in a federal court, and the borough had not
been involved in the discussion. He felt that the borough
would need to defer to the state on larger issues because
engaging in the litigation was out of the scope of what the
local government could carry out.
2:41:37 PM
Representative Gara inquired if there was a way for the
borough to become a party to litigation at the state's
expense. Mr. Mack replied that the issue was one of the
uncertainties of ESA cases. He cited the proposed runway for
Kaktovik Airport, located on Barter Island, which has been
identified as critical habitat. He anticipated litigation
and opined that the groups promoting the critical habitat
litigation in federal court had little sympathy for the
community. He expounded that the groups had stated directly;
if the choice must be made between the community and the
endangered species, the movement would be to protect the
species. If the runway plans are stifled, the borough may be
forced to engage in litigation, in which case state
involvement would most likely be necessary.
2:45:28 PM
Representative Gara asked if the federal government had
indicated that it would stop construction of the airport
based on the critical habitat consideration. Mr. Mack
replied no.
Representative Gara understood that the borough was
concerned that an outside group could intervene and file a
lawsuit. Mr. Mack yes.
2:46:48 PM
Representative Joule hoped that the voices of communities
directly impacted by wildlife issues would continue to be at
the forefront of the conversation.
2:47:48 PM
Co-Chair Hawker recalled a meeting involving committee
members in December 2009, at which Mayor Edward S. Itta of
the North Slope Borough established a dialogue with
legislators concerning ESAs. He hoped, through honest
communication with effected communities, to maintain a
mutual understanding of the issue. Representative Fairclough
echoed the sentiments.
GEORGE VAKALIS, MANAGER, MUNICIPALITY OF ANCHORAGE (via
teleconference), he spoke to the impacts of the ESA
listings, specifically as it related to the Cook Inlet
Beluga Whale, and the proposed critical habitat designation.
In May of 2007, NOAA and NMFS proposed listing Beluga Whales
as endangered under the ESA. In October 2008, the whale was
listed as endangered. The municipality supports the science
as the basis for mitigation measures that have a positive
effect on the recovery of the species. The ESA listing
required designation of critical habitat at the time of the
listing. Federal agencies must consult with NOAA and local
agencies to prevent projects that would endanger the
critical habitat. NMFS had proposed designating 3016 square
miles of the Cook Inlet as critical habitat. Comments were
being solicited by NMFS concerning the proposal. A request
was made by the mayor of Anchorage for an extension of the
comment timeframe, which was granted. Comments would be
accepted through March 3, 2010. Additionally, NMFS had
announced that public hearing will be held in Soldotna,
Homer, Wasilla, and Anchorage. The Anchorage hearing was
scheduled for February 12, 2010. He could not provide an
estimated cost to the municipality as a result of the
proposed listing. However, he was certain that the Port of
Anchorage would be significantly impacted. The port was
undergoing a major expansion and extension project to better
facilitate statewide military deployments and cargo
handling. He said that the port was designated as a vital
strategic national asset. He added that 80 percent of goods
coming to, and moving through the state, pass through the
Port of Anchorage. The Anchorage water and wastewater
treatment facility at Point Woronzof could be affected by
the critical habitat designation. The facility uses primary
discharge and meets all existing regulatory and water
quality standards. Environmental monitoring has shown that
the discharge has had no significant impact on the marine
environment. During the previous renewal of the discharge
permit, the Environmental Protection Agency (EPA) determined
that Cook Inlet Beluga Whales would not be adversely
impacted by the discharge. Currently, the municipality was
in the process of permit renewal and was concerned about the
financial consequences of moving from a primary facility, to
a more restrictive discharge system, which would cost $400
million, and may have no meaningful environmental impact.
2:55:41 PM
Mr. Vakalis shared that the city has hired a team of
scientists to assist with the permit process. The hope was
that scientific data would prove that there was no impact.
He revealed that storm water drainage permits that the
municipality had obtained would need to be reviewed because
of the critical habitat issue. Mr. Vakalis said that the
municipality was aware of its surrounding communities. The
mayors of the surrounding communities were collaborating to
address concerns. Mr. Vakalis declared that exploration and
development of the Cook Inlet Region was necessary to solve
current energy issues. He stressed the importance of quality
science and encouraged the legislature to fund science that
created valuable baseline data that could be used to assist
communities going through the required consultation process
to mitigate issues pertaining to the recovery of the Beluga
Whale in Cook Inlet.
2:59:04 PM
Representative Kelly queried the cost to Anchorage for the
required consultation process.
Mr. Vakalis replied $1 million would be spent to gain the
scientific data. Many operations associated with the port
had given federal agencies concern in regard to the Beluga
Whale. Several examples include; noise pollution, water
depth, Beluga feeding sources, and the movement of ships
through the channel. The cost was unknown as neither the
impact or required measures were known at this point.
Representative Fairclough pointed to a handout, "Endangered
Species: Can We Afford Them?" by Henry Springer (copy on
file).
3:03:46 PM
Representative Kelly queried existing statute related to
endangered species. He wondered whether opportunities were
being missed to quell environmental groups. Mr. Sullivan
replied that the problem was once a listing was made the
precedent was set. He opined that environmentalists were
very adept at manipulating the law.
3:08:06 PM
Representative Kelly requested that the department examine
the issue further.
Representative Austerman asked if the funding for outside
legal counsel could be used to pay existing staff for the
same work. Mr. Sullivan reiterated that DOL was requesting
an additional in-house attorney in the budget. The current
position was paid for by Fish and Game. Representative
Austerman felt that the committee should work to draft
intent language that would address the issue.
3:11:17 PM
Co-Chair Hawker responded that the DOL budget was arranged
into three appropriations; administrative, criminal
division, and civil division. Once the money was
appropriated into civil or criminal, the department had the
latitude to move the money where it was needed within the
division. The strongest move that could be made would be to
create a separate appropriation with clear intent language.
3:13:28 PM
Representative Gara informed the committee that last year
DOL reported that outside council had not always been
necessary. He hoped that in order to save the state money
the department would abstain from hiring outside council.
Mr. Sullivan concluded that the deepening engagement with
other effected entities would prove to be beneficial. He
stated that the issue was daunting and that the proclivity
going forward should be that the state be present in federal
discussions in order to promote the public interest.
3:17:05 PM
Representative Kelly was encouraged by the urban and rural
Alaskan unity concerning the issue.
ADJOURNMENT
The meeting was adjourned at 3:18 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| Endangered Specis Act Overview Handout.pdf |
HFIN 1/26/2010 1:30:00 PM |
|
| Endangered Specis Act Testimony.pdf |
HFIN 1/26/2010 1:30:00 PM |
|
| ESA Springer Article.pdf |
HFIN 1/26/2010 1:30:00 PM |