Legislature(2017 - 2018)GRUENBERG 120
02/08/2018 10:00 AM House FISHERIES
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| Presentation: Permitting Process by Adf&g, Dec, and Dot&pf. | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 8, 2018
10:03 a.m.
MEMBERS PRESENT
Representative Louise Stutes, Chair
Representative Jonathan Kreiss-Tomkins
Representative Mike Chenault
Representative Geran Tarr
Representative David Eastman
MEMBERS ABSENT
Representative Mark Neuman
Representative Zach Fansler
COMMITTEE CALENDAR
PRESENTATION: PERMITTING PROCESS BY ADF&G, DEC, AND DOTPF.
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
JOSEPH KLEIN, Aquatic Resources Unit Supervisor
Division of Sport Fish
Alaska Department of Fish & Game (ADF&G)
Anchorage, Alaska
POSITION STATEMENT: Provided a PowerPoint presentation during
on the permitting process by the ADF&G.
WADE STRICKLAND, Environ. Program Manager III
Water Quality Programs
Division of Water (DOW)
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Provided a PowerPoint presentation on the
Permitting Process by DEC.
RON BENKERT, Habitat Biologist
Division of Habitat
Alaska Department of Fish & Game (ADF&G)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the presentation.
JOHN BARNETT, Environmental Manager
Southcoast Region
Department of Transportation & Public Facilities (DOT&PF)
Juneau, Alaska
POSITION STATEMENT: Provided a PowerPoint presentation of the
DOT &PF permitting process.
ACTION NARRATIVE
10:03:18 AM
CHAIR LOUISE STUTES called the House Special Committee on
Fisheries meeting to order at 10:03 a.m. Representatives
Stutes, Kreiss-Tomkins, Chenault, and Eastman were present at
the call to order. Representative Tarr arrived as the meeting
was in progress.
^Presentation: Permitting Process by ADF&G, DEC, and DOT&PF.
Presentation: Permitting Process by ADF&G, DEC, and DOT&PF.
10:04:17 AM
CHAIR STUTES announced that the only order of business would be
a Presentation: Permitting Process by ADF&G, DEC, and DOT&PF.
10:06:16 AM
JOSEPH KLEIN, Aquatic Resources Unit Supervisor, Division of
Sport Fish, Alaska Department of Fish & Game (ADF&G), introduced
himself. He directed attention to slide 2, titled "Federal
Energy Regulatory Commission (FERC, Commission)," which read as
follows [original punctuation provided]:
FERC is an independent agency that regulates non-
federal hydroelectric projects by authorizing their
construction and operation.
The Commission is composed of up to five
commissioners who are appointed by the President of
the United States and confirmed by the Senate.
The Federal Power Act (FPA) was enacted in 1935
and grants the Commission jurisdiction over non-
federal hydropower projects throughout the United
States.
10:08:14 AM
MR. KLEIN turned to slide 3, titled "FERC Hydropower
Jurisdiction," which read as follows [original punctuation
provided]:
FERC authorization is required for non-federal
hydropower projects:
Located on navigable waters; or
Located on federal lands; or
Using surplus water from a federal dam; or
Located on a body of water over which Congress
has Commerce Clause jurisdiction, project
construction occurred on or after August 26,
1935, and the project affects the interests of
interstate or foreign commerce.
MR. KLEIN said the most common hydroelectric projects in Alaska
are impoundment or reservoir storage projects; for example, the
hydroelectric projects at Blue Lake near Sitka and Bradley River
near Homer [slide 4]. Two other types of power projects were
run-of-the-river and hydrokinetic, he said [slide 5].
CHAIR STUTES asked whether any hydrokinetic projects were in
Alaska.
MR. KLEIN answered that currently no licensed projects exist;
however, a few were in the pilot project phase. The Kvichak
River has the only active hydrokinetic project, but it has not
yet generated any electricity.
