Legislature(2017 - 2018)GRUENBERG 120

01/23/2018 10:00 AM FISHERIES

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10:01:42 AM Start
10:02:53 AM HB199
11:25:07 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 199 FISH/WILDLIFE HABITAT PROTECTION; PERMITS TELECONFERENCED
Heard & Held
Introduction of Committee Substitute
                    ALASKA STATE LEGISLATURE                                                                                  
              HOUSE SPECIAL COMMITTEE ON FISHERIES                                                                            
                        January 23, 2018                                                                                        
                           10:01 a.m.                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Louise Stutes, Chair                                                                                             
Representative Jonathan Kreiss-Tomkins                                                                                          
Representative Geran Tarr                                                                                                       
Representative Mike Chenault                                                                                                    
Representative David Eastman                                                                                                    
Representative Mark Neuman                                                                                                      
Representative Zach Fansler                                                                                                     
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Bryce Edgmon                                                                                                     
Representative Dan Ortiz                                                                                                        
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 199                                                                                                              
"An Act establishing general fish  and wildlife permits and major                                                               
and   minor  anadromous   fish   habitat   permits  for   certain                                                               
activities; establishing  related penalties; and relating  to the                                                               
protection of fish and game and fish and game habitat."                                                                         
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 199                                                                                                                  
SHORT TITLE: FISH/WILDLIFE HABITAT PROTECTION; PERMITS                                                                          
SPONSOR(s): REPRESENTATIVE(s) STUTES                                                                                            
                                                                                                                                
03/27/17       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/27/17       (H)       FSH, RES                                                                                               
04/11/17       (H)       FSH AT 10:00 AM GRUENBERG 120                                                                          
04/11/17       (H)       -- Delayed to 4/12/17 at 6:00 PM --                                                                    
04/12/17       (H)       FSH AT 6:00 PM GRUENBERG 120                                                                           
04/12/17       (H)       -- Delayed from 4/11/17 --                                                                             
01/18/18       (H)       FSH AT 10:00 AM GRUENBERG 120                                                                          
01/18/18       (H)       -- MEETING CANCELED --                                                                                 
01/23/18       (H)       FSH AT 10:00 AM GRUENBERG 120                                                                          
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
MATT GRUENING, Staff                                                                                                            
Representative Louise Stutes                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:   Provided a  proposed committee  substitute                                                             
("Version N")  and answered  questions during  the hearing  on HB                                                               
199, on behalf of Representative Stutes, prime sponsor.                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                              
10:01:42 AM                                                                                                                   
                                                                                                                                
CHAIR  LOUISE  STUTES  called  the  House  Special  Committee  on                                                             
Fisheries meeting to  order at 10:01 a.m.   Representatives Tarr,                                                               
Eastman,  Neuman,  Kreiss-Tomkins,   Chenault,  and  Stutes  were                                                               
present at the call to  order.  Representative Fansler arrived as                                                               
the meeting was in progress.                                                                                                    
                                                                                                                                
        HB 199-FISH/WILDLIFE HABITAT PROTECTION; PERMITS                                                                    
                                                                                                                                
10:02:53 AM                                                                                                                   
                                                                                                                                
CHAIR STUTES announced  that the only order of  business would be                                                               
HOUSE  BILL  NO.  199  "An  Act  establishing  general  fish  and                                                               
wildlife  permits and  major and  minor  anadromous fish  habitat                                                               
permits for  certain activities; establishing  related penalties;                                                               
and relating  to the  protection of  fish and  game and  fish and                                                               
game habitat."                                                                                                                  
                                                                                                                                
CHAIR STUTES stated  that as the first order of  business for the                                                               
year, the  committee will be  introducing a  committee substitute                                                               
(CS) for HB  199.  She said  that she is aware that  the bill has                                                               
generated a  lot of discussion  and interest, and she  is excited                                                               
to continue the  discussion.  She pointed out  that the committee                                                               
worked quite  a bit on  the bill  over the interim,  engaging the                                                               
administration,  industry, municipalities,  and other  interested                                                               
stake  holders to  address concerns  and suggestions.   She  said                                                               
that  as a  result  [of  those efforts]  many  changes have  been                                                               
incorporated  into the  new CS.   She  said that  she thinks  the                                                               
committee will find  the bill has been  significantly narrowed in                                                               
scope  compared to  the  version  in committee  last  year.   She                                                               
admitted that there will likely be  many more changes to the bill                                                               
and  that  her intent  is  to  hold  multiple hearings  and  hear                                                               
testimony from industries,  the administration, salmon advocates,                                                               
and other interested  entities so that the  public process shapes                                                               
this legislation.  She encouraged  all stake holders to engage in                                                               
this process so  there can be a true  balance between responsible                                                               
development  and protecting  the salmon  resource that  Alaskan's                                                               
hold dear.   She said she would entertain a  motion to bring this                                                               
CS before the committee.                                                                                                        
                                                                                                                                
10:04:17 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  FANSLER moved  to  adopt  the proposed  committee                                                               
substitute  (CS)  for  HB   199,  Version  30-LS0438\N,  Bullard,                                                               
1/19/18,  as  a working  document.    There being  no  objection,                                                               
Version N was before the committee.                                                                                             
                                                                                                                                
10:05:49 AM                                                                                                                   
                                                                                                                                
MATT GRUENING, Staff, Representative  Louise Stutes, Alaska State                                                               
Legislature, presented  the changes made  to HB 199 on  behalf of                                                               
Representative Stutes, prime sponsor.   He began his presentation                                                               
by stating  that the old fiscal  notes had been removed  from the                                                               
bill  because  of  significant  changes.     He  said  the  prime                                                               
sponsor's staff  are awaiting new  fiscal notes and  expects them                                                               
to  show less  of an  impact.   He then  introduced the  document                                                               
titled "Summary  of Changes HB 199  Version J to N"  [included in                                                               
the  committee packet].    He explained  that  this document  was                                                               
organized  differently than  others because  there had  been five                                                               
drafts  of  the  bill  since  the committee  had  last  seen  it.                                                               
Wording in  the new  version is now  different and  many sections                                                               
were completely reordered.  He  said his approach to the document                                                               
was to identify a change  and then state when "conforming changes                                                               
were made throughout the bill."                                                                                                 
                                                                                                                                
MR.  GRUENING   stated  that  the   bill  creates   a  rebuttable                                                               
presumption that  certain areas  are anadromous fish  habitat and                                                               
that this presumption triggers the  Alaska Department of Fish and                                                               
Game's (ADF&G) authority to issue  fish habitat permits for those                                                               
areas.   He said  the bill also  creates a  two-tiered permitting                                                               
system  containing minor  and major  anadromous habitat  permits.                                                               
He also pointed out that there  has been a tendency for people to                                                               
focus on major anadromous habitat  permits, but approximately 70-                                                               
80 percent  of all  permits will  be in the  minor category.   He                                                               
said that a minor  permit can be issued on the  same day and that                                                               
this efficiency  will not be impacted  by the proposed bill.   He                                                               
also  said that  there is  an opportunity  for people  to request                                                               
reconsideration of a determination  on their permit applications.                                                               
However, reconsiderations may be  denied because the commissioner                                                               
typically  relies  on the  same  information  that he  used  when                                                               
making the initial determination.                                                                                               
                                                                                                                                
10:08:26 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING continued  his synopsis  of the  bill by  restating                                                               
that most  permits will be in  the minor permit category,  and he                                                               
added that the category determination  depends on the presence or                                                               
absence of "significant adverse effects."   He said that he would                                                               
go over that issue where it  is specifically defined in the bill.                                                               
He  summarized   by  saying  that  HB   199  creates  enforceable                                                               
standards  and  an increase  in  public  process -  two  specific                                                               
issues  in  the  letter  from  the  Board  of  Fisheries  to  the                                                               
legislature.   He  pointed  out that  current  Title 16  statutes                                                               
state that the  commissioner shall not issue a permit  if it does                                                               
not ensure  proper protection of  fish and game;  however, proper                                                               
protection of fish and game  is not currently defined in statute.                                                               
He  also  said  the  parts  of the  proposed  bill  dealing  with                                                               
"significant adverse  effects" and "permits and  mitigation" were                                                               
the "meat" of the enforceable standards language.                                                                               
                                                                                                                                
MR. GRUENING pointed out that  for minor permits, a determination                                                               
by the commissioner must be  posted online and include the reason                                                               
for the  determination.  He  said this requirement was  a product                                                               
of  the  desire  to  create  better  public  process  in  habitat                                                               
permitting.                                                                                                                     
                                                                                                                                
