02/12/2007 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB74 | |
| HB41 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 74 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 12, 2007
8:35 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Craig Johnson
Representative Gabrielle LeDoux
Representative Peggy Wilson
Representative Bryce Edgmon
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 74
"An Act prohibiting mixing zones in freshwater spawning waters."
- HEARD AND HELD
HOUSE BILL NO. 41
"An Act returning certain duties regarding habitat management
from the Department of Natural Resources to the Department of
Fish and Game; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 74
SHORT TITLE: BAN MIXING ZONES IN SPAWNING AREAS
SPONSOR(s): REPRESENTATIVE(s) SEATON, GARA, LEDOUX
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES
02/05/07 (H) FSH AT 8:30 AM CAPITOL 124
02/05/07 (H) Scheduled But Not Heard
02/07/07 (H) FSH AT 8:30 AM CAPITOL 124
02/07/07 (H) Heard & Held
02/07/07 (H) MINUTE(FSH)
02/12/07 (H) FSH AT 8:30 AM CAPITOL 124
BILL: HB 41
SHORT TITLE: TRANSFER HABITAT DIV FROM DNR TO F&G
SPONSOR(s): REPRESENTATIVE(s) GARA
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES, FIN
02/09/07 (H) FSH AT 8:30 AM CAPITOL 124
02/09/07 (H) Heard & Held
02/09/07 (H) MINUTE(FSH)
02/12/07 (H) FSH AT 8:30 AM CAPITOL 124
WITNESS REGISTER
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 74.
KRISTIN SMITH
Copper River Watershed Project
Cordova, Alaska
POSITION STATEMENT: Testified in support of HB 74.
STEVE BORRELL, Executive Director
Alaska Miners Association
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 74.
DR. ROLAND MAW
United Cook Inlet Drift Fishermen's Association;
Past President, Kenai Wild
Kasilof, Alaska
POSITION STATEMENT: Testified in support of HB 74.
JOHN NELSON
Kokhanok Village, Alaska
POSITION STATEMENT: Testified in support of HB 74.
JIM KULAS, Environmental Manager
Red Dog Mine
Teck Cominco Alaska Incorporated
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 74.
LANCE TRASKY, fisheries biologist
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 41.
KERRY HOWARD, Executive Director
Office of Habitat Management and Permitting
Department of Natural Resources
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 41, provided
background information regarding OHMP and answered questions.
JOHN BITNEY, Legislative Liaison
Governor's Legislative Office
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 41, provided
clarification of the governor's letter to the chair of the Board
of Fisheries, dated February 8, 2007.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:35:13 AM. Representatives
Johnson, Johansen, and Edgmon were present at the call to order.
Representatives Holmes, Wilson, and LeDoux arrived as the
meeting was in progress.
HB 74-BAN MIXING ZONES IN SPAWNING AREAS
8:35:28 AM
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 74, "An Act prohibiting mixing zones in
freshwater spawning waters." [Before the committee is CSHB 74,
Version LS0337\M, Bullock, 2/6/07, adopted on February 7, 2007.]
8:36:54 AM
CHAIR SEATON directed the committee's attention to a generalized
discussion of the definition of "placer mine" and "mechanical
dredging" as well as the covers of three fact sheets from the
Environmental Protection Agency (EPA) that discuss the
aforementioned.
8:38:19 AM
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), provided testimony in
opposition of HB 74. Ms. Kent paraphrased from the following
written statement [original punctuation provided]:
The Department is opposed to CSHB 74(FSH) for the
following reasons:
1. CSHB 74(FSH) is not necessary to protect anadromous
salmon from either a scientific or a perception basis.
The Department of Environmental Conservation's
regulations prohibit mixing zones in anadromous salmon
spawning areas. CSHB 74(FSH) would put in statute the
same protections for the five species of anadromous
salmon that have been part of DEC's regulations since
1995.
While these protections are not necessary from a
scientific perspective, they go beyond science to
address the need to protect salmon marketing and the
public perception that Alaska's salmon are clean and
healthy.
2. There is no justification for extending the current
mixing zone prohibition designed to protect the salmon
marketing effort to protect "non-salmon" fish species.
CSHB 74(FSH) would prevent DEC from authorizing a
mixing zone in a non-salmon fish spawning area even in
cases where science can show the mixing zone will have
no adverse effect on spawning. There is no
justification for extending the mixing zone
prohibition which is intended to protect salmon
marketing efforts to non-salmon fish species. Alaska
needs to encourage and support responsible community
growth and development of its natural resources.
DEC's regulations allow exceptions to the prohibition
of a mixing zone in "non-salmon" spawning areas when
site specific conditions show that the fish species
will be protected or any adverse impacts will be
mitigated as determined by habitat and fisheries
biologists with the Departments of Fish and Game, and
Natural Resources, under their mitigation
requirements, just as they do for other activities
that occur in waterbodies.
Alaska's communities and businesses should be allowed
to use mixing zones if fish are protected. There is no
justification for restricting responsible community
growth and resource development that can comply with
the state's requirements for the growth and
propagation of fish.
3. CSHB 74(FSH) would prohibit mixing zones in
spawning areas for lampreys and smelts.
DEC would be prevented from authorizing a mixing zone
in all anadromous fish spawning areas. Lampreys and
smelts are fish species included in the definition of
anadromous fish. Unlike the importance of salmon to
Alaska's social and economic wellbeing, DEC does not
believe non-salmon anadromous fish species justify an
absolute prohibition on mixing zones that can comply
with the scientifically based water quality standards
for growth and propagation of fish.
4. CSHB 74(FSH) would prohibit reauthorization of
mixing zones that have become a fish spawning area
unless the discharge was from a municipal wastewater
facility, or the waterbody is an artificially
constructed facility.
It is possible for mixing zones to become spawning
areas even though spawning was not occurring when the
mixing zone was first authorized. DFG has discovered
fish spawning in a mixing zone previously authorized
for a drinking water utility, and in some cases for
domestic wastewater facilities. Successful fish
spawning in a mixing zone is at least partial evidence
that the water quality in the mixing zone is not
harmful to fish. Allowing mixing zones in areas that
have become successful spawning areas should be
allowed for any facility type, not just municipal
wastewater facilities or artificially constructed
facilities. Businesses and communities should not lose
their mixing zones just because they are doing such a
good job treating their wastewater that fish start
spawning in them.