10:11:00 AM
MR. KLEIN turned to a diagram on slide 6, titled "Federal Power
Act" and noted three license processes:
1. Integrated Licensing Process (default)
2. Alternative Licensing Process
3. Traditional Licensing Process
MR. KLEIN said the licensing process has been designed to
document the environmental, engineering, and economic
characteristics of an applicant's process. The process involves
studies in consultation with resource agencies, which provide
the basis for the FERC decision making. All three processes
consist of two main phases. Pre-filing which consists of
scoping, conducting environmental studies, consultation with
resource agencies and members of the public and results in a
license application. Once the application has been submitted to
FERC, the second or post-filing phase begins and an
environmental NEPA [National Environmental Policy Act of 1969]
process would be produced, which ultimately results in an agency
decision, he said.
10:12:51 AM
MR. KLEIN turned to slide 7, titled "Major Sections of the FPA,"
which read as follows [original punctuation provided]:
• Preliminary permit
Allow permittee to study a project for a 3-year
period with an option to extend to 5 years. Gives
the permittee priority over other potential
applicants.
• Section 4(e)
Equal consideration to developmental and
environmental values. Any license issued within a
federal reservation is also subject to mandatory
terms and conditions issued by the federal land
management agency
• Section 10(j)
Any license issued must include conditions to
protect, mitigate damages to, and enhance, fish and
wildlife habitat. Conditions are based on
recommendations from federal and state fish and
wildlife agencies.
• Section 18
Fishway prescriptions by the Secretaries of Interior
or Commerce are mandatory and must be included in
the license.
• License Order
Order approves the license applications with
specific terms and conditions for 30-50 years.
Licensee may file for amendments during license
period.
10:14:53 AM
CHAIR STUTES asked the length of time it takes from the initial
application to issuance of the permit.
MR. KLEIN answered that it varies. One of the largest factors
was the ability to access and conduct studies, he said. He
elaborated that the FERC website states that the agency strives
to issue a license within five years; however, in Alaska it
often takes longer due to the extra time necessary to complete
studies, engineering and geotechnical evaluations.
10:15:45 AM
REPRESENTATIVE TARR referred to page 7 to the major sections of
the FPA and asked whether these sections were listed in
sequential order or if the sections were considered
concurrently.
MR. KLEIN responded that they were sequential, but the three
sections have significant detail within them.
10:16:31 AM
REPRESENTATIVE TARR further asked for clarification, noting that
the general process [listed on slide 6] divided the pre-filing
and post-filing phases. She wondered how the major sections of
the FPA [slide 7] meshed with the pre-filing and post-filing
phases of the review.
MR. KLEIN responded that the major sections of the FPA on slide
7 related to the end of the process in the post-filing.
Specifically, prior to the NEPA document. They represented the
period when the FERC will ask agencies to submit recommended and
mandatory terms and conditions. That information would be
evaluated within the NEPA document and the agency would decide
whether to accept the terms and which it would be considered
mandatory conditions. He recapped that generally the process is
sequential; however, this presentation provides a brief overview
of the process; for example, Section 4(e) consists of other
topics that relate to the overall licensing process.
10:17:59 AM
MR. KLEIN, in further response to Representative Tarr, agreed
that the process builds toward a NEPA document, which includes a
recommendation by the FERC staff to the commissioners. The
commissioners may decide to deviate from FERC staff
recommendations; however, that would rarely happen, he said. He
reiterated that FERC commissioners make the final decision on
whether to issue the license and any terms and conditions to be
included.
10:19:07 AM
MR. KLEIN turned to slice 8, titled "National Environmental
Policy Act (NEPA)," which read, in part, as follows [original
punctuation provided]:
The Federal Power Act requires preparation of a NEPA
document (EA or EIS) that analyzes developmental
issues (energy, flood control, water supply,
irrigation, etc.)
MR. KLEIN explained it would also provide FERC staff with
recommendations on each aspect of the application in the NEPA
document.
10:19:47 AM
MR. KLEIN turned to slide 9, titled "Exemptions & Hydrokinetic
Projects," which read as follows [original punctuation
provided]:
2 Types of Exemptions
1. Small hydropower projects (= 10 megawatts) that
will be built at an existing dam or that utilize a
natural water feature for head or an existing small
project that proposes to increase capacity.