MR.  GRUENING stated  that major  permits will  include a  30-day                                                               
public  comment  period,  and   that  although  this  requirement                                                               
worried some  individuals, it pertains  to an issue the  Board of                                                               
Fisheries requested in  its letter to the legislature.   As such,                                                               
he said  it was appropriate  to include better public  process; a                                                               
process  that  would  allow  opportunity   to  address  local  or                                                               
regional concerns,  as well as  concerns from  individuals acting                                                               
on their own.                                                                                                                   
                                                                                                                                
10:10:24 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE NEUMAN asked if there  was a way for the committee                                                               
to  look at  the current  regulations, to  better understand  the                                                               
differences created by the proposed bill.                                                                                       
                                                                                                                                
MR.  GRUENING responded  by saying  that he  can provide  a brief                                                               
synopsis  of  the types  of  permits,  types of  activities,  and                                                               
waterbodies, but for detailed explanations  he would defer to the                                                               
people available  online.  Nonetheless,  he said  ADF&G basically                                                               
uses  an "841  permit," which  falls  under the  Fishway Act,  AS                                                               
16.05.841.                                                                                                                      
                                                                                                                                
10:11:34 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE NEUMAN suggested  to Chair Stutes that  he go over                                                               
this  information  with  staff  at  a  different  time  to  avoid                                                               
interrupting the day's schedule.                                                                                                
                                                                                                                                
10:14:09 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  began his  presentation of  the Summary  of Changes                                                               
document with the changes in the  bill title, on page 1, lines 1-                                                               
3, in Version  N.  He said  lines 1-2 in the  previous version of                                                               
the  bill included  the language,  "An  act establishing  general                                                               
fish and wildlife permits and  major and minor anadromous permits                                                               
for  certain  activities";  however,  in  Version  N  the  phrase                                                               
"general fish  and wildlife permits"  was deleted.  He  said that                                                               
this  change  occurred  because  the  former  "general  fish  and                                                               
wildlife  permit" has  been  relocated  as a  subset  of the  new                                                               
"minor andadromous permit".  He  also said the terms "other fish"                                                               
and "wildlife"  were removed throughout  the bill because  it was                                                               
Chair Stutes  intent that HB 199  be an anadromous fish  Act.  He                                                               
stated  that comments  from industry  and stakeholders  indicated                                                               
that the term  "wildlife" was vague.  He said  that while most of                                                               
these  changes  have  been  made  to Version  N,  there  are  two                                                               
locations where these terms have not  yet been removed.  The term                                                               
"other fish"  is on  page 14,  line 21,  and "wildlife"  is still                                                               
present on page 14, lines 23 and 24.                                                                                            
                                                                                                                                
10:16:06 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  said that he  identified all other  instances where                                                               
"other  fish"  and "wildlife"  were  removed  from the  bill,  so                                                               
committee  members could  form their  own opinions  based on  the                                                               
context in which they are used.                                                                                                 
                                                                                                                                
MR.  GRUENING said  that the  phrase "relating  to fishways"  was                                                               
added  to the  title as  a  housekeeping measure  to reflect  the                                                               
proposed  repeal of  AS 16.05.851.   As  an existing  statute, AS                                                               
16.05.851  provides an  exception  to a  Fishway Act  requirement                                                               
that the  commissioner be notified  when a dam or  obstruction is                                                               
placed  in a  fish  bearing stream  [and a  fish  pass is  deemed                                                               
impractical].   The exception  allows a lump  sum payment  to the                                                               
state's  Fish and  Game  Fund and  establishment  or increase  of                                                               
onsite  or offsite  hatchery production.    He said  there is  no                                                               
intent for  HB 199 to  allow a  situation where people  could pay                                                               
money or  start a hatchery  if they  blocked fish passage.   [The                                                               
proposed repeal of the AS  16.05.851 is both the previous version                                                               
of the  bill and the current  Version N.  The  language "relating                                                               
to fishways"  was added only to  Version N.  In  both versions of                                                               
the bill, AS 16.05.861 has  been amended to remove the references                                                               
to AS 16.05.851 found on page 1, lines 8-9 and lines 13-14.]                                                                    
                                                                                                                                
10:17:55 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  said the final change  to the title was  removal of                                                               
the phrase "relating to the  protection of fish and game habitat"                                                               
and replacing it  with "relating to the  protection of anadromous                                                             
fish and  other fish  habitat."   This change  occurs on  page 1,                                                             
lines 2-3  of Version  N.   He said  this remaining  reference to                                                               
"other fish" and "wildlife" will be  removed from the title if it                                                               
is the committee's intent to do so.                                                                                             
                                                                                                                                
REPRESENTATIVE NEUMAN suggested that  there be further discussion                                                               
at  a later  date on  the removal  of the  language dealing  with                                                               
"other fish" and "wildlife", because  of impacts to other aspects                                                               
of the ecosystem, including plants.                                                                                             
                                                                                                                                
10:18:52 AM                                                                                                                   
                                                                                                                                
MR GRUENING  moved on to  the next  set of changes  identified in                                                               
the Summary  of Changes document, at  16.051.871 Determination of                                                               
anadromous  fish habitat.   He  first identified  the changes  in                                                               
16.05.871(a) located  on page  2, lines  2-4, of  Version N.   He                                                               
began by  saying that the  previous version of the  bill required                                                               
the commissioner  to specify in  regulation the "water  bodies or                                                               
portions  of them"  that are  important anadromous  fish habitat,                                                               
including the  waters that are  covered under the  presumption in                                                               
16.05.871(c) of Version N.   16.05.871(a) now designates "rivers,                                                               
lakes,  and streams",  instead of  "water bodies  or portions  of                                                               
them", as  the types  of waters  the commissioner  must identify.                                                               
He said that this was  existing language from AS 16.05.871(a) and                                                               
was consistent  with waters already  cataloged.  He  reminded the                                                               
committee that  conforming changes were made  throughout the bill                                                               
to reflect this.                                                                                                                
                                                                                                                                
10:20:43 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING said  that the  term "important"  was removed  from                                                               
16.05.871(a) in the previous version  of the bill because its use                                                               
in  describing  "anadromous  fish habitat"  created  a  potential                                                               
loophole  that  could  allow  individuals  to  avoid  the  permit                                                               
requirement.  Removal of the  word "important" recognized that an                                                               
area would either  be specified as anadromous fish  habitat or it                                                               
would  not.   He noted  that this  change was  the will  of prime                                                               
sponsor  and that  conforming changes  were  made throughout  the                                                               
bill.                                                                                                                           
                                                                                                                                
10:21:25 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR asked  if there would be a  conflict with the                                                               
Anadromous Fish Catalog if this new language is adopted.                                                                        
                                                                                                                                
MR. GRUENING  said that he  is not  100 percent sure  about this,                                                               
but  said he  believed that  this process  will include  changing                                                               
language in  the Catalog.   Mr. Gruening  said that  the drafters                                                               
also asked if the waters in  the catalog were to be revisited, to                                                               
determine what  is and is not  important.  However, he  said that                                                               
there was  no intent  to revisit waters  currently listed  in the                                                               
catalog.                                                                                                                        
                                                                                                                                
10:22:28 AM                                                                                                                   
                                                                                                                                
MR. GRUENING continued  to the next set of  changes identified in                                                               
the Summary of Changes document,  located at 16.05.871(b) on page                                                               
2,  lines  5-13,  of  Version  N.   He  said  that  the  previous                                                               
subsection (b) was  deleted and a new subsection  was inserted to                                                               
clarify  when  the  department  should  conduct  a  site-specific                                                               
determination  to  determine  if  a river,  lake,  or  stream  is                                                               
anadromous.  In addition, it was  not clear in the previous draft                                                               
who  would make  the request  for  a determination,  the type  of                                                               
information required  to support the  department's determination,                                                               
or how the site-specific determination  relates to the anadromous                                                               
waters presumption.                                                                                                             
                                                                                                                                
10:23:12 AM                                                                                                                   
                                                                                                                                
MR. GRUENING said  that this change was for the  point of clarity                                                               
and to  spell out the  process in greater  detail.  He  also said                                                               
that   the   new   wording   requires   that   the   department's                                                               
determination  be  posted on  the  state's  online public  notice                                                               
system.                                                                                                                         
                                                                                                                                
10:23:30 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  NEUMAN pointed  out that  a determination  by the                                                               
commissioner  should be  based on  specific standards.   He  said                                                               
that without  standards "you have  nothing to identify by"  and a                                                               
determination could change with different commissioners.                                                                        
                                                                                                                                