5. CSHB 74(FSH) includes a definition of "area" that
is counter to both past and current practices by the
Departments of Fish and Game and Natural Resources
when determining spawning areas on both a spatial and
temporal basis.
The relative sensitivity of Alaska's fish resources is
seasonal. Impacts from responsible community and
resource development can be avoided by limiting uses
and activities to times of the year when the fish
resources are not there or other seasonal conditions
eliminate adverse impacts to the fish resources.
Alaska's resource agencies have traditionally employed
"seasonal restrictions" to control development impacts
to the environment.
There are dozens of currently permitted facilities
with discharges that do not have an adverse effect on
fish, in part due to timing restrictions imposed on
their discharge via permit conditions. DEC's
regulations also prohibit mixing zones that would
adversely affect the capability of the area to support
future spawning, incubation, and rearing activities.
CSHB 74(FSH) would require the Department to cancel
those permits (other than for placer mines) and limit
future permitting in similar situations without any
net environmental benefit to the fish.
6. CSHB 74(FSH) will create a temporary inequity
between existing placer miners and new placer miners.
Placer mines with mixing zone authorizations under the
current general permit do not have to comply with the
proposed CSHB 74(FSH) restrictions of AS 46.03.065(c)
until the general permit is reauthorized - currently
scheduled for the fall of 2010. Any new placer mines
seeking permit coverage would have to comply with the
new restrictions of CSHB 74(FSH) immediately. This
would set up a double-standard for existing vs. new
placer mines during the next few mining seasons.
7. CSHB 74(FSH) would prohibit re-authorization of
mixing zones for placer mines that cannot operate with
a mixing zone limited to 500 feet.
There are approximately 28 placer mines that have an
authorized mixing zone greater than 500 feet in length
- the proposed limitation in CSHB 74(FSH). These
facilities, under current regulatory requirements,
have already done everything they can do to ensure the
mixing zone is as small as practicable. It is likely
that many of these facilities could not be re-permited
under the proposed 500 foot mixing zone limitation,
even though they are currently operating without an
adverse impact to spawning.
8. CSHB 74(FSH) relies upon a new undefined term,
"useful life" when referring to renewal of a mixing
zone authorization for a municipal wastewater
facility.
As many facilities age, they are upgraded to varying
degrees from minor modifications to almost complete
reconstruction. DEC knows of no standard or criteria
for determining a facility's "useful life."
Introduction of the concept of a "useful life" raises
questions about what constitutes a modification or
upgrade to a facility vs. reconstruction at the end of
a facility's "useful life."
The "useful life" of a facility is also irrelevant to
the properties and effects of a mixing zone or the
methods necessary to protect fish.
9. CSHB 74(FSH) is inconsistent with the current
statute for protection of fish and game (AS
41.14.870), interference with salmon spawning streams
and waters (AS 16.10.010), or submission of plans and
specifications (AS 16.20.060).
Alaska's legislature has enacted a protective legal
framework for all waters important to fish with
additional protections for rivers, lakes and streams
that are important for salmon spawning, rearing, or
migration. State approval must be received from DEC,
DNR, or DFG prior to the construction in, or use of
waters important to fish spawning, rearing or
migration.
CSHB 74(FSH) prohibits all mixing zones in all
anadromous fish and other specifically listed fish
spawning areas. However, CSHB 74(FSH) does not amend
or repeal the provisions in other state law that
permit the use of fish spawning areas if there are no
adverse impacts from that use. CSHB 74(FSH) conflicts
with current legislative policy not specifically
amended or repealed by CSHB 74(FSH).
10. CSHB 74(FSH) will impact Alaska's municipalities
and villages.
CSHB 74(FSH) provides for renewal of existing mixing
zones for municipal or village treated sewage
discharges when spawning begins to occur in the mixing
zone after one is authorized. In all other cases,
though, the bill prohibits mixing zones for discharges
of treated municipal sewage to anadromous and other
fish spawning areas. Some fish species, Arctic
grayling for example, are ubiquitous and spawn
throughout Alaska's river systems. CSHB 74(FSH) would
preclude the use of mixing zones to authorize the
discharge of treated sewage from a large number of
village sewage treatment lagoons that discharge to
interior river systems where Arctic grayling spawn.
The alternative of treating sewage from villages to a
level where no mixing zone would be required would
involve exorbitant costs and is simply not feasible.
11. Mixing zones are already strictly regulated under
existing regulations.
Before authorizing any mixing zone in any waters
(fresh or marine, with or without spawning area
considerations), the Department must consider 19
specific regulatory provisions. Many of them are
designed specifically to protect aquatic life. For
example, the Department must find that the designated
and existing uses of the waterbody as a whole,
including growth and propagation of aquatic life, will
be maintained and protected, and that overall
biological integrity of the waterbody will not be
impaired. In addition, a mixing zone cannot be
authorized if it will result in an acute or chronic
toxic effect in the water column, sediments, or biota
outside the boundaries of the mixing zone; result in a
reduction in fish or shellfish population levels;
result in permanent or irreparable displacement of
indigenous organisms; adversely affect threatened or
endangered species; form a barrier to migratory
species or fish passage; contain pollutants that
bioaccumulate, bioconcentrate, or persist above
natural levels in sediments, water, or biota; or cause
lethality to passing organisms.
In summary, mixing zones are not a blanket approval to
discharge pollutants into water. Their size and shape
are calculated by engineers using mathematical models
and site specific information including the
concentration of pollutants, water volumes and flow
rates.
Once authorized, many permits require the permittee to
monitor the concentration of pollutants in the
discharge and to monitor the waterbody at the edge of
the mixing zone to ensure that all water quality
standards are being met at the edge of the mixing
zone. DEC also conducts independent inspections and
independent monitoring of permittees.
8:48:35 AM
CHAIR SEATON asked if, prior to 2006 and the implementation of
the new regulations [which are mirrored in HB 74], the division
denied villages mixing zones for municipal wastewater treatment
plants.