2. Conduit exemption for projects on an existing
conduit (e.g. water supply, irrigation canal) that was
constructed primarily for purposes other than power
production.
Exempted projects are subject to mandatory terms and
conditions set by state and federal fish and wildlife
agencies.
Hydrokinetic Projects (marine, wave & in-river)
• Special licensing process due to experimental
technology.
• Pilot projects are small, short-term, & removable
to allow developers to test technologies and
environmental effects.
MR. KLEIN noted that these exemptions have not been used much in
Alaska. He recalled one small hydropower exemption at Tazlina
[Copper River] and perhaps a few other conduit exemption
projects; for example, a conduit exemption was issued for the
Hidden Falls hatchery, which has an existing pipeline for the
hatchery. The hatchery wanted to put a power turbine within the
pipeline, he said.
MR. KLEIN explained that the hydrokinetic projects use a special
licensing process to help initiate the experimental technology.
Nationwide a few hydrokinetic projects exist, but the process
has proven more difficult than envisioned. He offered his
belief that these hydrokinetic projects have lots of potential
but getting the projects to work in real-time environments has
proven difficult and challenging.
10:22:25 AM
MR. KLEIN turned to slide 10, titled "Summary," which contained
a triangle whose sides were labeled "License Administration &
Compliance," "Dam Safety," and "Licensing." Within the triangle
was a list consisting of licensees, resource agencies, tribes,
NGOs, and local stakeholders.
10:22:50 AM
REPRESENTATIVE TARR asked whether he could give a sense of
whether there are enough projects under consideration.
MR. KLEIN replied that currently 32 projects have been licensed
under FERC, with a handful still in the licensing process. He
stated that his division has a staff member who tracks,
monitors, and participates in this process. He explained that
once a project has obtained a license, sometime amendments are
requested within the 30 to 50-year license span. The licensee
might request adding another turbine, wish to divert a stream
into the reservoir, or request engaging in other activities that
would require an amendment, which may also require associated
studies. The licensing itself can be quite time-consuming; for
example, the Susitna-Watana Hydroelectric Project, a project
that members may be most familiar with. In addition, his office
monitors compliance, he said. Sometimes his office must work
with an applicant on various terms and conditions to ensure
these will be implemented in an efficient and cost-effective
manner. It may take time to obtain the best design for a fish
exclusion from a tailrace, for example.
10:26:19 AM
The committee took an at-ease from 10:26 a.m. to 10:27 a.m.
10:27:56 AM
WADE STRICKLAND, Environ. Program Manager III, Water Quality
Programs, Division of Water (DOW), Department of Environmental
Conservation (DEC), stated that he would begin his PowerPoint
presentation on the Alaska Pollutant Discharge Elimination
System (APDES) and Anadromous Waters.
10:28:36 AM
MR. STRICKLAND directed attention to slide 2, titled "Division
of Water Mission," which read as follows [original punctuation
provided]:
Improve and Protect Water Quality:
How?
? Establishes standards for water cleanliness
? Regulates discharges to waters, wetlands and
subsurface
? Provides financial assistance for water and
wastewater facility construction and waterbody
assessment and remediation
Trains, certifies, and assists water and wastewater
system operators
? Monitors and reports on water quality
MR. STRICKLAND stated that his focus would be on regulations for
discharges to waters, wetlands and subsurface, particularly to
waters.
10:28:57 AM
MR. STRICKLAND turned to slide 3, titled "National Pollutant
Discharge Elimination System (NPDES) Framework," which read as
follows [original punctuation provided]:
• Clean Water Act & Amendments
• Established the NPDES Program (Section 402)
• Point sources of wastewater discharging
pollutants into waters of the United States
require a NPDES permit
• Authorization of State Programs
MR. STRICKLAND explained that the NPDES legal framework comes
from the Clean Water Act and its amendments. The Clean Water
Act has an authorization process. Section 402 of the Clean
Water Act provides that any discharge into waters of the United
States, which is most surface waters, requires an NPDES permit.