10:23:55 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING  responded  by  saying that  the  bill  spells  out                                                               
standards for the  commissioner to base a  determination and that                                                               
he could explain this when  he presents the sectional analysis to                                                               
the committee.                                                                                                                  
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the Summary  of Changes document  at 16.05.871(c), found  on page                                                               
2, lines 14-23 of Version N.   He pointed out that he had already                                                               
mentioned one element of this  modification, that waters presumed                                                               
to  be  anadromous  were narrowed  from  "permanent  or  seasonal                                                               
surface  water bodies"  in the  previous version  of the  bill to                                                               
"rivers, lakes,  and streams"  in Version N.   Rivers,  lakes and                                                               
streams presumed  to be anadromous  were further narrowed  by the                                                               
requirement  that they  be  connected to  waters  already in  the                                                               
Anadromous  Waters  Catalog.    He  said  it  is  a  common-sense                                                             
approach to presume  an area is anadromous if it  is connected to                                                               
an area  that has  already been  designated as  being anadromous.                                                               
He  said the  exception  to  this would  occur  when  there is  a                                                               
barrier, such  as a waterfall,  that prevents fish  from entering                                                               
the area  in question.   In  such cases,  waters upstream  of the                                                               
barrier would be  excluded from the presumption  and waters below                                                               
the  barrier would  be  included.   He  then provided  additional                                                               
detail on this change, stating  that the new presumption language                                                               
mirrors that which  currently exists in the  Forest Resources and                                                               
Practices Act  (FRPA), with  the exception that  the FRPA  uses a                                                               
stream gradient  to define  a barrier  to upstream  fish passage.                                                               
He added  that under the  FRPA, a  stream gradient must  be eight                                                               
percent or greater to be considered a barrier to fish passage.                                                                  
                                                                                                                                
10:26:04 AM                                                                                                                   
                                                                                                                                
MR. GRUENING said that use of  the FRPA gradient of eight percent                                                               
was rejected because  recent scientific data shows  fish can swim                                                               
upstream  in  gradients  that  exceed  eight  percent;  coho  and                                                               
chinook have been  observed swimming upstream in  gradients of 10                                                               
to 12 percent.                                                                                                                  
                                                                                                                                
REPRESENTATIVE TARR  asked if  the permanent  barrier could  be a                                                               
natural or a man-made barrier.                                                                                                  
                                                                                                                                
MR.  GRUENING said  a barrier  could  be man-made,  but it  would                                                               
require a "major"  permit.  He concluded by saying  the answer to                                                               
Representative Tarr's question would be "yes and no."                                                                           
                                                                                                                                
REPRESENTATIVE  KREISS-TOMKINS  stated   his  understanding  that                                                               
downstream  of   a  permanent  barrier  there   is  a  rebuttable                                                               
presumption [that  the area is  anadromous], and above  a barrier                                                               
it is assumed that the waters  are not anadromous.  He then asked                                                               
if there  was a  mechanism to  catalog an  area as  anadromous if                                                               
fish are found  above what was initially thought to  be a barrier                                                               
to fish passage.                                                                                                                
                                                                                                                                
MR. GRUENING  said that mechanism  is not currently in  the bill;                                                               
however, it  does exist  in the current  permitting process.   He                                                               
said that ADF&G can make  an anadromous determination if fish are                                                               
discovered during  any permitting project.   He said that  he has                                                               
given this issue  some thought and thinks it is  "a little bit of                                                               
a gray area" in the bill.                                                                                                       
                                                                                                                                
10:28:11 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  KREISS-TOMKINS  asked  for  confirmation  on  his                                                               
understanding that this change "in  a certain sense goes backward                                                               
from the status quo just above these permanent barriers."                                                                       
                                                                                                                                
MR.  GRUENING  said  that  this is  correct,  although  the  FRPA                                                               
currently has  that presumption, and  that it applies  only above                                                               
the barrier.  He said that  one difference between HB 199 and the                                                               
FRPA, regarding barriers,  is that the language in  HB 199 refers                                                               
to a  "permanent physical barrier."   He  also said the  issue of                                                               
what constitutes a physical barrier is  not clear, as it may, for                                                               
example,  be a  beaver dam  that  may not  completely block  fish                                                               
passage  and may  not exist  from  year to  year.   He said  that                                                               
"Other  than what  applies  to the  FRPA,  that presumption  does                                                               
exist, but not for these types of permits right now."                                                                           
                                                                                                                                
REPRESENTATIVE  NEUMAN  asked how  the  issue  of barriers  would                                                               
affect  dams  that   are  used  by  communities   for  water  and                                                               
electricity.                                                                                                                    
                                                                                                                                
MR. GRUENING  responded by saying  that this question  relates to                                                               
Representative Tarr's question  regarding natural versus man-made                                                               
barriers.   He said that he  thinks the type of  physical barrier                                                               
needs to  be fine-tuned in  the bill.   He added that  although a                                                               
permit would be required  for a dam, it is not  the intent of the                                                               
proposed legislation to  permit a dam project  and then establish                                                               
the waters above the dam as  no longer being anadromous.  He said                                                               
that  the  Representative Neuman's  point  was  well taken.    He                                                               
acknowledged  there needs  to be  a distinction  for this  in the                                                               
bill and  suggested the  committee could  consider the  issue "in                                                               
the next round."                                                                                                                
                                                                                                                                
10:30:22 AM                                                                                                                   
                                                                                                                                
MR. GRUENING pointed out that  16.05.871(c), on page 2, lines 14-                                                               
23,  in Version  N states  that the  presumption includes  "lands                                                               
beneath"  anadromous   rivers,  lakes,  and  streams,   and  this                                                               
language was not included in the  previous draft.  He stated that                                                               
it  should be  clear that  the  bed of  a  river is  part of  the                                                               
anadromous  fish  habitat  given  that  it is  the  site  of  egg                                                               
deposition.                                                                                                                     
                                                                                                                                
MR. GRUENING continued  to the next set of  changes identified in                                                               
the Summary  of Changes document,  found in 16.05.871(d)  on page                                                               
2,  lines 24-26,  in  Version N.   He  said  this new  subsection                                                               
states  that the  presumption  established  under 16.05.871(c)  -                                                               
that certain rivers, lakes, streams,  the lands beneath them, and                                                               
adjacent  riparian  areas  are   anadromous  fish  habitat  -  is                                                               
applicable only to  AS 16.05.871-901.  He said this  was added to                                                               
clarify  that  the  presumption  applies  only  to  fish  habitat                                                               
permitting law.   He said there  was a concern among  the fishing                                                               
community that the bill would  affect the regulatory authority of                                                               
the Board  of Fisheries regarding  fishery openings  and closures                                                               
near salmon streams.  However,  an opinion from the Department of                                                               
Law eliminates this concern.  He  reiterated that HB 199 does not                                                               
affect  commercial, subsistence,  or any  other type  of fishing.                                                               
He  said that  the Department  of  Law's opinion  is specific  to                                                               
fishery openings and closures, but  there is another "fix" in the                                                               
bill that addresses the concern  that someone might need a permit                                                               
to  fish recreationally  in a  river.   He said  that these  were                                                               
technical  aspects  of the  bill  but  they close  loopholes  and                                                               
ensure that the bill does not  pertain to fishing as an impact to                                                               
fish.                                                                                                                           
                                                                                                                                
10:32:31 AM                                                                                                                   
                                                                                                                                
MR. GRUENING continued  to the next set of  changes identified in                                                               
the  Summary  of Changes  document,  found  in Sec.  16.05.871(e)                                                               
paragraphs (1)-(3), in  Version N.  These changes  are located on                                                               
page 2, line  28 through page 3,  line 3.  He  described these as                                                               
structural changes intended to provide greater clarity.                                                                         
                                                                                                                                
MR.   GRUENING   stated   that  16.05.871(e)(1)   maintains   the                                                               
requirement that  all waters  identified under  16.05.871(a) will                                                               
continue to be listed in the Anadromous Waters Catalogue.                                                                     
                                                                                                                                
MR. GRUENING stated that  16.05.871(e)(2) requires the department                                                               
to develop  regulations for conducting the  site-specific reviews                                                               
and determinations under 16.05.871(b).   He added that anyone can                                                               
request  a  site-specific determination  from  ADF&G  on an  area                                                               
presumed  to  be   anadromous.    He  said  this   means  that  a                                                               
presumption  of an  area  being anadromous  habitat  "is not  the                                                               
final word."                                                                                                                    
                                                                                                                                