MS. KENT explained that many villages have lagoon systems and
the lagoons are nondischarging for most of the year. Those
lagoons and facilities have been permitted to discharge at
certain times of the year in order to avoid spawning times.
Therefore, if the seasonal restrictions aren't available to the
village, the village won't be able to discharge its lagoons.
8:49:42 AM
CHAIR SEATON asked, "Under the current regulations, as written,
that define spawning areas, you had not denied any permits. Is
that correct?" He also asked if that was correct in the
previous decade.
MS. KENT answered, "I'm not sure." In response to
Representative LeDoux, Ms. Kent agreed to find out whether
permits had been denied under the current regulations. She then
related that the mixing zone authorization for the Pogo Mine's
domestic wastewater discharge from its mining man camp wasn't
denied. However, the company was required to perform extensive
studies of the Good Paster River in order to find a small place
in the river that was underlain by bedrock and unsuitable for
fish spawning, which would be used for its domestic wastewater
discharge outfall. In response to Representative Johnson, Ms.
Kent agreed to inform the committee of the number of
applications.
8:51:50 AM
CHAIR SEATON inquired as to why Ms. Kent believes the language
"useful life," which is used throughout statute, is different in
this case. He requested that Ms. Kent update her testimony with
regard to that distinction.
MS. KENT said that she hasn't reviewed the other statutes
referring to "useful life." However, she said that she's well
aware of the facility upgrades occurring in rural Alaska. She
noted that she would review that language.
8:53:04 AM
CHAIR SEATON related his understanding that there may be some
inordinate discrimination between new placer miners and existing
placer miners. He recalled the practice of provisions
grandfathering in existing facilities until new permits are
available, such as the general permit that will be reissued in
2010.
MS. KENT explained that the legislation is written such that
anyone who isn't currently placer mining but wishes to be
covered this summer will need to apply for coverage under the
existing general permit and comply with the restrictions
specified in HB 74. For instance, any new placer miners would
have to comply with the limitation on the length of the mixing
zone. In further response to Chair Seaton, Ms. Kent said that
the only difference is that HB 74 is drafted such that it would
apply differently to the existing permitted placer mines and
those seeking a permit between now and the reauthorization of
the general permit.
8:55:06 AM
KRISTIN SMITH, Copper River Watershed Project, informed the
committee that the Copper River Watershed Project is a
membership nonprofit that focuses on the entire Copper River
region. The project represents the salmon economies of the
Copper River region. She further informed the committee that
the Copper River watershed relies on a commercial salmon fishing
economy, subsistence salmon economy, and a growing sportfishing
salmon economy. She related that the Copper River region's
salmon economy amounts to about $20 million annually on average.
Therefore, [the Copper River Watershed Project] supports banning
mixing zones in spawning areas. She emphasized that fish are a
public resource and should be managed for the public benefit.
Allowing mixing zone pollution in public waters benefits a few,
not the general public. Furthermore, mixing zones need to be
banned from spawning areas at all times because of the harm
caused by residual pollutants. Public waters have to be managed
for all forms of pollution in order to be effective and spawning
areas have to be treated as such rather than a particular point
in time. Ms. Smith related that water quality treatment in the
Copper River region has illustrated that the long-term
polycyclic aromatic hydrocarbons bioaccumulate and micro-
organisms can accumulate in their tissue. However, the state
water quality standards don't take bioaccumulation into account,
but rather only measure acute episodes of pollution. It's
critical to move HB 74 through, she said. She then expressed
her outrage at having to testify on this subject again.
8:58:54 AM
STEVE BORRELL, Executive Director, Alaska Miners Association,
provided testimony in opposition to HB 74 as well as Version M,
which he characterized as more onerous than the original
legislation. Mr. Borrell provided the following testimony:
States are allowed to authorize mixing zones under the
Clean Water Act because in some situations no other
alternative exists to handle some discharges. In
Alaska most of the mixing zones are for sewage
discharges by municipalities and a few mining
operations also need mixing zones to comply with the
very stringent discharge limits that are in place.
Mixing zones are the option of last resort and
authorized by DEC only after no other feasible
alternative is determined. Mixing zones are sized
based on the flow of the receiving water and by law
must be "as small as practicable". That term appears
in law throughout EPA regulations, in statute, and in
state. Mixing zones are not allowed when salmon
spawning is occurring; timing restrictions currently
placed on mixing zones so they cannot be used when
salmon are spawning. The CS to House Bill 74 adds the
words "at any time" and would eliminate use of mixing
zones even when spawning was not occurring. DEC would
not be able to issue mixing zones "at any time" if
spawning ever occurs in that area.
The second change made ... by the committee substitute
adds the term "a turbidity mixing zone". There is a
hidden problem within this addition of the term.
Turbidity modifications are currently allowed for
placer and dredge miners and this is, in essence, the
mixing zone. However, EPA and DEC, after several
years of study and multiple legal challenges,
determined that turbidity was a reasonable surrogate
for naturally occurring arsenic and that if a very low
limit was placed on turbidity, the permit would be
protected for arsenic in the discharged water as well.
Therefore, with the change made by the CS, the use of
turbidity as a surrogate would likely not be allowed.
The bill appears to grandfather municipalities that
currently have mixing zones that become a spawning
area after the mixing zone is approved. However, if
the municipality needs to expand, to modify, or make
some change to the sewage plant, it would require a
different permit and it would no longer qualify and
could no longer have the same mixing zone or any
mixing zone. It is my understanding that this is the
situation for the City of Palmer where changes have
occurred in the Matanuska River since the permit was
issued and the discharge area for the Palmer sewage is
now a spawning bed for salmon. This bill is likely to
contribute to the demise and closure of some villages.
By not being able to obtain a mixing zone, the bill
will add one more huge costly hurdle to villages that
are already struggling to survive. The bill makes no
provisions for the many villages and municipalities
that do not now have a discharge permit, and therefore
do not have a mixing zone. These villages ...
typically have a sewage lagoon and each spring when
water is either pumped or drained off the top and
pumped into an adjacent stream or river. In the
spring of the year, the river is high and provides a
mixing zone for the discharge from the lagoon.