The Clean Water Act envisioned that states would administer the
program upon application to the federal Environmental Protection
Agency (EPA). He related that Alaska is one of 46 states
delegated to administer the program. He offered his belief that
in July Idaho would be the 47th state to do so, with
Massachusetts, New Hampshire, and New Mexico the only states
remaining without authorizations.
10:30:06 AM
MR STRICKLAND directed attention to slide 4 titled, "Primacy
Transfer and APDES Framework," which read as follows [original
punctuation provided]:
• The State's program is called the APDES Program,
which started on October 2008
• Statutory authority is provided in Alaska Statute
46.03
• Implementing regulations are provided in 18 AAC
83
MR. STRICKLAND stated that any industry may have a point source
discharge to waters in the United States. In Alaska, that
usually includes oil and gas, mining, seafood processors,
municipal wastewater treatment plants, and other miscellaneous
industrial discharges.
10:31:36 AM
MR. STRICKLAND turned to slide 5, titled "APDES Permit
Development Process," which read as follows [original
punctuation provided]:
• Receive complete application for permit
• Evaluate proposed wastewater discharge and
receiving waterbody characteristics
o Is the wastewater potentially toxic and will
it require advanced treatment?
o Are there sensitive species in the waterbody
that require protection?
o For freshwater discharges, review Fish and
Game's (ADF&G) Anadromous Waters Catalog to
determine if the waterbody is listed
square4 Consult with ADF&G and applicant on
spawning determination if discharge is
to an anadromous waterbody
MR. STRICKLAND explained that the department issues two types of
permits: a general permit that covers a category of similar
discharges, such as seafood processing or vessels; and for
larger or unique facilities, the department issues individual
permits that follow the process described on slide 5. If a
waterbody has been identified as an anadromous waterbody the
division will consult with ADF&G to determine if the waterway
has any spawning activity occurring.
10:33:12 AM
CHAIR STUTES asked whether mixing zones would be allowed in
anadromous waters if a determination was made that it was
not a spawning segment.
MR. STRICKLAND answered that was correct.
10:35:08 AM
MR. STRICKLAND turned to slide 6, titled "Fish Spawning
Determination - Impacts," which read, in part, as follows
[original punctuation provided]:
• Discharge is not eligible for a mixing zone per
Alaska water quality standards
o Mixing zone is a limited area in the waterbody
where wastewater is allowed to mix with the
ambient water before meeting water quality
criteria
• State water quality criteria must be met at end of
pipe
MR. STRICKLAND explained that if ADF&G determined that a
waterbody listed as anadromous does have spawning, the
division's water quality standards do not allow for mixing
zones; therefore, the discharger would not be eligible for
mixing zones per the department's standards. He paraphrased the
mixing zone definition as "a limited area in the waterbody where
wastewater is allowed to mix with the ambient water before
meeting water quality criteria." He directed attention to the
graphic on the slide that shows wastewater discharge going into
a lake, which shows a gray area where state water quality
criteria could be exceeded; however, at the boundary where it
mixes with the waterbody, all state water quality standards must
be met. In instances in which mixing zones are not allowed, the
state water quality criteria must be met at the end of the pipe,
he said. This generally means that numeric permit limits are
much lower than if a mixing zone was permitted.
10:35:23 AM
REPRESENTATIVE TARR asked whether he could further discuss it
since this has been a controversial issue. She recalled that
the water quality standard had been weakened in 2013 when a
cruise ship initiative had increased water quality standards.
MR. STRICKLAND answered that he does not manage the cruise ship
program; however, he was aware of the issue. He explained that
the division's water quality standards did not change due to the
initiative, but that cruise ships would not be allowed mixing
zone permits. Instead, cruise ships would be required to
install advanced wastewater treatment systems (AWTSs). He
related that at the time, a science panel was formed to evaluate
the installation of the systems and evaluate performance. Based
on the review of the performance data, it was determined that
many of the systems met state water quality criteria, but not
for some ships. He related his understanding that this had
resulted in the legislation that allowed mixing zones for
smaller cruise ships with 50-249 lower berths; however, water
quality criteria had not changed as a result of [the initiative
and the legislation].