MR. GRUENING  stated that 16.05.871(e)(3) allows  ADF&G to define                                                               
in regulation the  scope of the adjacent riparian  areas that are                                                               
considered  anadromous fish  habitat.   He  said  that it  seemed                                                               
unusual  that ADF&G  cannot currently  specify in  regulation, or                                                               
define, riparian  areas important  to streams  already catalogued                                                               
as anadromous waters.  That  authority currently resides with the                                                               
Department of Natural Resources  (DNR); therefore, there would be                                                               
overlapping authority  between the two departments  on this issue                                                               
if the proposed  language is adopted.  He  said biologists should                                                               
probably be the ones making  this determination.  In addition, he                                                               
said that  for purposes  of expediency,  the applicant  would not                                                               
have to go  to DNR and initiate an additional  process to request                                                               
a riparian area be reserved for  the protection of fish.  He said                                                               
that giving  ADF&G the authority  to designate riparian  areas as                                                               
anadromous habitat  would create a direct  connection between the                                                               
biologists  and  their  ability   to  accomplish  their  task  of                                                               
protecting fish.                                                                                                                
                                                                                                                                
10:34:50 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR  recognized that they did  not currently have                                                               
fiscal  notes  before  them  but  said  she  would  like  to  see                                                               
information in  the fiscal  notes regarding  the number  of site-                                                               
specific  evaluations   that  might  occur  given   the  proposed                                                               
language in 16.05.871(e)(2) of Version N.                                                                                       
                                                                                                                                
MR. GRUENING said  that he would get back  to Representative Tarr                                                               
on that matter  and make sure it is considered  when drafting the                                                               
fiscal note.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FANSLER  brought   attention  to  Mr.  Gruening's                                                               
statement that  overlapping authority  would exist  between ADF&G                                                               
and DNR under 16.05.871(e)(3) of  the proposed bill, and he asked                                                               
if Mr.  Gruening could provide  other examples  where overlapping                                                               
authority exists.                                                                                                               
                                                                                                                                
MR. GRUENING said  that based on his  discussions with biologists                                                               
and staff  at DNR and  the Department of Transportation  & Public                                                               
Facilities  (DOTPF), there  are  hardly any  projects that  don't                                                               
have overlapping authority.  He  added that because DOT, DNR, and                                                               
ADFG  consider  different  types  of lands  and  water  in  large                                                               
projects, they  work together to  complete segments  of different                                                               
permits.  He said that this  already occurs, but he would provide                                                               
a  specific  list of  permits  and  activities that  require  the                                                               
interaction of these three departments.                                                                                         
                                                                                                                                
REPRESENTATIVE  NEUMAN  noted  that  the Alaska  soil  and  water                                                               
conservation districts conducted a  lot of research and monitored                                                               
the quality of waterways.  He  wondered if "those folks" could be                                                               
included in discussions on the bill.                                                                                            
                                                                                                                                
10:37:28 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary of  Changes  document, found  at Sec.  16.05.871(f),                                                               
paragraphs (1) and (2), on page 3, lines 4-11, of Version N.                                                                    
                                                                                                                                
MR. GRUENING said Sec. 16.05.871(f)(1)  narrows the definition of                                                               
anadromous  fish habitat  and that  this reflects  the change  in                                                               
Sec. 16.05.871(a).   He said that this is repetition  of a change                                                               
he identified  earlier and that  it defines the waters  that fall                                                               
under the presumption of anadromous habitat.                                                                                    
                                                                                                                                
MR. GRUENING said that the  change at 16.05.871(f)(2) was a point                                                               
of much  debate.  It is  new language, which states  that a river                                                               
or stream includes the foreshore,  or intertidal, portion of that                                                               
river or  stream.  This  was included because it  could otherwise                                                               
be unclear where anadromous habitat  terminates in the downstream                                                               
portion of  a stream or river.   He said it  answers the question                                                               
of  whether the  habitat  would include,  for example,  estuarine                                                               
areas.   He  said  the proposed  language  might deserve  further                                                               
consideration, but it  seemed to meet the definition  of what was                                                               
intended.                                                                                                                       
                                                                                                                                
10:39:11 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary of  Changes document,  at Sec.  16.05.875 Anadromous                                                               
Fish Habitat  Permit.  These  changes are  found in Version  N on                                                               
page 3, line 12 through page 5, line 1.                                                                                         
                                                                                                                                
MR.  GRUENING said  Sec. 16.05.875(a),  on page  3, lines  13-16,                                                               
refers  to a  new  "general"  minor permit  that  can provide  an                                                               
exemption to the requirements  stated in 16.05.875(a), paragraphs                                                               
(1) and  (2).   He said that  the new general  minor permit  is a                                                               
blanket permit for certain types of  activities.  He said that it                                                               
is essentially for  rural areas where there may  be, for example,                                                               
an  all-terrain vehicle  (ATV) stream  crossing.   This authority                                                               
allows   the  commissioner,   without  an   existing  permit   or                                                               
application, to permit certain types  of activities under certain                                                               
conditions  on  a  regional  or   geographical  basis.    He  can                                                               
stipulate the conditions  under which the activity  may occur and                                                               
the mitigation  measures that  must be  taken.   The commissioner                                                               
may issue  such a  permit only  if it  does not  adversely affect                                                               
salmon  habitat.   He also  said  that the  general minor  permit                                                               
differs  from  the regular  minor  permit  in  that there  are  a                                                               
different set of standards regarding  the types of activities and                                                               
conditions that can be permitted.                                                                                               
                                                                                                                                
10:41:03 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  TARR  said  she  wanted a  clarification  on  the                                                               
difference between  the "general" minor permit  and the "regular"                                                               
minor  permit.   She stated  her understanding  that the  regular                                                               
minor permit  is also at  the discretion of the  commissioner and                                                               
that this new general permit is a "carve out" of a minor permit.                                                                
                                                                                                                                
MR. GRUENING responded  by saying yes and added  that the general                                                               
permit was not in  the previous version of the bill.   He said it                                                               
existed as the  general fish and wildlife permit,  but the intent                                                               
now is for a minor  general anadromous permit, which is different                                                               
in its standards in that it  does not require anyone to apply for                                                               
a permit.  He reiterated  his example of the commissioner issuing                                                               
a  regional or  geographic permit  for ATV  crossings in  a rural                                                               
area.    Regarding  the  differences  in  standards  between  the                                                               
general minor and  regular minor permits, he said  that a general                                                               
minor permit  is more  stringent, requires less  of an  impact to                                                               
habitat, and could require someone  to have written authorization                                                               
from the department prior to  engaging in the permitted activity.                                                               
He said it would not apply  in a situation where someone wanted a                                                               
"blanket permit to drill 20 wells" in an area.                                                                                  
                                                                                                                                
10:42:55 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  CHENAULT  pointed  out   that  Mr.  Gruening  had                                                               
mentioned "rural"  several times regarding  the use of  a general                                                               
permit,  and he  asked if  the general  permit could  be used  in                                                               
municipalities  such as  the Kenai  Peninsula, Matanuska-Susitna,                                                               
or Fairbanks North Star Boroughs.                                                                                               
                                                                                                                                
MR. GRUENING  answered yes and said  that he used rural  areas as                                                               
an  example  because that  is  where  the typical  concerns  were                                                               
present.   He said that  use of the  general minor permit  is not                                                               
regional or population specific and it can be applied anywhere.                                                                 
                                                                                                                                
REPRESENTATIVE CHENAULT reminded the  committee of Mr. Gruening's                                                               
point that the Forest Practices  Act has a different standard for                                                               
defining a  permanent barrier to  fish passage.   He asked  if it                                                               
would be possible  to have the different  statutes regarding this                                                               
issue agree with one another.                                                                                                   
                                                                                                                                
MR. GRUENING said that would be  up to the prime sponsor and that                                                               
this was more a question of  intent.  However, he stated that the                                                               
eight percent gradient in the  Forest Practices Act was viewed as                                                               
insufficient  by  the  sponsor.    He stated  that  he  would  be                                                               
reluctant to speak  to the Chair's intent on  that matter without                                                               
first discussing the matter with her.                                                                                           
                                                                                                                                
10:44:37 AM                                                                                                                   
                                                                                                                                
MR  GRUENING moved  on  to  the next  changes  identified in  the                                                               
Summary of  Changes document, at 16.05.875(a)  paragraphs (1) and                                                               
(2).   These changes are found  on page 3, line  12, through page                                                               
5,  line  1,  of  Version  N.   Mr.  Gruening  stated  that  Sec.                                                               
16.05.875(a) was  a significant change from  the previous version                                                               
of the  bill.  He said  that language in the  previous version of                                                               
the bill required  a person to obtain an  anadromous fish habitat                                                               
permit  before  conducting an  activity  that  "may use,  divert,                                                               
obstruct,  pollute,  or  otherwise   affect"  a  "water  body  or                                                               
portion"  that  was  specified  as  "important"  anadromous  fish                                                               
habitat.   The  new version  of this  section mirrors  wording in                                                               
current  statute   AS  16.05.871(b)   regarding  what   types  of                                                               
activities  would require  a permit.    The bill  now requires  a                                                               
person  to  obtain  an  anadromous  fish  habitat  permit  before                                                               
"constructing  a hydraulic  project that  uses wheeled,  tracked,                                                               
excavating,  or log-dragging  equipment in  the bed  of a  river,                                                               
lake,  or  stream"  or  "conducting  an  activity  that  has  the                                                               
potential  to  use,  divert, obstruct,  pollute,  or  change  the                                                               
natural flow or bed  of a river, lake, or stream"  if the area is                                                               
identified  or  presumed  to  be anadromous  fish  habitat.    He                                                               
reiterated  that this  language  stemmed from  an  effort to  not                                                               
"reinvent the  wheel" on the  types of activities that  require a                                                               
permit.  He said that this  change from the previous bill was not                                                               
related to a specific request but  was more related to the issues                                                               
of enforceable standards and public process.                                                                                    
                                                                                                                                