A cursory view of discharge permits now in effect
provides some interesting results. First off, it
appears that every fish processing plant in either
fresh or salt water already has a mixing zone. These
mixing zones vary from a few meters to several hundred
meters in size.
MR. BORRELL then reviewed the specifics of mixing zones in the
following areas: Palmer, Point Barrow, Soldotna, Kenai,
Dillingham, King Salmon, and Homer. He mentioned that there are
various fish processing plants on the Kenai River, but he didn't
have the details of the permits. Mr. Borrell opined:
This bill does not address the real question. The
real question: Is there adverse impact due to these
mixing zones or due to any other mixing zones. If
there is adverse impact, no mixing zone should be
allowed irrespective of whether it involves a
municipality, a fish processing plant, a village, or a
mine. If there is no adverse impact and that's the
purpose of the science that's required to obtain such
a permit and there are no other practical
alternatives, a mixing zone may be appropriate. All
discharges must be treated equally and the same
rigorous science must be applied before any mixing
zone is approved.
9:07:04 AM
CHAIR SEATON noted that the City of Palmer has provided a letter
in support of HB 74.
9:07:41 AM
REPRESENTATIVE LEDOUX asked how villages and municipalities have
faired prior to the regulatory change last year.
MR. BORRELL said that he didn't know the details of the
situation prior to the regulatory change. Under the current
regulations, it appears that a village can obtain a mixing zone
[permit] in a resident fish spawning area, he surmised.
However, under the legislation those villages that don't
currently have a mixing zone wouldn't be able to obtain one. He
recalled a DEC EPA meeting several years ago in which the EPA
representative admitted that many remote villages don't have
permits of any kind and mentioned that they can't get to
everything.
9:09:50 AM
CHAIR SEATON, in response to Representative Johnson, clarified
that in essence House Bill 328 of the Twenty-Fourth Alaska State
Legislature is identical to [HB 74].
9:10:29 AM
DR. ROLAND MAW, United Cook Inlet Drift Fishermen's Association;
Past President, Kenai Wild, began by noting his agreement with
Ms. Smith's comments regarding the hydrocarbon issue. Dr. Maw
related his support of HB 74. With regard to marketing salmon,
he said that perception is the reality. He then recalled his
attendance at the Chefs of America convention where he displayed
the Kenai Wild salmon product. The chefs held cards that
specify endorsed products available to them, products that are
in question for consumption, and products that wouldn't be
purchased. There was some question about Alaska salmon as some
of the salmon products from Alaska were listed in the
questionable category. However, Kenai Wild, Kenai, and Bristol
Bay salmon as well as southeast troll salmon were listed in the
endorsed products category. He recalled spending a lot of time
discussing the handling procedures, environment in which the
fish were raised, and about heavy metals and other contaminants.
Therefore, he surmised that if Alaska isn't careful with this
mixing zone issue, some of Alaska's products won't be supported
or listed in the endorsed category.
9:16:21 AM
JOHN NELSON stated support for HB 74. He highlighted that he
lives in an area with pristine waters. In fact, the area is
part of the sockeye capital of the world. Additionally, the
village utilizes Lake Iliamna water for human consumption. With
regard to earlier testimony that villages have the obligation to
pump/discharge their sewer lagoons in fresh water, Mr. Nelson
stated his disagreement. He informed the committee of various
villages, including the Village of Kokhanok that don't discharge
contaminated water into [fresh water].
9:18:26 AM
REPRESENTATIVE LEDOUX related her understanding then that the
Village of Kokhanok isn't concerned about any dire consequences
that Mr. Borrell discussed in relation to village wastewater
systems.
MR. NELSON replied, "No, no I wasn't. No, I just wanted to make
a commentary of that."
9:19:04 AM
JIM KULAS, Environmental Manager, Red Dog Mine, Teck Cominco
Alaska Incorporated, began by saying that he is calling on
behalf of Teck Cominco and its partner NANA Regional
Corporation. He related Red Dog's opposition to HB 74, and
opined that existing regulations adequately protect spawning.
He explained that at the Red Dog Mine two mixing zones are
necessary and are used, although they are only used as a last
resort. The mine has done exhaustive work to treat its
discharge to meet the best standards possible. The discharge
permitting process is very rigorous and detailed. For instance,
the Red Dog Mine had a permit renewed by EPA that took eight
years to obtain. Furthermore, to obtain a mixing zone permit
requires considerable study and science to justify it. He
explained how this is monitored by the state annually and how
the Red Dog Mine spends over $1 million per year to monitor its
discharge. Again, the mixing zones were a last resort as the
mine was spending almost $5 million per year to treat and
discharge water and roughly $50 million in capital costs to
construct the [treatment] plant. The aforementioned illustrates
the effort before requesting a mixing zone. In the case of Red
Dog Mine, what it discharges meets drinking water standards for
metals. However, the mixing zone is necessary for pH and
dissolved solids. Mr. Kulas pointed out that the Red Dog Mine
has been discharging for 18 years and through all the exhaustive
studies, no aquatic harm has been identified. In fact, the fish
population downstream from the mine's discharge has increased
over the life of the operation. Therefore, Mr. Kulas reiterated
that the existing regulations allow for protection. With regard
to the question of grandfathering, he pointed out that all of
the permits issued by EPA only have a five-year life.
Therefore, he questioned how satisfactory grandfathering would
be for a permit with a limited life.
9:23:16 AM
CHAIR SEATON related his understanding, "So, you were able to
get your mixing zone permit and do this for the decade before
January 1, 2006, you've been able to operate. Is that correct?"
MR. KULAS replied yes, adding that the Red Dog Mine has been
discharging since 1990.
9:23:40 AM
CHAIR SEATON inquired as to the difference between the situation
10-12 years ago and today. He also inquired as to why Red Dog
Mine was able to operate and survive under the previous
regulations and why it would be difficult to return to those
previous regulations.
MR. KULAS explained that in the case of the Red Dog Mine, the
original discharge permit was based on a technology standard.
That permit and those limits were relatively easy to achieve.
