Legislature(2017 - 2018)GRUENBERG 120

02/06/2018 11:00 AM FISHERIES

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11:17:22 AM Start
11:18:22 AM Presentation on the Permitting Process by Adf&g
12:10:28 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation on the Permitting Process by ADF&G TELECONFERENCED
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              HOUSE SPECIAL COMMITTEE ON FISHERIES                                                                            
                        February 6, 2018                                                                                        
                           11:17 a.m.                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Louise Stutes, Chair                                                                                             
Representative Jonathan Kreiss-Tomkins                                                                                          
Representative Geran Tarr                                                                                                       
Representative Mike Chenault                                                                                                    
Representative David Eastman                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Zach Fansler                                                                                                     
Representative Mark Neuman                                                                                                      
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
PRESENTATION ON THE ADF&G PERMITTING PROCESS                                                                                    
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
RON BENKERT, Habitat Biologist                                                                                                  
Division of Habitat                                                                                                             
Alaska Department of Fish & Game (ADF&G)                                                                                        
Central Region                                                                                                                  
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Presented a PowerPoint on the permitting                                                                 
process by ADF&G.                                                                                                               
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
11:17:22 AM                                                                                                                   
                                                                                                                                
CHAIR  LOUISE  STUTES  called  the  House  Special  Committee  on                                                             
Fisheries meeting to order at  11:17 a.m.  Representatives Stutes                                                               
and  Tarr were  present at  the call  to order.   Representatives                                                               
Kreiss-Tomkins, Eastman, and Chenault  arrived as the meeting was                                                               
in progress.                                                                                                                    
                                                                                                                                
^Presentation on the Permitting Process by ADF&G                                                                                
        Presentation on the Permitting Process by ADF&G                                                                     
                                                                                                                              
11:18:22 AM                                                                                                                   
                                                                                                                                
CHAIR STUTES announced  that the only order of  business would be                                                               
a  presentation  on  the  permitting  process  by  ADF&G  [Alaska                                                               
Department of Fish & Game].   She reminded members that a bill is                                                               
not  before  the  committee  and   to  refrain  from  asking  the                                                               
presenter to comment on any permitting bill.                                                                                    
                                                                                                                                
11:20:32 AM                                                                                                                   
                                                                                                                                
RON BENKERT,  Habitat Biologist,  Division of  Habitat (Habitat),                                                               
Alaska Department of  Fish & Game (ADF&G),  Central Region, began                                                               
his presentation  on slide  1, titled,  "Fish Protection  Laws in                                                               
Alaska; ADF&G  Statutory Authority."   The photograph on  slide 1                                                               
depicts replacing  a bad  culvert with one  that allows  for fish                                                               
passage, he said.                                                                                                               
                                                                                                                                
MR. BENKERT  referred to slide 2,  titled "Discussion Objectives"                                                               
which read as follows [original punctuation provided]:                                                                          
                                                                                                                                
     Provide an overview of ADF&G Statutory Authority for fish                                                                  
     and wildlife habitat protection                                                                                            
                                                                                                                                
     Identify jurisdictional boundaries of our statutes                                                                         
                                                                                                                                
     Practical application of ADF&G Authority  Fish Habitat                                                                     
     Permits                                                                                                                    
                                                                                                                                
                                                                                                                                
11:21:40 AM                                                                                                                   
                                                                                                                                
MR.   BENKERT  referred   to  slide   3,   titled  "Permits   and                                                               
Authorizations" and  to a table  listing the  permitting agencies                                                               
and area  of authority for  any anadromous fish bodies.   Besides                                                               
the  ADF&G's Division  of Habitat  [often known  as the  "habitat                                                               
division" or "habitat"], the agency  that issues fish habitat and                                                               
other   permits,   other   agencies  also   issue   permits   and                                                               
authorizations  on projects,  including  the U.S.  Army Corps  of                                                               
Engineers,  the  Department  of Natural  Resources  (DNR),  local                                                               
governments,  the Department  of  Environment Conservation  (DEC)                                                               
and land managers, such as  the federal Bureau of Land Management                                                               
(BLM).                                                                                                                          
                                                                                                                                
11:22:27 AM                                                                                                                   
                                                                                                                                
MR.  BENKERT  referred  to  slide 4,  titled,  "ADF&G's  Role  in                                                               
Resource   Development"   which   read,  as   follows   [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     Protect Alaska's valuable fish and wildlife resources and                                                                  
     their habitats as Alaska's population and economy continue                                                                 
     to expand.                                                                                                                 
                                                                                                                                