MR. GRUENING went  on to say that this  addresses another concern                                                               
he had  previously mentioned, that of  unintended activities such                                                               
as commercial or recreational fishing  requiring a permit because                                                               
they  may   be  loosely  interpreted   as  activities   that  may                                                               
"otherwise affect a  water body".  He said that  over the last 60                                                               
years,  the term  "use" has  not  been interpreted  such that  it                                                               
would include  commercial fishing;  therefore, it is  unlikely it                                                               
would be  in the future.   This was the reasoning  that went into                                                               
the  decision to  use existing  statutory language  in Version  N                                                               
when describing  the activities requiring a  fish habitat permit,                                                               
rather than the  language drafted in the previous  version of the                                                               
bill.  He said  that he wanted to make it  clear to everyone that                                                               
a lot of effort went into addressing this concern.                                                                              
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the Summary of  Changes document, found at  16.05.875(b), on page                                                               
3, line 30 through page 4, line 7 of Version N.                                                                                 
                                                                                                                                
MR. GRUENING referenced  the language in the  previous version of                                                               
the  bill,  Version J,  on  page  4,  lines 6-14,  regarding  the                                                               
requirement for  an application.   He  said Version  J referenced                                                               
16.05.883   regarding  the   requirements  for   an  application.                                                               
However,  16.05.875(b) under  Version N  references 16.05.883(a),                                                               
to  differentiate between  a  regular minor  permit  and the  new                                                               
general minor  anadromous permit, established  under 16.05.883(b)                                                               
of Version N,  which does not require an application  or a permit                                                               
and  has  separate  conditions  for   issuance.    He  said  that                                                               
conforming   changes,   consisting  of   inserting   16.05.883(a)                                                               
throughout Version  N, make it  clear that a reference  was being                                                               
made  to the  regular  minor  permit and  not  the general  minor                                                               
permit.                                                                                                                         
                                                                                                                                
10:48:20 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the Summary  of Changes document,  found at 16.05.875(f)  on page                                                               
4,  lines 25-30,  of  Version  N.   He  stated  that this  change                                                               
equates  to  the removal  of  the  30-day public  comment  period                                                               
associated with  the department's determination that  an activity                                                               
requires a  major anadromous  fish habitat  permit.   [The 30-day                                                               
comment  period   associated  with   the  issuance  of   a  major                                                               
anadromous  habitat permit  remains in  Version N  of the  bill.]                                                               
The comment period  for the determination was  removed because it                                                               
seemed cumbersome  and unnecessary  given that it  pertained only                                                               
to the determination and because  there would be a comment period                                                               
for  the issuance  of  the  permit itself.    He  added that  the                                                               
comment  period   was  removed   in  recognition   of  expediency                                                               
regarding development.                                                                                                          
                                                                                                                                
10:49:14 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR  pointed out  that the 30-day  comment period                                                               
would  occur  earlier  in  the process  than  any  other  comment                                                               
period.  She said that  this would provide an earlier opportunity                                                               
to identify concerns, and she asked if this was considered.                                                                     
                                                                                                                                
MR.  GRUENING responded  by  saying that  even  without a  30-day                                                               
comment period there  would still be an opportunity to  ask for a                                                               
reconsideration  of   a  determination.     He  added   that  the                                                               
commissioner can respond  to a reconsideration with  a denial and                                                               
that further reconsideration would have  to occur at the [Alaska]                                                               
Supreme Court.   He said  there is no opportunity  to continually                                                               
"stall out" a project.                                                                                                          
                                                                                                                                
10:50:55 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary  of  Changes   document  at  16.05.877  "Significant                                                               
adverse effects."  These changes  are implemented in Version N on                                                               
page 5, lines 2-23.                                                                                                             
                                                                                                                                
MR. GRUENING stated that the  language in the previous version of                                                               
the bill,  Version J, at  16.05.877(a)(1), consisting  of "impair                                                               
the  quality,  quantity,  or  flow,  of  water  necessary  for  a                                                               
waterbody to support  anadromous fish habitat", was  deleted.  He                                                               
said that similar  and more refined language now  appears in Sec.                                                               
16.05.877(a)(3)(A) and (a)(3)(B)  of Version N, on  page 5, lines                                                               
11-14.                                                                                                                          
                                                                                                                                
MR. GRUENING  stated that 16.05.877(a)(3)  of Version J  was also                                                               
deleted.    He said  that  language  had defined  a  "significant                                                               
adverse  effect" as  impairing "the  quality or  flow of  a water                                                               
body  that is  not anadromous  fish habitat  but is  necessary to                                                               
preserve the quality  or flow of a water body  that is anadromous                                                               
fish habitat".   He said  that the word "indirectly"  had already                                                               
been  removed  from   the  definition  and  this   seemed  to  be                                                               
consistent with that change.                                                                                                    
                                                                                                                                
MR.  GRUENING  said  that   16.05.877(a)(5)  under  the  previous                                                               
version of the  bill, Version J, was also deleted.   He said that                                                               
this  section  had  defined  a   significant  adverse  effect  as                                                               
"adversely affecting other  fish and wildlife that  depend on the                                                               
health and  productivity of  that anadromous  fish habitat".   He                                                               
said  that this  was consistent  with  the removal  of the  terms                                                               
"other fish" and  "wildlife" throughout the bill.   He reiterated                                                               
that while  "other fish" and  "wildlife" are not  unimportant, it                                                               
was the  intent of the prime  sponsor that this be  an anadromous                                                               
fish Act.                                                                                                                       
                                                                                                                                
10:52:45 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary of  Changes  document at  16.05.877(a)(1), found  in                                                               
Version N on  page 5, lines 6 and  7.  He stated that  this was a                                                               
new paragraph that defines a  "significant adverse effect" as one                                                               
that could interfere with the  spawning, rearing, or migration of                                                               
anadromous fish at  any life stage."  He said  that this language                                                               
comes from  an old draft regulation,  and that it speaks  more to                                                               
the biology of the fish than their  habitat.  He said there was a                                                               
desire to balance habitat with biology.                                                                                         
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary of  Changes  document at  16.05.877(a)(2), found  on                                                               
page  5, lines  8  and 9  of  Version N.   He  said  that in  the                                                               
previous version  of the bill,  the definition of  a "significant                                                               
adverse effect"  included one  that will  "impede or  prevent the                                                               
safe, timely,  and efficient upstream  and downstream  passage of                                                               
fish to  areas of  anadromous fish  habitat."   He said  this has                                                               
been narrowed  in the current version  to:  "impede the  safe and                                                               
efficient upstream  and downstream  passage of  anadromous fish".                                                               
He added that  this was a common-sense modification,  as the term                                                               
impede means to prevent.                                                                                                        
                                                                                                                                
10:54:12 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary of  Changes document,  at 16.05.877(a)(3),  found on                                                               
page  5, line  10, of  Version  N.   He indicated  that the  word                                                               
"significantly"  was structurally  added  so that  it applies  to                                                               
subparagraphs (A),  (B), and  (C).   The purpose  of this  was to                                                               
create  a higher  threshold that  would  avoid interpretation  of                                                               
something very minor as having a negative effect.                                                                               
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary  of  Changes document  at  Sec.  16.05.877(a)(3)(A),                                                               
found in  Version N, on page  5, lines 11  and 12.  He  said that                                                               
this is  a new  subparagraph that  defines a  significant adverse                                                               
effect  as  "significantly  impairing   water  quality  or  water                                                               
temperature  necessary to  support  anadromous fish."    It is  a                                                               
reduction in  the language  used in  the previous  bill regarding                                                               
significant adverse effects as it  removes language pertaining to                                                               
waters that are not anadromous habitat.                                                                                         
                                                                                                                                