Subsequent to the issuance of that permit, EPA changed its
permitting requirements to what's considered a water-quality
based standard. At that point, the permit limits were much
lower and thus the mixing zone was required. He informed the
committee that the Red Dog Mine has to change its operation to
respond to the Grayling spawning period such that the discharge
is decreased so that the mixing zone isn't required. The
aforementioned is achieved with state oversight during which a
biologist is brought on site to observe spawning and inform the
mine when it has concluded.
9:26:08 AM
REPRESENTATIVE WILSON asked if Mr. Kulas is saying that the
standards and requirements are more stringent now.
MR. KULAS replied yes. When EPA changed the basis for writing
the permit limits from a technology basis to a water-quality
basis, the permit limits were ratcheted down considerably. For
example, in the case of zinc the Red Dog Mine was allowed 1,500
parts per million (ppm) in its discharge and that was decreased
to 198 ppm, which is almost 10-fold. The aforementioned
occurred on virtually every permit limit.
9:26:59 AM
CHAIR SEATON, upon determining no one else wished to testify,
closed public testimony.
[HB 74 was held over.]
HB 41-TRANSFER HABITAT DIV FROM DNR TO F&G
9:27:31 AM
CHAIR SEATON announced that the final order of business would be
HOUSE BILL NO. 41, "An Act returning certain duties regarding
habitat management from the Department of Natural Resources to
the Department of Fish and Game; and providing for an effective
date."
LANCE TRASKY, fisheries biologist, began by informing the
committee that for 31 years he was a fisheries research
biologist, habitat biologist, and regional supervisor for the
former Division of Habitat within the Alaska Department of Fish
& Game (ADF&G). Mr. Trasky paraphrased from the following
written remarks [original punctuation provided]:
I am testifying today to voice my strong support for
House Bill 41 which would reverse former Governor
Murkowski's Executive Order 107 and returns the
responsibility to protect salmon streams and prevent
blockages of fish streams to the Department of Fish &
Game where it rightfully belongs.
Such an action will accomplish two things. First, it
will help to restore public confidence in the state's
regulatory system which was badly eroded during the
Murkowski administration. Secondly, it will place the
authority on how to protect our socially,
economically, and culturally valuable fisheries
resources back in the hands of Department of Fish &
Game fisheries biologists with a statutory mandate and
the expertise to protect, preserve, maintain and where
possible extend the fish and wildlife resources in the
interest of the economy and well being of the state,
as the founding fathers of this state intended.
Alaska's founders witnessed decades of fisheries and
fisheries habitat mismanagement when other interest
trumped conservation. The founders also witnessed the
final demise of the once great salmon fisheries of the
Pacific Northwest in the 1950's and had predicted that
the loss of habitat as a result would be the biggest
long-term threat facing Alaska's fisheries as well as
the subsistence, commercial and sport fishers who
depend upon them. As the framework of state
government was taking shape, a heated debate ensued
between Alaskan fishermen and those involved in
mining, logging, and hydropower development regarding
how state government would be organized in addition to
deciding what functions various agencies would have.
Miners and loggers wanted a traditional system with a
Department of Natural Resources and a simple fish and
game management division having no authority in
critical habitat decisions. Fish interests wanted a
separate Department of Fish & Game. They also wanted
this department to have an equal voice in state
resource management decisions, a constitutional
mandate for sustained yield, and the statutory
authority to prevent the destruction of anadromous
fish habitat on public and private lands, as well as
to prevent blockage of fish passage from dams and
other obstructions. Fisheries interest won out and
for 43 years this was the law of the land.
Unfortunately in 2003, Governor Murkowski was able to
do what our founding fathers feared most. By
transferring the Anadromous Fish Act and the Fish Ways
Act to the Alaska Department of Natural Resources
(ADNR) and implementing a Memorandum of Agreement
granting ADNR oversight of the Federal Fish and
Wildlife Coordination Act, and radically changing the
Alaska Coastal Management Program; Governor Murkowski
was able to funnel all of the authority to approve
development projects into the ADNR. He also appointed
manager who shared his views to implement his vision.
He set Alaska on the same dead-end road that the
former salmon producing western states followed.
The transfer of these statutory authorities and
programs has directly affected the consideration that
fish habitat and subsistence, commercial, and sport
fishermen receive in state resource development and
permitting decision in several ways:
1. ADF&G and ADNR have very different missions. ADF&G
has the statutory mandate to protect and maintain fish
resources, while ADNR has the mandate to develop the
states' renewable and non-renewable resources.
Removing the responsibility to protect fish habitat
from ADF&G makes it much easier for ADNR to
inappropriately sacrifice fish habitat to facilitate
non-renewable resource development.
2. The balance that state founders sought in resource
development decisions has been lost. Some people have
tried to make the argument that ADNR employees would
protect fish as diligently as they did at ADF&G.
These people must not have heard of corporate culture.
The transfer of staff and authorities is akin to
moving the Mercedes design team to Hyundai and then
expecting that they will still be building Mercedes.
3. Over my career I was involved with many different
development projects where the Department of Fish &
Game and ADNR had very different positions on ADNR
projects and activities affecting fish, wildlife and
public use. Examples include:
· One example was the issue of requiring logging
operations on state and private lands to follow
the law and submit plans for stream crossing
structures to review for adequacy before
construction. Loggers and ADNR did not want
ADF&G's Habitat Division to require loggers to
obtain permits from ADF&G to build roads across
fish streams. ADF&G asserted its authority under
the Anadromous Fish Act and Fish Ways Acts and
continued to require loggers to get permits.
· A second example is mixing zones in spawning
areas. The Alaska Department of Environmental
Conservation (ADEC) proposed to change their
regulation's to allow mixing zones for harmful
substances in fish spawning areas during both the
Hickel and Knowles Administration. Habitat
Division led the ADF&G's opposition to the change
and it was withdrawn both times. After the
Habitat and Restoration (H&R) Division was
transferred to ADNR and the change [ADEC proposed
regulations on mixing zones] was supported by
ADNR; no one in ADF&G fought it.