MR.  BENKERT said  that  habitat biologists  strive  to find  the                                                               
balance between resource development  and resource protection for                                                               
habitats.    The  Division  of  Habitat's  staff  negotiate  with                                                               
applicants  to  ensure  that  project   impacts  are  avoided  or                                                               
minimized  prior to  the issuance  of permits.   For  example, an                                                               
applicant may initially  apply for a permit to  install a culvert                                                               
but after  consulting with  the division will  decide to  build a                                                               
bridge  to  protect  fish habitat.    Incidentally,  the  habitat                                                               
division  has   so  few  denials  because   applicants  sometimes                                                               
withdraw  their applications  rather than  go through  the denial                                                               
process, he said.                                                                                                               
                                                                                                                                
11:24:11 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  said that the  Anadromous Fish  Act in Title  16 has                                                               
has not changed  since the early 60s, but "Habitat"  has not been                                                               
working in  a vacuum.   The division's biologists use  tools such                                                               
as working guidelines  and technical reports to guide  them.  For                                                               
example,  new  blasting  standards  help  inform  the  division's                                                               
permitting  decisions.   He  added  that  the "Habitat  Division"                                                               
works with DOT&PF  on culvert projects to ensure  the pipe allows                                                               
for fish passage.                                                                                                               
                                                                                                                                
11:24:55 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR asked  who developed the new  standards.  She                                                               
wondered  whether  the division  has  enough  flexibility in  its                                                               
regulatory authority  to respond  to a new  standard that  is not                                                               
generated by the department.                                                                                                    
                                                                                                                                
MR.  BENKERT responded  that there  are a  couple standards.   He                                                               
said he  was just  referring to  the Memorandum  of Understanding                                                               
(MOU) with the  DOT&PF relating to culvert  standards for culvert                                                               
replacement in  fish-bearing streams.   The Habitat  Division and                                                               
the DOT&PF are using the  newer standards, for example increasing                                                               
the size  of the pipe.   He emphasized  that the DOT&PF  has been                                                               
very  cooperative by  using the  cutting-edge standards  from the                                                               
Pacific  Northwest.     He  said  that  the   Juneau  staff  have                                                               
physically  measured blasts  near creeks  to determine  what will                                                               
protect fish and fish habitat in salmon-bearing waterbodies.                                                                    
                                                                                                                                
11:26:35 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  referred to slide  5, titled,  "Workload Priorities"                                                               
which read as follows [original punctuation provided]:                                                                          
                                                                                                                                
          Title 16 permitting and enforcement                                                                                   
          Field work - research, inspections                                                                                    
          AWC surveys                                                                                                           
          Large projects of importance to the State                                                                             
          Forest Resources and Practice Act                                                                                     
          Special Area Planning                                                                                                 
                                                                                                                                
MR. BENKERT  said the Habitat Division's  top workload priorities                                                               
focus on Title 16 permitting  and enforcement.  Examples of field                                                               
work  include  inspections of  culverts  prior  to diverting  the                                                               
stream.   The division also  conducts planning and  research that                                                               
helps the division make sound permitting decisions.                                                                             
                                                                                                                                
11:27:34 AM                                                                                                                   
                                                                                                                                
CHAIR  STUTES asked  for further  clarification on  the types  of                                                               
enforcement or enforcement tools the division uses.                                                                             
                                                                                                                                
MR. BENKERT  described the enforcement  process; for  example, if                                                               
the division  discovers an egregious  violation that needs  to be                                                               
enforced,  the  Habitat  Division   will  work  with  the  Alaska                                                               
Department  of  Public  Safety (DPS),  Alaska  Wildlife  Troopers                                                               
(AWT).   He clarified that  environmental crimes often  are civil                                                               
crimes.   The Habitat  Division generate  a notice  of violation,                                                               
stating  the violation,  [which often  falls under  AS 16.05.871,                                                               
the  Anadromous Fish  Act],  and  the DPS,  AWT  then serves  the                                                               
party.                                                                                                                          
                                                                                                                                
11:29:38 AM                                                                                                                   
                                                                                                                                
MR. BENKERT reviewed slide 6,  titled, "ADF&G Statutory Authority                                                               
Fish Protection" which read as follows:                                                                                         
                                                                                                                                
          THE FISHWAY ACT                                                                                                       
          AS 16.05.841                                                                                                          
                                                                                                                                
          ANADROMOUS FISH ACT                                                                                                   
          AS 16.05.871                                                                                                          
                                                                                                                                
          SPECIAL AREA PERMITTING                                                                                               
          5 AAC 95.970                                                                                                          
                                                                                                                                
          FISH RESOURCE PERMIT                                                                                                  
                                                                                                                                
     Required for handling or transporting fish during                                                                          
     dewatering or diversion (Division of Sport Fish)                                                                           
                                                                                                                                