10:55:24 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary  of  Changes document  at  Sec.  16.05.877(a)(3)(B),                                                               
located in Version  N on page 5,  lines 13 and 14.   He said that                                                               
this  is a  new  subsection that  defines  a significant  adverse                                                               
effect as "significantly reducing  instream flows or altering the                                                               
natural  flow regimes  necessary to  support anadromous  fish and                                                               
anadromous fish habitat."                                                                                                       
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the Summary  of Changes  document at  16.05.877(a)(3)(C), present                                                               
in Version N, on page 5, lines  15-17.  He said that the previous                                                               
version of the  bill was altered from  "reduce aquatic diversity,                                                               
productivity, stability, or  function" to "significantly diminish                                                               
the  overall  aquatic   diversity,  productivity,  stability,  or                                                               
function of all  or portions of a river, lake,  or stream that is                                                               
anadromous  fish  habitat."    He  said that  use  of  the  words                                                               
"overall" and  "significantly" raises  the threshold at  which an                                                               
effect becomes adverse.  He  added that the language, significant                                                               
adverse  effects,  does not  infer  that  a  permit will  not  be                                                               
issued;  it means  that  the  project calls  for  a major  permit                                                               
rather than a minor permit.                                                                                                     
                                                                                                                                
10:56:45 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the  Summary of  Changes  document at  16.05.877(a)(4), found  on                                                               
page 5, lines 18 and 19, of Version  N.  This is a new subsection                                                               
that   defines  a   significant  adverse   effect  as   "creating                                                               
conditions known to  have adverse effects on,  or cause increased                                                               
mortality of, anadromous  fish at any life stage."   He said that                                                               
this was another  effort to not focus only on  impacts to habitat                                                               
but to consider  impacts to the actual fish and  their biology as                                                               
well.  He  said that there may be instances  where fish are being                                                               
affected while there are no impacts to their habitat.                                                                           
                                                                                                                                
10:57:29 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to the  next set of changes  identified in                                                               
the Summary  of Changes document  at 16.05.883, found on  page 6,                                                               
line 18, through page  8, line 2, of Version N.   This portion of                                                               
the bill pertains to the minor anadromous fish habitat permit.                                                                  
                                                                                                                                
10:57:34 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  FANSLER   asked  Mr.  Gruening  to   revisit  the                                                               
statement Mr.  Gruening had just  made regarding new  language in                                                               
the current version of the  bill originating from previously used                                                               
definitions.  He asked if the  language Mr. Gruening was about to                                                               
explain to  the committee had a  similar origin or if  it was new                                                               
language.                                                                                                                       
                                                                                                                                
MR. GRUENING said that he didn't  know if the wording is the same                                                               
as what  had been used  in a previous draft,  as he did  not have                                                               
the draft document  with him.  However, he confirmed  that it was                                                               
language that had not been adopted in regulation.                                                                               
                                                                                                                                
10:58:36 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  FANSLER  said  he appreciated  hearing  when  new                                                               
language  is based  on a  prior draft  or document.   He  said he                                                               
would also  appreciate a follow-up,  in some manner, to  show the                                                               
committee the origin of previously used language.                                                                               
                                                                                                                                
MR. GRUENING said that there were  many revisions to the bill and                                                               
that is why he did not have this type of information on hand.                                                                   
                                                                                                                                
10:59:07 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  CHENAULT  pointed  out   that  Mr.  Gruening  had                                                               
indicated  that   some  language   had  come  from   prior  draft                                                               
regulations, and  he said he  would be interested to  learn where                                                               
they  originated and  why they  were  not put  forth in  previous                                                               
legislation or regulations.                                                                                                     
                                                                                                                                
MR. GRUENING stated that he would provide this information.                                                                     
                                                                                                                                
10:59:41 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING  returned to  his  explanation  of the  changes  at                                                               
16.05.883 regarding minor anadromous  fish habitat permits, found                                                               
on  page 6,  line 18-page  8,  line 2,  of  Version N.   He  said                                                               
subsections (b)-(g) give the commissioner  the authority to issue                                                               
a  general  minor  anadromous  fish   habitat  permit  for  minor                                                               
activities  under  certain  conditions.   Most  of  the  language                                                               
existed  in the  previous version  of the  bill but  that it  was                                                               
under the  general "fish  and wildlife" permit  section.   It has                                                               
now been  renamed as the  "general minor anadromous  fish habitat                                                               
permit."   He said that, as  referenced in the title  change, the                                                               
terms  "other fish"  and "wildlife"  were  removed, leaving  only                                                               
references  to "anadromous  fish"  throughout this  section.   He                                                               
said  there were  also several  changes to  the conditions  under                                                               
which the commissioner may issue  a general minor anadromous fish                                                               
habitat permit and he went on to explain these to the committee.                                                                
                                                                                                                                
MR. GRUENING  began his explanation  of 16.05.883,  at subsection                                                               
(b), paragraph (1), found on page  6, lines 23 and 24, of Version                                                               
N.    He  said  that  in   the  previous  version  of  the  bill,                                                               
16.05.873(b)(1) contained the language,  "the activity, singly or                                                               
in  combination with  other factors,  poses  little potential  to                                                               
significantly affect  fish and wildlife  habitat."  He  said that                                                               
in Version N, 16.05.883(b)(1) states  that "the activity will not                                                               
cause significant  adverse effects  to anadromous  fish habitat."                                                               
He said  that the  reference to "other  factors" in  the previous                                                               
version  implied that  there might  be something  other than  the                                                               
primary  activity   involved  in   the  impact,  and   it  seemed                                                               
appropriate to  "dial that down."   He also said that  it did not                                                               
seem necessary  to distinguish between  activities singly  and in                                                               
combination,  because it  is understood  that there  may be  more                                                               
than one activity involved under a  general permit.  He said that                                                               
this was  a simplification  and an  attempt to  avoid identifying                                                               
"other factors" that  don't have anything to do  with the primary                                                               
activity under consideration.                                                                                                   
                                                                                                                                
11:01:54 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING  identified  the  next change  in  the  Summary  of                                                               
Changes document as  a deletion from the previous  version of the                                                               
bill, on  page 2, line 28.   It consisted of  language specifying                                                               
that a general permit could only  be issued if "the activity does                                                               
not relate  to industrial  development".  He  said that  this was                                                               
deleted because  industrial development  was difficult  to define                                                               
and because there  may be instances where  the commissioner would                                                               
want  to   issue  a  permit   that  was  related   to  industrial                                                               
development yet still not significantly  or adversely affect fish                                                               
habitat.  He  said there did not appear to  be an opportunity for                                                               
any  loopholes with  this change,  as  activities that  adversely                                                               
affect  anadromous  habitat  could  not  be  allowed  under  this                                                               
permit.   He  said that  this was  a "clean-up"  that allows  the                                                               
commissioner some  discretion in how blanket  permits are issued,                                                               
and it lends toward not overly hampering development.                                                                           
                                                                                                                                
11:02:52 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  continued with  his explanation  of the  Summary of                                                               
Changes document, moving  on to 16.05.881(d) on page  7, lines 8-                                                               
15, of  Version N.   He said the  language on  lines 8 and  9 was                                                               
added  to  allow  the  commissioner   to  "issue  a  regional  or                                                               
geographical authorization  for an activity subject  to a general                                                               
minor permit."   The  commissioner may also  require a  person to                                                               
"obtain  written  authorization  from   the  department."    This                                                               
language provides discretion for  the commissioner to say whether                                                               
the permit  will be  a regional/geographical  permit or  if there                                                               
will be  a requirement to  obtain written authorization  from the                                                               
department.                                                                                                                     
                                                                                                                                
MR.  GRUENING continued  with the  Summary  of Changes  document,                                                               
moving on  to 16.05.883(g) of Version  N, on page 8,  lines 1 and                                                               
2.  He  said that this subsection is new;  it is seen "throughout                                                               
the  bill"; and  was  added  to clarify  that  the definition  of                                                               
"anadromous  fish habitat"  is consistent  with the  rest of  the                                                               
bill.                                                                                                                           
                                                                                                                                
11:03:50 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  continued with  his explanation  of the  Summary of                                                               
Changes  document, at  16.05.885 "Major  anadromous fish  habitat                                                               
permit", found on page 8 of Version  N.  He said the first change                                                               
under this section was at subsection  (b), on page 8, lines 23-28                                                               
of Version N.  He said  that the previous subsection was deleted,                                                               
and  a  new subsection  was  inserted.    He  said that  the  new                                                               
language  requires the  commissioner or  an applicant  to collect                                                               
the needed information for the  commissioner to determine whether                                                               
a  proposed activity  should be  permitted  as a  minor or  major                                                               
anadromous  permit.     He  said   that  it  also   provides  the                                                               
commissioner, at his/her discretion,  with the ability to recover                                                               
fees equal to  the cost incurred by the  department in collecting                                                               
the  necessary  information  to   make  the  determination  under                                                               
subsection (a) of this section.   Previously, this subsection had                                                               
required  the applicant  to  collect the  information.   The  new                                                               
language  under Version  N  states that  ADF&G  will collect  the                                                               
necessary information and  may, as opposed to  shall, recover the                                                               
cost  of  doing   so.    He  said  the  new   language  was  less                                                               
prescriptive and  provided more  flexibility with  the permitting                                                               
process.                                                                                                                        
                                                                                                                                