9:33:59 AM
MR. TRASKY continued:
4. One question which comes up often is how has
permitting changed now that it is administered by
ADNR? Because there is no public notice requirement
for the thousands of ADNR fish habitat permits issued
annually, the only people who know if these permits
effectively protect fish habitat are the ADNR person
issuing the permit and the applicant. The same is
true for violations of these permits. I do not have
access to these permits but asked this question of a
number of state, federal and private biologists who
have experience in ADF&G fish habitat permitting and
are knowledgeable about fish habitat permitting before
and after the transfer of ADF&G's permit authority to
ADNR. I won't disclose their names or positions
because of concerns about retaliation. However, here
is what I was told about the differences:
A. Comments from Federal Biologists:
1. I review federal projects affecting fish and
wildlife and do not see ADF&G or ADNR-Office of
Habitat Management and Permitting (OHMP) as a
player in projects any more. Often no one from
ADF&G or OHMP even attends project meetings.
2. My agency has no relationship with ADF&G or ADNR-
OHMP any more. Staff at one OHMP office does not
even return calls.
3. The policy at OHMP seems to be to narrowly
interpret their responsibilities to permitting
within the banks of anadromous streams and stream
blockages. Overshadowing issues such as
activities which may impact a watershed seem to
be ignored. There is little interest in wildlife
issues.
4. The few former ADF&G H&R staff that remains at
OHMP seems to be trying to do a good job. The
new hires that attend project meetings rarely
open their mouths. Most of them do not seem to
know much about the issues that they are dealing
with.
5. Consultants have asked me why ADF&G and OHMP no
longer asks any tough questions related to
environmental documents for the road, oil and
gas, and mining projects they are working on.
6. Some of the best biologists have left OHMP when
they had an opportunity to return to ADF&G or
retire.
9:36:12 AM
MR. TRASKY continued:
B. Comments from State Biologists:
1. OHMP staff has lost the close working
relationship with ADF&G staff and the information
that they provided on projects. There is no
priority in OHMP to solicit ADF&G input on
projects, particularly projects that ADF&G may
not like.
2. Regional OHMP staff does not receive any support
on enforcement actions.
3. The permits that the OHMP leadership wants us to
write do not contain project specific conditions
and are largely unenforceable. The emphasis is
on reducing review time and increasing permit
numbers, not a high level of fish habitat
protection.
4. For a fisheries or wildlife biologist, working at
ADNR is a dead end. For career advancement they
will need to go elsewhere.
5. A number of experience habitat biologists left
ADNR when the opportunity arose. They were
replaced with people with little or no
experience.
6. ADNR-OHMP biologists are discouraged from
participating in multi-agency working groups
which are working on means to avoid impacts on
fish and wildlife and from attending project
meetings. Biologists don't do coastal reviews,
or review subdivision plats that the Borough
sends over even though the development would
affect a salmon stream.
9:37:38 AM
MR. TRASKY summarized as follows:
In summary I believe that the changes that former
Governor Murkowski made during his administration
substantially reduced the protection that fish habitat
receives both at the policy level and the issuance of
permits for individual projects. It also increases
the risk that large projects will be approved.
Projects that will have very significant short and
long-term impacts on fish and wildlife resources as
well as commercial, subsistence and sport fishermen
who depend on these resources. I urge you to restore
the balance in state resource decisions and pass HB
41.
9:38:25 AM
KERRY HOWARD, Executive Director, Office of Habitat Management
and Permitting (OHMP), Department of Natural Resources (DNR),
mentioned that committee members should have a book of
background information on OHMP. She related her understanding
that the committee has a copy of the letter Governor Palin sent
to the Board of Fisheries indicating her intent not to move the
habitat office back to DNR. Therefore, Ms. Howard said that she
would provide some background about OHMP in hopes that it would
help explain some of the things Governor Palin considered in her
decision.
9:39:39 AM
MS. HOWARD turned the committee's attention to the first page of
the book provided by OHMP, which specifies the agency's mission
statement as follows: "The mission of the Office of Habitat
Management and Permitting is to protect Alaska's valuable fish
and wildlife resources and their habitats as Alaska's population
and economy continue to expand." She highlighted that the
agency's mission is derived from the Alaska State Constitution.
Article VIII specifically addresses the state's natural
resources, Section 1 specifies: "It's the policy of the state
to encourage the development of its resources by making them
available for maximum use consistent with the public interest."
Section 4 specifies: "Fish and all other replenishable
resources belonging to the state shall be utilized, developed,
and maintained on the sustained yield principle." Therefore,
OHMP's mission is intended to acknowledge and implement the
aforementioned constitutional responsibilities. Some interested
parties have asserted that DNR and ADF&G have very different
mission statements and that having the habitat office at DNR,
habitat won't be protected as well. However, both agencies must
abide by the constitution and both have statutes that refer to
"conservation and development". Ms. Howard highlighted that AS
44.37.020(a) says, in part: "The Department of Natural
Resources shall administer the state program for the
conservation and development of natural resources" while AS
44.39.020 specifies, in part: "The Department of Fish and Game
shall administer the state program for the conservation and
development of the state's commercial fisheries, sport fish,
birds, game, and fur-bearing animals." Additionally, AS
16.05.020(2) requires the commissioner of ADF&G "to manage,
protect, maintain, improve, and extend the fish, game and
aquatic plant resources of the state in the interest of the
economy and general well-being of the state." Ms. Howard
pointed out that the statutes of the former habitat division
were unchanged when it was moved to DNR. Therefore, the
biologists at OHMP implement the exact same statutes that are
implemented at ADF&G. Furthermore, biologists at DNR work
closely with biologists at ADF&G in implementing duties and
routinely consult with them on matters for which they have data
and expertise and incorporate that information into permitting
decisions. The aforementioned is specified in a memorandum of
understanding (MOU) between the two agencies. She then pointed
out that the second page of the book reviews the division's
statutory responsibilities and priorities. The division's
priorities are the issuance of fish habitat permits, active
participation in the Forest Resources and Practices Act,
participation in the Alaska Coastal Management Program,
participation as a team member with multi-agency reviews that
involve large project, and maintain and update the anadromous
waters catalog.