10:37:31 AM
REPRESENTATIVE TARR requested the division provide an update on
that and offered that there may have been some changes to mixing
zone permits from stationary sources.
MR. STRICKLAND offered to do so but elaborated that a general
permit was administered through the Division of Water [ADEC],
that authorized the mixing zones for vessels underway as well as
for stationary vessels. He offered his belief that the
permitting process authorized mixing zones. He offered to
provide information to the committee.
10:38:43 AM
MR. STRICKLAND directed attention to slide 7, titled "Permit
Document Reviews," which read as follows [original punctuation
provided]:
• Preliminary draft permit documents are shared with
the permittee and state and federal agencies for a
10- day review period.
• Draft permit documents are public noticed for a
minimum of 30-days. Major permits are public noticed
in a newspaper of local circulation.
• Public meetings and hearings by request.
• Proposed final permit documents are shared with the
permittee and state and federal agencies for a 5-day
review period prior to issuance.
MR. STRICKLAND briefly described the preliminary draft permit
document called the applicant review. Links to the document
would be sent to all state resource agencies, and to the
Environmental Protection Agency [EPA], National Marine Fisheries
Service [NMFS], and the U.S. Fish and Wildlife Service [USF&WS].
After making changes, the draft permit documents are public
noticed for a minimum of 30 days. The comment period could be
extended in instances with significant public interest. After
the public comment period, the division prepares a response to
comments document for all substantial comments that documents
the rationale for making changes to the permit or not making any
changes. The final permit documents are shared with the
permittee and state and federal agencies for a five-day review
period, followed by issuance. Throughout the process, special
notifications are sent to potentially affected tribes and local
governments in the area.
10:41:57 AM
MR. STRICKLAND turned to slide 8, titled, "Summary of Permitting
Process," which consisted of a flowchart. He explained that the
flowchart summarizes the permitting process and how individuals
could get involved in the process. He reviewed the process,
such that the division annually develops a permit issuance plan
(PIP). Recently the division completed the 2018-2019 calendar
year PIP, which identifies the priorities for the department.
The department sends the PIP to all local governments and tribes
and posts it to its website. The division then assigns a permit
writer and identifies any potentially affected communities. The
department prepares a preliminary draft, the draft, and the
proposed final draft, and goes through the public comment
period. The division issues the permit online.
10:43:36 AM
MR. STRICKLAND turned to slide 9, titled, "Permit Issuance and
Administrative Appeal," which read as follows [original
punctuation provided]:
• Permit issued for a term not to exceed five years.
• Upon issuance, there is a 20-day informal
administrative appeal period and a 30-day
administrative appeal period.
• After 30 days, any appeal must be lodged in Superior
Court.
10:44:18 AM
REPRESENTATIVE TARR asked for further clarification on who is
considered to have standing to appeal the decision. For
example, could an Alaska resident have standing and challenge
something based on potential impacts to anadromous fish habitat,
she asked.
MR. STRICKLAND suggested that was probably a question for the
Department of Law. He offered that the division's regulations
explain how to establish standing through a permitting process.
He recalled that one way to do so was to be meaningfully
involved throughout the permitting process. In other words, he
said a person who did not make public comments but later
appealed the decision would not be considered to have "standing"
since he/she was not actively involved in the permit-development
process. In further response to Representative Tarr, he offered
to provide regulations to the committee.
10:46:06 AM
MR. STRICKLAND turned to slide 10, titled, "Compliance with
Permits," which read as follows [original punctuation provided]:
• During the permit term, DEC inspectors will visit
the sites to complete inspections
• Permittees are also required to notify DEC within
24- hours of a non-compliance event that potentially
threatens public health or the environment
10:47:00 AM
REPRESENTATIVE CHENAULT asked for a synopsis of what would be
required for a permittee to continue holding a permit five years
after initial permit was issued.
MR STRICKLAND answered that the requirement depends on the type
of discharge. He explained that at the four and one-half year
mark, individual permittees must apply for a permit reissuance.