MR. BENKERT explained  that the Fishway Act relates  to any fish-                                                               
bearing  water  body;  however,  it   does  not  need  to  be  an                                                               
anadromous stream.   He reported  that "anadromous" fish  are not                                                               
limited to salmon,  but include species such  as pacific lamprey,                                                               
hooligan,  whitefish,  and  sticklebacks.   He  stated  that  the                                                               
Alaska Department of  Fish & Game (ADF&G) also  issue permits for                                                               
those conducting research.                                                                                                      
                                                                                                                                
11:31:12 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  reviewed slide 7,  titled, "Fishway Act"  which read                                                               
as follows [original punctuation provided]:                                                                                     
                                                                                                                                
     Fishway Act requires that any obstruction built across                                                                     
     fish-bearing waters will provide for fish passage                                                                          
                                                                                                                                
     Jurisdiction                                                                                                             
                                                                                                                                
          Applies to all fish bearing streams (resident and                                                                     
     anadromous) and all fish species.                                                                                          
                                                                                                                                
          Requires   long-term   commitment    to   operation   &                                                               
     maintenance                                                                                                                
                                                                                                                                
          Applies to fish passage only                                                                                          
                                                                                                                                
     Activities not covered by .841                                                                                           
                                                                                                                                
    Projects that don't have the potential to block passage                                                                     
                                                                                                                                
     Docks, streambank protection, motorized stream crossings,                                                                  
     etc.                                                                                                                       
                                                                                                                                
11:31:57 AM                                                                                                                   
                                                                                                                                
CHAIR  STUTES asked  if  there  are any  exceptions  to the  fish                                                               
passage requirements under the Fishway Act.                                                                                     
                                                                                                                                
MR. BENKERT  answered no; that  fish passage is  always required.                                                               
He  explained  that  if  a potential  blockage  of  fish  passage                                                               
occurs, the division will work  with the applicant to ensure that                                                               
the  design  will not  block  fish  passage.   For  example,  the                                                               
Habitat  Division  works to  ensure  that  culverts are  properly                                                               
installed,  without any  barriers to  fish, such  as a  drop off.                                                               
Typically, docks and  stream bank protections do  not hamper fish                                                               
passage, he said.                                                                                                               
                                                                                                                                
CHAIR STUTES  related her  understanding that  there are  not any                                                               
exemptions to the fish passage under current law.                                                                               
                                                                                                                                
MR. BENKERT was unsure of what was meant by exemption.                                                                          
                                                                                                                                
CHAIR  STUTES  explained  that occasionally  during  construction                                                               
that would not require an exemption for fish passage.                                                                           
                                                                                                                                
MR. BENKERT  responded that the division  occasionally may decide                                                               
that short-term impacts are far  outweighed by the long-term goal                                                               
of a project, so some measures  are allowed on a temporary basis.                                                               
For  example,   if  culvert   construction  was   constrained  by                                                               
topography, the  permittee may be  authorized to pump  water over                                                               
the  roadway  until  the  culvert that  allows  fish  passage  is                                                               
installed.    He reiterated,  in  that  instance, the  short-term                                                               
impact is  far outweighed by  the long-term benefit  of replacing                                                               
the culvert.                                                                                                                    
                                                                                                                                
11:34:36 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE CHENAULT  asked whether  projects affected  by the                                                               
[Fishway] act are limited to freshwater.                                                                                        
                                                                                                                                
MR. BENKERT answered yes; the division's jurisdiction under                                                                     
AS  16.05.841 and  AS 16.05.871  typically ends  at the  ordinary                                                               
low-water line of saltwater.                                                                                                    
                                                                                                                                
REPRESENTATIVE  CHENAULT  commented  that he  was  curious  since                                                               
there are significant numbers of docks in Alaska.                                                                               
                                                                                                                                
11:35:40 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  referred to slide  8, titled, "Anadromous  Fish Act"                                                               
which read as follows [original punctuation provided]:                                                                          
                                                                                                                                
     AS 16.05.871                                                                                                             
                                                                                                                                
          ADF&G must specify those waters that are important for                                                                
          the spawning, rearing, or migration of anadromous fish                                                                
          (AWC)                                                                                                                 
                                                                                                                                
          (b-c) notification and plans required before                                                                          
          conducting work in a specified waterbody (permit                                                                      
          application)                                                                                                          
                                                                                                                                
          (d) ADF&G will approve or deny the proposed work                                                                      
                                                                                                                                
MR.  BENKERT explained  that the  process in  AS 16.05.871(a)  is                                                               
accomplished through  the anadromous  waters catalog (AWC).   The                                                               
division  accepts  nominations  in  September,  reviews  them  to                                                               
ensure that they  are submitted by someone  with the professional                                                               
qualifications to  identify the species  of fish.  Next,  the AWC                                                               
regulations   are  promulgated   by   the  Lieutenant   Governor,                                                               
typically in June, he said.                                                                                                     
                                                                                                                                