9:42:41 AM
MS. HOWARD then directed attention to the organizational chart,
which illustrates that OHMP is a small organization. The
division has 37 full-time positions statewide, which are
delineated into 7 area offices. There is also an OHMP staff
position in the Joint Pipeline Office. Ms. Howard acknowledged
that there was a great amount of turnover when OHMP was moved to
DNR. However, 42 percent of OHMP's staff are former habitat and
restoration employees and since vacancies have been filled, over
79 percent of OHMP's staff are from ADF&G. Additionally, the
qualifications for a habitat biologists are the same as those
for being a habitat biologist in ADF&G. Ms. Howard highlighted
that in addition to OHMP there is a habitat office in ADF&G,
which is called Region V Habitat. Essentially the Region V
office in ADF&G has the same number of staff as OHMP. The two
divisions, she said, work together professionally and
collegially in order to ensure there's no duplication of duties
and share information and knowledge.
9:44:18 AM
MS. HOWARD highlighted that the book she provided includes a
PowerPoint presentation that provides additional information
regarding what OHMP does as well as additional missions and
measures. The book also includes a short white paper that
provides additional information regarding Executive Order (EO)
107 and the changes that accompanied it. Ms. Howard then
directed attention to the MOU between ADF&G and DNR regarding
reviews of land and water use activities. The MOU was
originally signed in October 2003 and has been amended four
times to provide additional clarity and specificity as well as
delineate how coordination between OHMP and ADF&G is
accomplished. She explained that OHMP, in addition to its Title
41 permit responsibilities, has the lead role reviewing resource
development projects unless they are within or significantly
impacting a legislatively designated special area for which
ADF&G has the lead. However, she acknowledged that other
divisions at ADF&G have information and expertise that would be
useful in making permit decisions on large projects. Page 6 of
the MOU specifies that OHMP either directly coordinates with
ADF&G staff, Category 2, or Region V Habitat is asked to
consolidate ADF&G comments, Category 3, and provide to OHMP.
The categorization of the project is dependent upon the activity
itself and the potential significant adverse impacts.
Significant adverse impacts always result in the project being a
Category 3. The following are examples of Category 3 projects:
South National Petroleum Reserve-Alaska (NPR-A), Abbott Loop
Extension, Beluga Coal, Juneau Access, Knik Arm Crossing, and a
general placer permit. The Pebble Project was initially a
Category 3 project, but last fall it was decided that ADF&G
should have a full seat at the table, entirely separate from
OHMP and the MOU was amended to do so. Ms. Howard confirmed
that OHMP isn't reviewing subdivision plans, but pointed out
that it's because the MOU gives that responsibility to
biologists at ADF&G.
9:46:49 AM
MS. HOWARD highlighted that Governor Palin's letter [dated
February 8, 2007] says that she will have the commissioners of
ADF&G and DNR review the MOU in order to ensure that interagency
cooperation, responsibilities, and exchange of information are
working well. In fact, the first meeting for the aforementioned
is the coming Thursday. In conclusion, Ms. Howard recalled
Representative Gara's opening remarks on HB 41 when he said that
the state has an important duty to protect the fisheries. The
aforementioned duty, she said, was taken seriously when the
habitat division was housed in ADF&G and it continues to be
taken seriously by biologists at DNR.
9:47:25 AM
REPRESENTATIVE JOHANSEN related his understanding that OHMP is
an awful place to work and staff are afraid to speak their mind.
He asked Ms. Howard to comment on that. He then asked if most
of OHMP's employees are classified employees and members of the
state employee's association.
MS. HOWARD commented that reasonable people can disagree. She
guaranteed the committee that there are no sideboards,
constraints, or threats to her staff. She explained that only
two employees of OHMP, herself and the operations manager, are
partially exempt and the remainder are classified employees.
Ms. Howard opined, "When people disagree, it's often easy to
resort to second hand information to try to construct an
argument about how bad you think that they are. But I would
welcome anyone to bring forward a specific project where they
think my staff has not done their job, they're not
participating, they're shirking their duties, and let's talk
about specifics. Let's not talk about generalities and
innuendos because just last week ... I had a two-day meeting
with my area managers and they were, quite frankly, offended
that some parties were saying that they felt like they weren't
doing their job."
9:49:12 AM
REPRESENTATIVE JOHANSEN asked if OHMP's classified employees
have a grievance process if they feel they are being kept quiet.
MS. HOWARD confirmed that there is a process, but deferred to
union representatives. She informed the committee that there
hasn't been a single grievance filed. She said she would
welcome the committee to invite any of her staff to testify in
regard to how they feel about their jobs.
9:50:13 AM
REPRESENTATIVE JOHNSON related his understanding that anyone who
came forward with a grievance would be protected under the
state's whistleblower's statute.
MS. HOWARD noted her agreement. She reiterated that she is
offended to hear that she and her operation's manager threatened
retribution, which she said was unfounded and ungrounded. She
also said that she would happily speak with members about
specifics.
9:50:43 AM
REPRESENTATIVE JOHNSON cautioned the committee with regard to
unnamed sources. If someone has a grievance, then he/she should
come forward and state it.
9:51:11 AM
CHAIR SEATON reminded members that when someone testifies,
members should consider the source and its reliability and work
through what it means.
9:52:29 AM
REPRESENTATIVE JOHANSEN related that the concern with regard to
the working environment at OHMP came from the opening remarks of
the sponsor as well as from public testimony.
9:52:54 AM
REPRESENTATIVE HOLMES recalled testimony regarding the level of
transparency of the discussion, depending upon the location of
the habitat division. She further recalled that the notion was
that when the division was under ADF&G, there would be a
commissioner-level discussion between the division through ADF&G
and the commissioner of DNR with regard to permits and other
decisions in question. With the division within DNR, that
debate will now occur within a single department and ADF&G may
not be involved at all. Representative Holmes requested comment
on the aforementioned transparency issue.
MS. HOWARD acknowledged that business was done differently when
two different departments were involved in the decision-making.