For example, a municipal wastewater treatment plant or a large
mine would have different federal and state requirements. The
division would review the application for administrative
completeness. The division would issue an administrative
extension letter to confirm it was working on reissuing the
permit. The old permit continues to be in effect if the
division has not completed the reissuance process prior to the
end date of the permit. He further added that for general
permits, the applicant must apply for reissuance within 90 days
of the permit expiration date, and again, the agency process
would be the same; that it would send an administrative
extension letter and the general permit would be in effect until
the agency completed the general permit reissue.
10:48:54 AM
REPRESENTATIVE CHENAULT asked whether the process would be as
extensive as the original permit process.
MR STRICKLAND answered that during the reissuance process the
division would take into consideration all activities and
occurrences during the previous five years.
10:49:38 AM
CHAIR STUTES said she thought the question related to whether
there would be additional cost.
REPRESENTATIVE CHENAULT disagreed. He clarified that his
question related to if nothing had changed in the permitting
process, he wondered how intensive the reissuance process would
be compared to the original permitting process.
MR STRICKLAND answered that there is some routine monitoring
that occurs throughout the life of the facility to ensure that
the quality of the wastewater does not change over time. He
elaborated that if there were some initial requirements that had
been satisfied, that the division would not need to carry those
requirements forward. He reiterated that some ongoing
evaluation occurs to evaluate the effects of the wastewater
discharge.
10:51:15 AM
REPRESENTATIVE TARR acknowledged that the statutory and
regulatory references were found on slide 4 so she would not
need follow-up from the department on the framework.
10:51:40 AM
CHAIR STUTES asked whether a public process was part of the FERC
permitting process.
MR KLEIN answered yes. He stated that the FERC process was an
open and public process, noting that documents are available on
the FERC website; that all meetings are open to the public
through the post-filing phase. He said the NEPA document was a
public document.
CHAIR STUTES asked whether any public notices are given.
MR KLEIN answered yes; that FERC also maintains a distribution
list.
CHAIR STUTES asked whether there a charge for fish habitat
permits.
MR KLEIN said he did not know but he offered to research it and
report to the committee.
10:53:42 AM
RON BENKERT, Habitat Biologist, Division of Habitat, Alaska
Department of Fish & Game (ADF&G), responded that there is no
charge for a fish habitat permit; however, the division would be
compensated for the work through a reimbursable services
agreement (RSA).
10:54:51 AM
REPRESENTATIVE CHENAULT asked Mr. Klein if there were any
federal hydroelectric projects in the state.
MR KLEIN answered that one would be the Eklutna power plant, but
he was not aware of others.
REPRESENTATIVE CHENAULT asked who has authorization over federal
hydroelectric projects if Federal Energy Regulatory Commission
(FERC) is not the agency.
MR KLEIN answered that the federal hydroelectric projects
typically are ones built in the western United States by the
United States Bureau of Reclamation or the United States Army
Corps of Engineers, such as the Glen Canyon or Grand Coulee
dams.
REPRESENTATIVE CHENAULT responded that he was just curious.
10:56:32 AM
MR. KLEIN, in response to Representative Tarr, said that he did
not have any dealings with gas pipelines, but the main divisions
for hydropower are whether the projects are federal or not.
REPRESENTATIVE TARR remarked on the paradigm difference between
pipelines and hydropower projects.
10:57:25 AM
CHAIR STUTES asked for an estimate of the cost to the ADF&G per
application to apply to the Department of Natural Resources
(DNR) for a water reservation to protect salmon.
MR BENKERT answered that the department did not have a fish
habitat permit associated with a water reservation, but it would
be something negotiated.
10:58:20 AM
CHAIR STUTES restated her question, for an estimate of the cost
to the ADF&G per application to apply to the Department of
Natural Resources (DNR) for a water reservation to protect
salmon.
MR KLEIN responded that he had not calculated the cost. He
offered his belief that it would vary. One of the limitations
for obtaining water reservations or reservations of water would
be that the DNR requires five years of hydrologic data to
adjudicate the application. He stated that sometimes the data
is available through the United States geological survey. In
that instance it would be the staff time needed to prepare the
application. Once it was eligible for adjudication, it would be
the time spent working with DNR to adjudicate it, including
costs for public notice.