11:36:24 AM                                                                                                                   
                                                                                                                                
CHAIR  STUTES  asked   what  percentage  of  the   AWC  has  been                                                               
completed.                                                                                                                      
                                                                                                                                
MR. BENKERT answered  that the AWC is about  50 percent complete.                                                               
He  reported that  the recent  international hydrologic  data set                                                               
has  identified  additional  "flowing  waters"  beyond  what  the                                                               
department has  used.   That data  is currently  being integrated                                                               
into  the  AWC,  he  said.     He  reiterated  that  the  AWC  is                                                               
approximately 50 percent  completed, which he said  is the figure                                                               
posted on the Habitat Division's website.                                                                                       
                                                                                                                                
11:37:19 AM                                                                                                                   
                                                                                                                                
CHAIR  STUTES asked  how long  it takes  the Habitat  Division to                                                               
incorporate  a  water  body  into   the  AWC  once  the  division                                                               
determines a water body is anadromous water body.                                                                               
                                                                                                                                
MR. BENKERT  explained the process,  such that  field information                                                               
is collected during the summer  season, nominations are submitted                                                               
by the  deadline, typically,  the end of  September, and  the new                                                               
catalog  is compiled  by  June.   He  detailed  that the  process                                                               
includes a  GIS [Geographic Information System] project to adjust                                                               
the lines, the life-stages, and species  in the water bodies.  He                                                               
acknowledged  that  a  seven  to  nine-month  gap  occurs  before                                                               
inclusion  in the  AWC; however,  sometimes new  elements can  be                                                               
inserted  into  the permit,  but  the  effective date  for  those                                                               
inclusions is the date the AWC becomes law.                                                                                     
                                                                                                                                
11:39:05 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR  asked for further  clarification on  the new                                                               
data set mentioned and whether the  reason for the new streams is                                                               
due  to new  technology that  allows for  more information  to be                                                               
gathered or if data is being collected by drones.                                                                               
                                                                                                                                
MR.  BENKERT agreed  that the  technology being  used is  rapidly                                                               
advancing,  for  example,  the  Matanuska-Susitna  Borough  (MSB)                                                               
contracted to have  a LIDAR [Light Detection  and Ranging] survey                                                               
of  the entire  borough performed.   He  stated that  LIDAR is  a                                                               
remote sensing method  used to examine the surface  of the earth.                                                               
This technology  provides additional details in  the landscape by                                                               
removing all  the foliage  so even small  creeks are  visible, he                                                               
said.  This  technology provides much higher  resolution than the                                                               
topographical maps, he said.                                                                                                    
                                                                                                                                
11:40:19 AM                                                                                                                   
                                                                                                                                
MR.  BENKERT  reviewed slide  9,  titled,  "Anadromous Fish  Act"                                                               
which read as follows [original punctuation provided]:                                                                          
                                                                                                                                
     AS 16.05.871                                                                                                               
                                                                                                                                
          (a) ADF&G must specify those waters that are                                                                          
          important for the spawning, rearing, or migration                                                                     
          of anadromous fish (AWC)                                                                                              
                                                                                                                                
          (b-c) notification and plans required before                                                                          
          conducting work in a specified waterbody (permit                                                                      
          application)                                                                                                          
                                                                                                                                
          (d) ADF&G will approve or deny the proposed work                                                                      
                                                                                                                                
MR.  BENKERT described  the process  for  a construction  project                                                               
that involves a  waterbody that is included in the  AWC.  In that                                                               
instance,  the party  must  notify the  division,  apply for  the                                                               
permit and submit  specifications for the project.   The division                                                               
subsequently reviews the project and  works with the applicant to                                                               
determine  if  the project  is  permittable,  as  is, or  if  any                                                               
avoidance measures need to be  taken to minimize or eliminate any                                                               
impact to anadromous fish habitat.                                                                                              
                                                                                                                                
11:41:09 AM                                                                                                                   
                                                                                                                                
MR.  BENKERT  reviewed  slide  10,  titled  Anadromous  Fish  Act                                                               
(.871)" which read as follows [original punctuation provided]:                                                                  
                                                                                                                                
     Jurisdiction                                                                                                             
                                                                                                                                
          Applies to any activity                                                                                               
          Applies to any life stage                                                                                             
                                                                                                                                
     Application of .871                                                                                                      
                                                                                                                                
          Activity occurring below OHW with some exceptions                                                                     
          Waterbody must be in AWC                                                                                              
                                                                                                                                
          Freshwater only down to the mean low OHW in the marine                                                                
          environment                                                                                                           
                                                                                                                                
MR. BENKERT explained  that this is a "stronger  statute" for the                                                               
division and typically the division  will use this [AS 16.05.871]                                                               
whenever it works with anadromous waterbodies.                                                                                  
                                                                                                                                