11:04:54 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE NEUMAN said that the  bill seemed to be giving the                                                               
commissioner more  discretionary authority  over issuance  of the                                                               
permits.    He said  he  sees  a  need  for a  structure  because                                                               
decisions can change  politically or for other reasons.   He said                                                               
he would  like to see "something  in there that defines  that, so                                                               
that,  whether   it's  asking  other  groups   or  getting  other                                                               
information, to me that just seems  like a whole lot of authority                                                               
for the  commissioner (indisc.)  without a  structure of  why and                                                               
how the decisions were made."                                                                                                   
                                                                                                                                
MR. GRUENING  asked for clarification on  Representative Neuman's                                                               
comment, asking if it pertained  to the commissioner's discretion                                                               
to require fees.                                                                                                                
                                                                                                                                
REPRESENTATIVE  NEUMAN   said  yes,  and  that   the  legislative                                                               
discovery  process  will allow  the  committee  to "work  through                                                               
that."                                                                                                                          
                                                                                                                                
11:05:55 AM                                                                                                                   
                                                                                                                                
MR. GRUENING continued his explanation  of the Summary of Changes                                                               
document,  moving on  to  16.05.885(f)(2)  subparagraphs (A)  and                                                               
(B), of Version  N, on page 9,  line 31 through page  10, line 7.                                                               
He said that  these are new subparagraphs that  clarify how ADF&G                                                               
will  measure whether  a project  will cause  substantial damage.                                                               
Specifically,  the language  clarifies  how  the department  will                                                               
assess  whether  anadromous  fish  will  recover  to  natural  or                                                               
historic levels  after the project  is completed.  He  added that                                                               
this  was  another  layer  of definitions  to  aid  in  providing                                                               
greater detail.   He said that feedback from  industry and others                                                               
indicated that there was a lack of definitions in the bill.                                                                     
                                                                                                                                
11:06:43 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING continued  with the  Summary  of Changes  document,                                                               
addressing   16.05.887   "Permit    conditions   and   mitigation                                                               
measures."    He said  changes  to  this  section were  found  in                                                               
subsections (a) through (e), on page  12, line 4-page 13, line 10                                                               
of Version N.                                                                                                                   
                                                                                                                                
MR. GRUENING said  that in the previous version of  the bill, the                                                               
language  of   16.05.887,  subsection  (a),  paragraph   (3)  was                                                               
deleted.  It  had stated that the commissioner may  not permit an                                                               
activity  if it  cannot  be carried  out in  a  manner that  will                                                               
ensure the proper protection of  other fish and wildlife habitat.                                                               
He said this  was consistent with the intent to  remove the terms                                                               
"other fish" and "wildlife" from the bill.                                                                                      
                                                                                                                                
11:07:27 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING  continued  his  explanation   of  the  changes  to                                                               
16.05.887(a), on  page 12,  lines 14  and 15, of  Version N.   He                                                               
said that  the language in  the previous bill stated  an activity                                                               
cannot be permitted  if it would "convert a  wild fish population                                                               
to a hatchery-dependent fish population".   He said that language                                                               
has been  altered in the  current version  to:  "will  replace or                                                               
supplement a wild fish population  with a hatchery dependent fish                                                               
population".    He  said  this  change  reflects  the  difference                                                               
between   the  term   "convert"  and   the  phrase   "replace  or                                                               
supplement".   He said  that the  word "convert"  basically means                                                               
"replace"; however, the word  supplement takes into consideration                                                               
avoidance of introducing  a hatchery stock into  an existing wild                                                               
population.                                                                                                                     
                                                                                                                                
11:08:19 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on  to 16.05.887(a)(4) on  page 12,  lines 16                                                               
and 17, of Version N.                                                                                                           
                                                                                                                                
11:08:22 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  NEUMAN pointed  out that  there is  discussion in                                                               
the  legislature  to allow  different  organizations  to work  on                                                               
projects  that supplement  fish habitat  and to  hatch eggs.   He                                                               
asked how that these projects would  be affected if they "are not                                                               
hatchery" and whether they would have to be regulated by ADF&G.                                                                 
                                                                                                                                
MR. GRUENING  answered that this  would not affect  those efforts                                                               
because  the stipulations  and mitigation  measures  would be  in                                                               
relation to an andadromous fish  habitat permit being issued.  It                                                               
would  only apply  if  the mitigation  measures  proposed to  the                                                               
commissioner include  restoring or enhancing the  affected stream                                                               
with hatchery produced fish.                                                                                                    
                                                                                                                                
11:10:27 AM                                                                                                                   
                                                                                                                                
The committee took a brief at-ease from 11:10 a.m. to 11:10 a.m.                                                                
                                                                                                                                
11:10:50 AM                                                                                                                   
                                                                                                                                
MR.  GRUENING returned  to the  Summary of  Changes document,  at                                                               
16.05.887(a)(4) of Version N.   He said that the previous version                                                               
of  the bill  read that  an activity  cannot be  permitted if  it                                                               
would "dewater or  relocate a water body or a  portion of a water                                                               
body, for  5 or more  years, that the commissioner  has specified                                                               
as important, or as presumed  to be important, to anadromous fish                                                               
habitat under  AS 16.05.871(a)."   He said that under  Version N,                                                               
16.05.887(a)(4) now reads, "will  dewater anadromous fish habitat                                                               
for a  period likely to  cause permanent or  long-lasting adverse                                                               
effects to  that habitat".   He said that  the phrase "5  or more                                                               
years" was replaced  with "a period likely to  cause permanent or                                                               
long-lasting adverse effects" to  allow ADF&G more flexibility in                                                               
determining   the  appropriate   period.     Feedback  from   the                                                               
department indicated that  in some cases a period of  5 years may                                                               
be too little and in others it may be too much.                                                                                 
                                                                                                                                
11:12:08 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  moved on to  16.05.887(a)(5), on page 12,  lines 18                                                               
and 19,  of Version  N.   This is  a new  subparagraph specifying                                                               
that  a permit  may not  be issued  for an  activity if  it "will                                                               
permanently relocate all or portions  of a river, lake, or stream                                                               
if  the  relocation will  disrupt  the  migration or  passage  of                                                               
anadromous fish."                                                                                                               
                                                                                                                                
MR. GRUENING interjected that under  Version N, 16.05.887 "Permit                                                               
conditions  and mitigation  measures." provides  the "side  bars"                                                               
for the conditions when the  commissioner may not issue a permit.                                                               
He said that the conditions  specified under this section must be                                                               
met for a permit to be issued.   He noted that while this section                                                               
specifies   when  a   permit  may   not   be  issued,   16.05.877                                                               
"Significant  adverse effects."  identifies  whether the  project                                                               
requires a major or a minor permit.                                                                                             
                                                                                                                                
MR.  GRUENING resumed  his explanation  of  16.05.887(a)(5).   He                                                               
said  this section  was added  because there  were comments  from                                                               
multiple sources indicating that there  will be instances where a                                                               
river  will need  to be  permanently relocated.   Therefore,  the                                                               
phrase, "if the relocation will  disrupt the migration or passage                                                               
of  anadromous  fish",  was  added   as  a  condition  for  those                                                               
instances  when  it  is  necessary  to  permanently  relocate  an                                                               
anadromous river.                                                                                                               
                                                                                                                                
11:13:31 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE NEUMAN described a  hypothetical situation where a                                                               
river runs through  an area selected for a proposed  mine, and he                                                               
asked  Mr.   Gruening  if  such   a  river  could   be  relocated                                                               
permanently  if  fish passage  was  not  interrupted for  a  long                                                               
period.                                                                                                                         
                                                                                                                                
MR.   GRUENING  responded   that   the   scenario  described   by                                                               
Representative Neuman  was conceivable. He stated  that anyone or                                                               
any industry including the mining  industry could work with ADF&G                                                               
and other agencies  to relocate the river responsibly.   He added                                                               
that in the  previous version of the bill,  the concerns relating                                                               
to  the terms  "dewater"  and "relocate"  were  contained in  one                                                               
individual  paragraph   at  Sec.  16.05.887(a)(5);   however,  in                                                               
Version N,  they are split  into paragraphs  (4) and (5)  so that                                                               
there could be a different standard  or condition for each of the                                                               
two  terms.   He  also added  that  he had  met  with the  mining                                                               
association and,  while they  had not  mentioned an  example like                                                               
Representative Neuman's,  the bill was  crafted so that  it would                                                               
apply to mining operations as well.                                                                                             
                                                                                                                                