11:01:04 AM
The committee took a brief at-ease.
11:02:05 AM
JOHN BARNETT, Environmental Manager, Southcoast Region,
Department of Transportation & Public Facilities (DOT&PF),
stated that his presentation would focus on activities in fish
streams. He directed attention to slide 2, titled "DOT&PF
Activities in Fish Streams," which read as follows [original
punctuation provided]:
? Culverts (New)
? Culverts (Improvements)
? Culverts (Maintenance)
? Bridges (New)
? Bridges (Replacements)
? Bridges (Maintenance)
? Roadway Embankment Protection (Riprap Armoring)
? Stream Realignments (Airports, Roadways)
? Mitigation, Restoration, Enhancement
MR. BARNETT elaborated that some culverts were installed a
number years ago and some may need to be "upsized" to allow
adequate passage for fish fry or routine maintenance may be
necessary due to corrosion or pipe length. The Department of
Transportation & Public Facilities (DOT&PF) currently has been
going through its entire bridge inventory to identify and
replace bridges that need replacement. Routine maintenance
might mean replacement of riprap armoring around abutments below
the ordinary high water of a fish stream or piling replacement.
He noted a common activity within fish streams would be roadway
embankment protection, consisting of adding large rocks along a
roadway to protect the infrastructure from erosion due to flood
events or normal storm activity. Stream realignment might occur
if a runway needed to be extended and a stream might have to be
shifted around the runway extension. He related that the DOT&PF
has performed considerable mitigation and enhancement to
streams. For example, the department has performed watershed-
based permittee-responsible mitigation for impacts to wetlands
by improving fish habitat in drainages in major watersheds, he
said.
11:05:12 AM
REPRESENTATIVE TARR asked for further clarification on
watershed-based permittee-responsible mitigation.
MR. BARNETT responded that watershed-based permittee-responsible
mitigation was an allowable form of mitigation for impacts to
wetlands and other waters of the United States through the
{Section] 404 [Permit Program] process administered by the U.S.
Army Corps of Engineers (USACE). He described a scenario in
which a road may need to be widened, encroaching the wetlands;
however, there would not be any process to restore the fill area
in the wetlands. One option would be to buy credits into a
mitigation bank. A second option would be to pay in lieu fees,
or funds used to acquire high value wetlands that can be
protected over time. Third, the department could use the funds
to improve habitat. The department has repaired riparian
habitat in areas decimated by logging thirty or forty years ago.
He pointed out a project in Hyder, where impacts to the Salmon
River occurred when placing the roadway embankment in the river.
In that instance, the department's watershed-based mitigation
response was to fund a joint effort with the United States Fish
& Wildlife Service (USF&WS), the U.S. Forest Service, and Alaska
Department of Fish & Game (ADF&G) to construct rearing ponds and
spawning channels on the Marks Creek tributary to Fish Creek, a
large tributary to Salmon River, he said.
11:07:05 AM
REPRESENTATIVE TARR asked whether the state currently sponsors a
mitigation bank or if the department has a relationship with the
federal government to pay funds into a mitigation bank.
MR. BARNETT answered no. He said the department did not have a
mitigation bank; however, the Sealaska Corporation and the
Southeast Alaska Conservation Fund are mitigation banks, and the
Southeast Alaska Land Trust was also in-lieu fee land trust for
preservation funds. Mitigation banks must be not-for-profit
entities; thus, the state does not qualify as a mitigation bank,
he said. He stated that he researched the process to become a
mitigation bank and it would be challenging for the state to
become its own mitigation bank.
11:07:56 AM
CHAIR STUTES asked how often mitigation occurs onsite versus
offsite.
MR. BARNETT said the department was not capable of doing onsite
mitigation on most of its projects. Typically, the department
would have to go upstream or downstream from the site; for
example, when placing a culvert in a roadway that destroyed
riparian habitat. The DOT&PF would move as close to as possible
to the site but not directly on the site. He related a scenario
during the runway extension project at the Hoonah Airport, in
which the runway sat on the area impacted. Thus DOT&PF
realigned about a quarter mile of Coho Creek by adding sinuosity
and large, woody debris to create riparian habitat and a new
stream reach as its mitigation for the project.