11:42:00 AM                                                                                                                   
                                                                                                                                
MR.  BENKERT reviewed  slide 10,  titled "Fish  Habitat Permits,"                                                               
which read as follows:                                                                                                          
                                                                                                                                
     Applicant submits plans to ADF&G                                                                                           
     Habitat Biologist reviews and consults area staff                                                                          
     May be permitted as proposed or modified during review                                                                     
     process                                                                                                                    
     Timeline for review-6 weeks                                                                                                
     Emergency exemptions                                                                                                       
          AS 16.05.891                                                                                                          
          Verbal/email approval                                                                                                 
          Follow up with formal permit                                                                                          
                                                                                                                                
     Typical Stipulations                                                                                                     
                                                                                                                                
          Timing Windows                                                                                                        
          Diversion/Bypass Pumping                                                                                              
          Sediment Control                                                                                                      
          Reveg/Stabilization                                                                                                   
          Fish Passage                                                                                                          
          Notification                                                                                                          
                                                                                                                                
MR.  BENKERT briefly  reviewed the  fish habitat  permit process,                                                               
since he  previously mentioned  it.   The division  consults with                                                               
area  staff,  such as  the  ADF&G's  Division  of Sport  Fish  or                                                               
ADF&G's Division of Subsistence  to garner information and assess                                                               
any concerns.   He reported  that the timeline for  review ranges                                                               
from two  to six  weeks, that  it is  difficult to  determine the                                                               
actual  review period  since  the range  is  highly variable  for                                                               
individual  projects.   For example,  some permits  are over-the-                                                               
counter permits issued for routine  activities with little chance                                                               
of impacting  habitat, such as stream-crossing  permits for ATVs.                                                               
Those permits typically can be issued immediately, he said.                                                                     
                                                                                                                                
MR.  BENKERT said  that large  projects  may take  years to  just                                                               
submit the baseline data collection.   The division must consider                                                               
all  aspects  of   the  project  and  any   potential  impact  on                                                               
anadromous waterbodies.                                                                                                         
                                                                                                                                
MR. BENKERT  described some mid-range permitted  projects, noting                                                               
a typical DOT&PF bridge project permit  may take two to six weeks                                                               
to  complete.    These  projects typically  consist  of  multiple                                                               
engineering   drawings   and   the  projects   can   usually   be                                                               
accomplished using a  variety of options to  coordinate and craft                                                               
a project that minimizes fish habitat.                                                                                          
                                                                                                                                
11:45:57 AM                                                                                                                   
                                                                                                                                
CHAIR STUTES remarked  that she finds the timeline of  two to six                                                               
weeks  interesting  because  in  her  experience  the  permitting                                                               
process is  more like four  days, based on conversations  she has                                                               
had with permitting agencies.                                                                                                   
                                                                                                                                
MR.  BENKERT acknowledged  that it  is difficult  to identify  an                                                               
average permitting process  time, because it depends  on the size                                                               
of the project and any impact to the fish habitat.                                                                              
                                                                                                                                
CHAIR STUTES  mentioned she  did not see  anything listed  in the                                                               
permit process for public input.                                                                                                
                                                                                                                                
MR.  BENKERT  responded that  the  division  is not  required  to                                                               
public notice Title 16 activities.                                                                                              
                                                                                                                                
CHAIR STUTES  remarked that she  found that "odd" but  that could                                                               
be a future discussion.                                                                                                         
                                                                                                                                
11:47:12 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR  asked for further  clarification on  how ATV                                                               
operators are  informed so they know  that they need a  permit to                                                               
cross streams.                                                                                                                  
                                                                                                                                
MR.  BENKERT  answered that  it  basically  relates to  providing                                                               
information to the public; however,  some user groups in the Mat-                                                               
Su are self-educating  themselves and spread the  word to others.                                                               
He  advised  members  that  he often  reaches  out  to  community                                                               
councils  to inform  them.   Further, when  the division  finds a                                                               
frequent  activity  occurring  that  has minimal  impact  on  the                                                               
waterbodies, it  will offer  a general  permit to  authorize that                                                               
activity.   These permits are  online and can be  downloaded, but                                                               
must be on the person, he said.                                                                                                 
                                                                                                                                
11:48:33 AM                                                                                                                   
                                                                                                                                
CHAIR STUTES  directed attention back  to the lack  of exemptions                                                               
to the  Fishway Act  [slide 7].   She  referred to  AS 16.05.851,                                                               
which  read,  "If  a  fishway   over  a  dam  or  obstruction  is                                                               
considered  impracticable by  the commissioner  because of  cost,                                                               
the owner  ..."   The statute  goes on  to lay  out alternatives;                                                               
however, it seems that this  provision sets out an exemption, she                                                               
said.                                                                                                                           
                                                                                                                                