11:15:27 AM                                                                                                                   
                                                                                                                                
MR. GRUENING continued his explanation  of the Summary of Changes                                                               
document at  16.05.889 "Reconsideration of determinations."   The                                                               
first change he  identified was at 16.05.889(a) of  Version N, on                                                               
page 13,  line 13.   He  said that  the phrase  "person adversely                                                               
affected"  was changed  to  "interested  person" for  consistency                                                               
purpose,  as  interested  person  was  already  utilized  in  the                                                               
section  dealing with  the commissioner's  initial determination.                                                               
He added that the drafters of  the bill had indicated to him that                                                               
the two terms were not  significantly different, as nearly anyone                                                               
could say that they were adversely affected.                                                                                    
                                                                                                                                
11:16:48 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  continued with  his explanation  of the  Summary of                                                               
Changes   document   at   16.05.891  "Exemption   for   emergency                                                               
situations.", found  in Version  N, on  page 13,  line 30.   This                                                               
section  pertains to  emergency situations  where an  oral permit                                                               
may be  issued for necessary  instream work.   The one  change in                                                               
this section  was the addition of  a "state agency" as  an entity                                                               
that may receive  an oral permit for emergency  situations.  This                                                               
change provided flexibility to the  previous version of the bill,                                                               
Version  J,  which identified  only  "a  riparian owner"  as  the                                                               
recipient of an oral permit.                                                                                                    
                                                                                                                                
11:17:35 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  continued with  his explanation  of the  Summary of                                                               
Changes  document,  moving  on  to  16.05.899  "Applicability  of                                                               
permitting requirements.", found  in Version N, on  page 14, line                                                               
25 through page  15, line 11.   He said that this  new section is                                                               
very  significant because  it  contains  the existing  "facility,                                                               
activity, operation, or  project" exemption.  He  said that there                                                               
was an intent  in this language to be very  broad and not exclude                                                               
anyone.  He quoted portions  of the language from 16.08.889 which                                                               
read in its entirety as follows:                                                                                                
                                                                                                                                
     Sec.    16.05.899.    Applicability    of    permitting                                                                    
     requirements.    (a) Notwithstanding  AS  16.05.875(a),                                                                    
     and  except  as provided  in  (b)  of this  section,  a                                                                    
     facility, activity,  operation, or project that  has in                                                                    
     full force and effect, on  the day before the effective                                                                    
     date  of  sec.  3  of  this  Act,  all  required  state                                                                    
     authorizations   relating   to    the   protection   of                                                                    
     anadromous fish and anadromous fish habitat                                                                                
               (1) shall continue to  be authorized under AS                                                                    
     16.05.871  -  16.05.901  and  the  regulations  adopted                                                                    
     under  16.05.871 -  16.05.901,  as  those sections  and                                                                    
     regulations read  on the day before  the effective date                                                                    
     of sec. 3 of this Act,  and may continue to renew those                                                                    
     authorizations    and   obtain    minor   authorization                                                                    
     modifications under  AS 16.05.871  - 16.05.901  and the                                                                    
     regulations adopted under AS  16.05.871 - 16.05.901, as                                                                    
     those sections  and regulations read on  the day before                                                                    
     the effective date of sec. 3 of this Act; and                                                                              
               (2) is  not required to obtain  an anadromous                                                                    
     fish habitat permit under AS 16.05.883 or 16.05.885.                                                                       
          (b) The exemption provided by  (a) of this section                                                                    
     does not  apply to a facility,  activity, operation, or                                                                    
     project  that  significantly  expands or  increases  in                                                                    
     scope, area,  or frequency,  or otherwise  takes action                                                                    
     outside, those  actions for which  it is  authorized on                                                                    
     the day  before the  effective date of  sec. 3  of this                                                                    
     Act.                                                                                                                       
                                                                                                                                
MR.  GRUENING said  that in  laymen's  terms, the  intent is  for                                                               
those permitted under  the current law to stay  under the current                                                               
law,  including   for  renewals,   in  perpetuity,   unless  they                                                               
significantly expanded  the scope  of their permit.   He  gave an                                                               
example of  an expanded permit  as a situation where  a permittee                                                               
might want to change a discharge  point.  In general, it would be                                                               
a change that exceeds the scope  of the original permit.  He said                                                               
that  this  section  addressed  concerns  by  municipalities  and                                                               
industry as  well as  others.   He said  that a  specific concern                                                               
from  municipalities and  DOTPF  was the  potential  loss of  the                                                               
ability to  permit mixing  zones if the  previous version  of the                                                               
bill was adopted as written.   Mr. Gruening said there was intent                                                               
to not  overly burden municipalities  at a time when  they cannot                                                               
afford it.   In addition,  he mentioned  concern for oil  and gas                                                               
exploration companies  with existing  projects that  have already                                                               
been  permitted.   He summarized  by saying  that new  activities                                                               
would fall  under the new  proposed laws, and that  the exemption                                                               
for existing  facilities seemed reasonable,  as it had  the least                                                               
amount of impact for ongoing operations.                                                                                        
                                                                                                                                
11:20:00 AM                                                                                                                   
                                                                                                                                
MR. GRUENING  stated that this  concluded his explanation  of the                                                               
Summary of Changes HB 199 Version J to N document.                                                                              
                                                                                                                                
11:20:20 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE EASTMAN  asked if the term  "interested person" is                                                               
different in any way from any person, legally speaking.                                                                         
                                                                                                                                
MR. GRUENING answered  by saying no, it is any  person.  He added                                                               
that anyone can say they have an interest, legally speaking.                                                                    
                                                                                                                                
MR.  GRUENING,  in response  to  a  question from  Representative                                                               
Neuman,  offered his  understanding that  the term  "person" will                                                               
include corporations.   However, he said that he needs  to be 100                                                               
percent clear on this and will  "triple check" it to be sure that                                                               
his answer  is correct.   He  also said that  there is  no intent                                                               
under HB 199 for permit applications  to be submitted solely by a                                                               
person.                                                                                                                         
                                                                                                                                
11:21:35 AM                                                                                                                   
                                                                                                                                
CHAIR  STUTES thanked  Mr. Gruening  for his  presentation.   She                                                               
also reminded everyone of her  previous statement indicating that                                                               
there would  be additional  meaningful changes to  HB 199  as the                                                               
committee  works through  it.   She encouraged  committee members                                                               
and stakeholders  to reach  out to  her office  if they  have any                                                               
ideas, concerns, or  issues.  She said a  collaborative effort is                                                               
needed to update  Title 16; the intent of the  legislation is not                                                               
to diminish  the value  of any  one resource in  the state.   She                                                               
stated  that the  intent  of  the legislation  is  to maintain  a                                                               
sustainable, healthy,  renewable resource in our  fisheries; that                                                               
is the crux of the proposed legislation.                                                                                        
                                                                                                                                
CHAIR  STUTES said  she believes  that  by working  with all  the                                                               
stake holders,  the committee can  develop a good document.   She                                                               
recounted,  "you   know  what  they   say  when  you're   in  the                                                               
legislature:  "If  you have a bill that everybody  likes a little                                                               
bit and  doesn't like a little  bit, you've got a  winner.'"  She                                                               
said that HB  199 would be on the front  burner and the committee                                                               
will hear it  plenty of times until everyone  is comfortable with                                                               
it and  has had  an opportunity  to provide  input and  ask their                                                               
questions.                                                                                                                      
                                                                                                                                
11:24:15 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE CHENAULT  reiterated Chair Stutes'  statement that                                                               
there would be  numerous opportunities for future  hearings on HB                                                               
199, and he said that a number of people have questions for the                                                                 
administration and the departments that are involved in the                                                                     
bill.                                                                                                                           
                                                                                                                                
[HB 199 was held over.]                                                                                                         
                                                                                                                                
11:25:07 AM                                                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Special Fisheries Committee meeting was adjourned at 11:25 AM.                                                                  

Document Name Date/Time Subjects
HB 199 ver N 1.19.18.pdf HFSH 1/23/2018 10:00:00 AM
HB 199
HB 199 ver N Sectional Analysis 1.22.18.pdf HFSH 1/23/2018 10:00:00 AM
HB 199
HB 199 ver J.PDF HFSH 1/23/2018 10:00:00 AM
HB 199
HB199 Additional Document BOF letter to Legislature.pdf HFSH 1/23/2018 10:00:00 AM
HB 199
HB 199 ver N Summary of Changes 1.23.18.pdf HFSH 1/23/2018 10:00:00 AM
HB 199