However, all of the decisions remain public documents and public
information. She recalled that [prior to the division's
transfer to DNR], on large projects, particularly coastal zone
projects, ADF&G, DNR, and DEC would all forward comments to the
governor's office in the Alaska Coastal Management Program to be
put forward as a state position. There were informal elevation
procedures should the finding be objectionable to any of the
commenters. The same process still happens, it merely occurs
within DNR. Ms. Howard said that she and her staff submit
comments to the Office Project Management and Permitting (OPMP),
which consolidates comments from the various divisions of DNR.
She emphasized that any project larger than a bed box results in
the staff of OHMP communicating with biologists at ADF&G, and
therefore the comments forwarded [by OHMP] incorporate comments
from ADF&G. Again, the [comments are submitted to OPMP, there's
an elevation process, and informal discussions. Ms. Howard said
she didn't believe there have been many elevations, which she
interpreted to mean that staff are coming to agreement on
projects between discussions among themselves. She noted that
she routinely discusses projects with her staff and if it's
important enough, it's brought to the commissioner's attention.
Almost 2,500 permits a year are reviewed and although she said
she doesn't know about every project and permit, she does know
about the ones with potential for controversy. She related that
most recently she briefed the commissioner on a project in which
ADF&G proposed to use explosives within Trinity and Shell Creek,
anadromous fish streams, to remove beaver dams. This permit was
denied because OHMP staff didn't believe the use of explosives
in an anadromous fish stream was protective of the fish or the
habitat. Ms. Howard then related that she has worked in the
habitat division under both departments, and opined that the
staffs of both offices have done a good job representing the
state's interests on fish and fish habitat.
9:57:24 AM
REPRESENTATIVE HOLMES inquired as to how often there are
commissioner-level discussions between DNR and ADF&G with OHMP
in DNR versus when the division was located in ADF&G.
MS. HOWARD said that she doesn't have exact numbers, but opined
that it's less [with OHMP under DNR] which she attributed to
changes in the coastal management program. Under the old
coastal program, the habitat standard specified that the
division "shall maintain or enhance" and if that couldn't occur,
then there was a three-part test to reach a different outcome.
The changes to the coastal management program included an
attempt to streamline the standards by eliminating any standards
that already duplicated what other state and federal agencies
did. Therefore, changing the threshold and eliminating
duplication, OHMP has less on which to comment under the habitat
standard.
9:59:10 AM
REPRESENTATIVE EDGMON commented that with budget cuts and the
need to move development projects forward while protecting
fisheries, the two departments should be merged. He said that
although he is saying it facetiously, he recalls being a former
employee of an agency and that departments have different
missions and cultures. Furthermore, there isn't a regulation or
statute that doesn't carry a certain amount of discretion while
upholding the process. Representative Edgmon opined, "I find it
hard to believe that ... the habitat division has the same
makeup or the same outlook in the Department of Natural
Resources as it would in the Department of Fish & Game."
Furthermore, the division is physically located in a different
place and thus doesn't interact with the directors of the
divisions within ADF&G as before. The division is now
interfacing with department employees, many of which are
political employees whose background is in the industry and
whose mission it is to make natural resource development take
place. He reiterated that there have to be some differences.
With regard to earlier statements regarding the governor's
position, Representative Edgmon related his understanding that
Governor Palin will revisit the decision to house the division
within DNR after a year has elapsed.
MS. HOWARD noted that in the past there has been the notion to
merge all three resource agencies, on which point she deferred
to the legislature. She then pointed out that over half of the
area offices [of OHMP] are located within ADF&G buildings.
10:03:06 AM
REPRESENTATIVE LEDOUX asked if, either when the division was
under ADF&G or DNR, the public was able to receive internal
memorandums in regard to particular projects. She posed a
scenario in which the commissioners of ADF&G and DNR disagreed
with each other, and asked if that would be open to the public.
MS. HOWARD answered that everything OHMP does is available to
the public. Although all state agencies have the ability to
have certain things that are deliberative confidential, that
doesn't enter the realm of the permitting world, she said. In
fact, [OHMP] routinely copies whoever wants to be copied on any
permit comments or decisions. The ADF&G always receives a copy
of everything OHMP writes.
10:04:29 AM
REPRESENTATIVE JOHNSON recalled prior testimony that indicated
permits were issued and only the permitter and the permittee
knew about it and that there wasn't public testimony or notice.
He asked if the aforementioned actually happens.
MS. HOWARD said that Title 41, under which OHMP operates,
doesn't have a public notice requirement which was the case
under the former habitat division, Title 16. However, that
doesn't mean that the public can't obtain documents or aren't
made aware of them.
10:05:43 AM
JOHN BITNEY, Legislative Liaison, Governor's Legislative Office,
Office of the Governor, returned attention to the letter from
Governor Palin to the chair of the Board of Fisheries, dated
February 8, 2007. To clarify the letter, he stated that despite
this letter, the governor is concerned about habitat protection.
When Governor Palin took office, some of the acting
commissioners were charged with reviewing options and making
recommendations regarding the best course of options. The
following three options were presented to the governor for
consideration: the status quo, evaluate the MOU and place it in
review between DNR and [ADF&G], or return the habitat division
back to ADF&G. The governor chose to keep the habitat division
at DNR, but asked the departments to review the MOU in order to
evaluate what changes are necessary to improve interagency
cooperation. The aforementioned could be done over the course
of a few weeks or months and include some outreach to the
stakeholders and interested parties. Mr. Bitney related that
although the governor is sympathetic to the concerns regarding
the move to DNR, she also recognizes that simply moving offices
back and forth is disruptive. The governor, he further related,
is willing to review the protection issues and reconsider
anything necessary following a full review of the MOU.
10:10:51 AM
CHAIR SEATON asked if, regardless of the fate of HB 41, there is
a timeframe that limits the governor's authority to change the
departments by EO.
MR. BITNEY said that's his understanding.
10:11:45 AM
REPRESENTATIVE HOLMES asked if the governor's office is making
any particular request as to how the committee treats HB 41.
MR. BITNEY reiterated that if more information comes to light,
the governor's office will remain open. He further reiterated
that the governor doesn't want to be disruptive.
10:13:06 AM
CHAIR SEATON announced that HB 41 would be held for further
testimony and committee discussion.
10:13:28 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 10:13
a.m.
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