MR.  BENKERT answered  that  the division  considers  that to  be                                                               
mitigation and not an exemption.   He related a scenario in which                                                               
a  hydroelectric project  was  building  a dam,  but  it was  not                                                               
possible to allow  for fish passage over the dam.   In that case,                                                               
AS  16.05.851  allows  project   proponents  to  develop  a  fish                                                               
hatchery  to offset  the blockage  or to  pay a  lump sum  to the                                                               
state to help manage or maintain a state fish hatchery.                                                                         
                                                                                                                                
CHAIR STUTES thanked him for the clarification.                                                                                 
                                                                                                                                
11:50:07 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  continued his discussion  on slide 10,  titled "Fish                                                               
Habitat  Permits"  stating that  the  division  can authorize  an                                                               
emergency  exemption,  but the  parties  must  follow up  with  a                                                               
formal permitting process.                                                                                                      
                                                                                                                                
11:51:26 AM                                                                                                                   
                                                                                                                                
CHAIR STUTES asked for further  clarification on mitigation, such                                                               
as  when the  division determines  mitigation is  required.   She                                                               
asked  whether  there  is  flexibility  in  the  law  as  to  the                                                               
mitigation site location  or if the mitigation must  occur on the                                                               
specific site where the situation arose.                                                                                        
                                                                                                                                
MR. BENKERT answered  that at times there are  no on-site options                                                               
for  mitigation;  however, onsite  is  preferable.   The  federal                                                               
agencies   have  been   using   mitigation   banking  to   offset                                                               
unavoidable impacts in  some permitting situations, he  said.  He                                                               
reiterated that the  division tries to have  the mitigation occur                                                               
onsite but  if it is  not available,  the division tries  to have                                                               
the mitigation project occur nearby.                                                                                            
                                                                                                                                
11:52:36 AM                                                                                                                   
                                                                                                                                
MR. BENKERT, in response to  Representative Tarr, said he was not                                                               
well-versed with  any mitigation  projects that have  occurred in                                                               
the Eagle River area in the past few years.                                                                                     
                                                                                                                                
11:53:16 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  continued his discussion  on slide 10,  titled "Fish                                                               
Habitat  Permits" relating  that typical  stipulations associated                                                               
with fish  habitat permits include  timing windows, in  which the                                                               
activities  are contained  in time  windows  when critical  life-                                                               
stages of anadromous fish occur,  typically confining most of the                                                               
work between May  15 and July 15.  He  mentioned the division has                                                               
a storm water prevention plan  to assure that unintended sediment                                                               
is  put  into   the  system.    He   described  revegetation  and                                                               
stabilization,  for  example,  when  DOT&PF  disturbs  the  banks                                                               
during culvert  installation, it must  incorporate bioengineering                                                               
revegetation upstream and downstream  to reestablish the riparian                                                               
zone.    He  noted  he  previously  discussed  fish  passage  and                                                               
notification,  adding  that  the division  requires  projects  to                                                               
provide  notice to  allow  the  division staff  to  be onsite  to                                                               
ensure the activity is conducted appropriately.                                                                                 
                                                                                                                                
11:55:28 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  TARR  asked  for  further  clarification  on  the                                                               
revegetation  in  Anchorage and  whether  he  could describe  the                                                               
interface between  the state laws  and local ordinances  in terms                                                               
of riparian zone protections.                                                                                                   
                                                                                                                                
MR.  BENKERT answered  that the  public is  often confused  about                                                               
jurisdictional   authority   and  people   sometimes   mistakenly                                                               
believes  that  local  ordinances   are  issued  by  the  Habitat                                                               
Division.   Thus, the  division is  sometimes inundated  by calls                                                               
from  the  public.   Although  the  division  is aware  of  local                                                               
ordinances,  it does  not incorporate  any  municipal or  borough                                                               
ordinances into the ADF&G's permitting  activities, he said.  The                                                               
ADF&G's statutes stand  alone, although the division  does try to                                                               
inform applicants  to check with  the local authorities,  such as                                                               
municipalities or boroughs.                                                                                                     
                                                                                                                                
11:57:17 AM                                                                                                                   
                                                                                                                                
CHAIR STUTES  asked for further  clarification on  the division's                                                               
interaction with the federal agencies.                                                                                          
                                                                                                                                
MR. BENKERT offered to cover that in a further slide.                                                                           
                                                                                                                                
11:57:39 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  reviewed slide  11, titled,  "ADF&G's Role  in Large                                                               
Project Evaluation"  which read as follows  [original punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
          Large projects are often coordinated through the ADNR                                                                 
          Office of Project Management and Permitting (OPMP)                                                                    
                                                                                                                                
          Large projects have the potential to result in long-                                                                  
          term or permanent change to fish and wildlife habitat.                                                                
                                                                                                                                
          ADF&G staff work with the applicant and other agencies                                                                
          to ensure the project is designed to avoid or minimize                                                                
          impacts to resources of the state.                                                                                    
                                                                                                                                
          This requires evaluation of all information available                                                                 
          and identification of additional information needs to                                                                 
          conduct a thorough analysis of the proposed project                                                                   
          and project alternatives.                                                                                             
                                                                                                                                
               There are five phases to large projects:                                                                         
               Pre-project scoping and fish and wildlife                                                                        
               studies;                                                                                                         
               Permitting;                                                                                                      
              Project construction and monitoring;                                                                              
               Project operation and monitoring; and                                                                            
               Post-project site reclamation or restoration.                                                                    
                                                                                                                                
11:57:53 AM                                                                                                                   
                                                                                                                                
MR. BENKERT  highlighted several  types of projects  that require                                                               
coordination  between  agencies,  including  that  placer  mining                                                               
operations must obtain water permits  through DNR's Water Section                                                               
since those  operations typically require significant  water use.                                                               
The  DNR  will issue  a  water  use  permit concurrent  with  the                                                               
division's  fish habitat  permit.   In  addition, DEC  authorizes                                                               
mixing zones  under the  Clean Water Act,  but the  ADF&G reviews                                                               
the mixing zones and to  ascertain if anadromous fish are present                                                               
or spawning and determine whether the activity is permitted.                                                                    
                                                                                                                                
12:00:15 PM                                                                                                                   
                                                                                                                                
MR. BENKERT referred  to federal agencies, noting  that the ADF&G                                                               
comments on some  federal activities, such as marine  waters.  He                                                               
said  large  project evaluations  which  are  coordinated by  the                                                               
DNR's Office  of Project  Management and  Permitting (OPMP).   In                                                               
fact, most  large project managers  prefer to use the  OPMP since                                                               
it provides them with a single point of contact.                                                                                
                                                                                                                                
MR. BENKERT  described the large  project review,  which involves                                                               
review  of  environmental  baseline   data  and  data  collection                                                               
programs  and  forming  technical working  groups  [comprised  of                                                               
state  and federal  agencies with  subject expertise  to evaluate                                                               
pre-application]  to  review  information and  data  required  or                                                               
requested  from  state  resource  agencies.   The  working  group                                                               
approves the baseline collection and  works with the applicant to                                                               
ensure protections are  in place.  He acknowledged this  can be a                                                               
lengthy  process,   recalling  that  the   Susitna  Hydroelectric                                                               
Project  had  27 technical  working  groups  to address  specific                                                               
issues.                                                                                                                         
                                                                                                                                
12:02:23 PM                                                                                                                   
                                                                                                                                
MR. BENKERT  said that federal  agencies have permits in  play as                                                               
well.   He stressed  it can  take years  to get  to the  point at                                                               
which the  proponent can  apply for  fish habitat  permits, since                                                               
the project may cross multiple  creeks and many issues can arise.                                                               
The process is  complex for data collection that  can help inform                                                               
the permitting decisions.                                                                                                       
                                                                                                                                
12:03:53 PM                                                                                                                   
                                                                                                                                
CHAIR STUTES asked whether ADF&G  can inform the federal agencies                                                               
that "No, this isn't going to work here, we're sorry."                                                                          
                                                                                                                                
MR. BENKERT said  he did not think that the  division has arrived                                                               
at that point yet.                                                                                                              
                                                                                                                                
12:04:11 PM                                                                                                                   
                                                                                                                                
MR. BENKERT  mentioned that marine  waters often  require federal                                                               
permits including obtaining a permit  from the U.S. Army Corps of                                                               
Engineers to  build a  dock.   The ADF&G  can comment  on federal                                                               
actions to the  Fish and Wildlife Coordination Act,  which is not                                                               
often  used;  however, the  division  has  used this  process  to                                                               
provide  input into  the federal  process to  inform the  federal                                                               
decisions,  as  well,  since  the  state  has  significant  local                                                               
knowledge that the federal agency may not have.                                                                                 
                                                                                                                                
12:05:01 PM                                                                                                                   
                                                                                                                                
CHAIR  STUTES related  her understanding  that the  ADF&G has  an                                                               
opportunity to comment in the  federal process but has no control                                                               
over the process.                                                                                                               
                                                                                                                                
MR.  BENKERT  agreed that  the  ADF&G  does  have input  but  not                                                               
control.   He pointed out  that the department  also participates                                                               
with federal agencies  on its working groups,  for instance, that                                                               
a technical  advisory committee was established  through the U.S.                                                               
Corps of Engineers  to revise placer mining permits.   The ADF&G,                                                               
DNR,  and  DEC  helped  develop  the  permits,  which  means  the                                                               
department could  at least  discuss aspects of  the permit.   The                                                               
department also  participated in  an advisory committee  with the                                                               
Bureau  of   Land  Management  (BLM)  to   ascertain  impacts  on                                                               
remediation of mining sites.                                                                                                    
                                                                                                                                
12:06:25 PM                                                                                                                   
                                                                                                                                
CHAIR STUTES said she did not  think the committee could sum this                                                               
up today.                                                                                                                       
                                                                                                                                
MR. BENKERT said he had one more slide to cover.                                                                                
                                                                                                                                
12:06:40 PM                                                                                                                   
                                                                                                                                
MR.  BENKERT  reviewed slide  12,  titled,  "ADF&G Large  Project                                                               
Permitting"   which  read   as   follows  [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
      Activities associated with large project development                                                                      
      that would typically require permits from the ADF&G                                                                       
     include:                                                                                                                   
                                                                                                                                
       Fish Habitat Permits from the Division of Habitat                                                                        
     addressing:                                                                                                                
                                                                                                                                
          Construction of fish barriers (i.e., dams);                                                                           
          Flow reduction;                                                                                                       
          Stream crossings associated with road and pipeline                                                                    
          construction (bridges, culverts, buried pipelines,                                                                    
          etc.);                                                                                                                
          Water withdrawal and intake structures;                                                                               
          Stream re-alignment; and                                                                                              
          Instream mitigation projects.                                                                                         
                                                                                                                                
MR. BENKERT said the division works  with the DNR and can require                                                               
minimum  instream flow,  so  fish  will not  be  impacted by  the                                                               
project.   He indicated he  has pretty  much covered the  rest of                                                               
the large project permitting.                                                                                                   
                                                                                                                                
12:07:30 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE TARR,  in terms  of working with  the DNR  on flow                                                               
reduction, asked  whether the outcome  is a water  reservation on                                                               
behalf of the ADF&G.                                                                                                            
                                                                                                                                
MR.  BENKERT answered  not necessarily.    He said  that a  water                                                               
reservation  system is  different. He  described flow  reduction,                                                               
such that the permit will  include that the project must maintain                                                               
a minimum flow.   It may be due to  temporary construction use or                                                               
in instances in which small  hydroelectric projects are diverting                                                               
flow.   This  is  not a  reservation but  a  requirement for  the                                                               
project proponent  to maintain certain flows  through the project                                                               
site  to maintain  fish  habitat,  he said.    He  added that  an                                                               
instream flow reservation goes through  a formal process with the                                                               
DNR, but it can take years to adopt instream flow reservations.                                                                 
                                                                                                                                
12:08:36 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  TARR  related  her understanding  that  once  the                                                               
instream  flow  reservation has  been  granted  that it  is  more                                                               
permanent than the flow reduction permit.                                                                                       
                                                                                                                                
MR. BENKERT  responded sometimes it  is but sometimes it  is not.                                                               
For example, with  respect to a hydroelectric  power project, the                                                               
project will  obtain a  flow reservation.   In that  instance the                                                               
project  will be  allocated  a  certain amount  of  water to  run                                                               
through its turbines to produce  power.  However, the ADF&G could                                                               
argue that too much water is  being taken.  Although the division                                                               
does not  authorize a water  reservation, it might  influence the                                                               
amount  of  water under  the  reservation  that the  DNR's  Water                                                               
Section grants to the applicant for the project, he said.                                                                       
                                                                                                                                
12:09:32 PM                                                                                                                   
                                                                                                                                
CHAIR STUTES thanked Mr. Benkert for his presentation.                                                                          
                                                                                                                                
12:10:28 PM                                                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Special Committee on Fisheries meeting was adjourned at 12:10                                                                   
p.m.                                                                                                                            

Document Name Date/Time Subjects
House Fisheries Presentation-Fish Habitat Permitting 2.6.18.pdf HFSH 2/6/2018 11:00:00 AM
HB 199
Opposing Docuement-Alaska Forestry Board.pdf HFSH 2/6/2018 11:00:00 AM
Opposing Document-UCM.pdf HFSH 2/6/2018 11:00:00 AM
HB 199
Opposing Document-Alaska Council of Producers.pdf HFSH 2/6/2018 11:00:00 AM
HB 199
Supporting Document-Curyung Tribal Council.pdf HFSH 2/6/2018 11:00:00 AM
Supporting Document-Juneau Fishermen.pdf HFSH 2/6/2018 11:00:00 AM
HB 199
Supporting Document-Statewide.pdf HFSH 2/6/2018 11:00:00 AM
HB 199