11:09:11 AM
CHAIR STUTES asked how often maintenance occurs on culverts.
She said she often hears that replacing culverts would allow for
greater fish passage since many culverts are too small. She
further asked whether the DOT&PF has a replacement program.
MR BARNETT answered yes, the department does have a program to
replace culverts that impede fish passage. In addition, the
DOT&PF has a Memorandum of Agreement (MOA) with ADF&G on all its
road projects to improve fish passage that has become blocked or
was not adequately performing. Numerous roads were constructed
decades ago creating such issues, although many of the main
corridors have been upgraded, he said.
CHAIR STUTES responded that she was glad to hear of the program.
11:10:56 AM
REPRESENTATIVE KREISS-TOMKINS asked whether the DOT&PF had any
research or data that spoke to the biological productivity of
created habitat versus natural-occurring habitat.
MR BARNETT answered that considerable volumes of published data
exists. In addition, the DOT&PF has a monitoring program that
measures the success of artificial habitat for five to ten years
after a project has been completed to identify any deficiencies.
Further, the monitoring program has an adaptive management plan
to ensure if the habitat was not working effectively, that the
DOT&PF could go back and fix it. He indicated that the adaptive
management plans typically would be part of the USACE permitting
process along with installing site protection instruments and
conducting monitoring.
11:12:30 AM
REPRESENTATIVE KREISS-TOMKINS expressed interest on whether the
department had any baseline data prior to the project that could
be compared with post-project data. He further asked whether
Mr. Barnett could summarize the vast volumes of data to
determine the scientific consensus when comparing artificial
habitat with naturally-occurring habitat.
MR BARNETT responded that highway departments throughout the
country have impacted habitat over many years and various
agencies have established some basic parameters of how to
restore habitat. He described some ways the DOT&PF creates
artificial habitat, including anchoring large, woody debris,
replanting banks, and avoiding hydraulic jumps that might impede
migration of fry. He asked for clarification on the original
question.
REPRESENTATIVE KREISS-TOMKINS restated his question, which was
whether there was scientific consensus that compares artificial
habitat with original, natural habitat to ensure the artificial
habitat was equally as productive.
MR BARNETT answered yes; that often new habitat was found to be
better since impediments were removed. With respect to the
DOT&PF Hoonah Airport project, he stated that monitoring has
shown habitat has improved, that the biomass increased, and the
volume of fish has also increased. He summarized that often the
artificial habitat improved fish habitat or it stayed the same.
11:15:48 AM
REPRESENTATIVE TARR asked whether list of culvert sites that
identify those that need the most attention. She imagined that
the upgrades would occur as funding became available. She
reiterated her interest in a list of culverts the department
felt needed the most attention.
MR BARNETT responded that the department maintains a list of
specific structures, which is prioritized by ADF&G and other
agencies. He described it as a collaborative effort between the
DOT&PF, ADF&G, and federal agencies. He acknowledged that
Representative Tarr had "hit the nail on the head" with her
suggestion that it depended on funding as the DOT&PF has a
limited amount of funds; however, culvert replacement was one of
the things the region considers first when a project moves
forward in the Statewide Transportation Improvement Program
(STIP).
11:17:17 AM
MR. BARNETT reviewed slice 3, titled "Agency Involvement," which
read as follows [original punctuation provided]:
? Alaska Department of Fish and Game
? Alaska Department of Natural Resources
Alaska Department of Environmental Conservation
(Impaired Waters)
? Alaska Department of Environmental Conservation
(APDES)
? Environmental Protection Agency (Large Projects)
? U.S. Fish and Wildlife Service
NOAA Fisheries (NMFS) Protected Resources Division
? NOAA Fisheries (NMFS) Habitat Conservation
Division
? U.S Army Corps of Engineers
? FEMA Flood Map Service
? State Land Managers (DNR, OHA)
? Federal Land Managers (USFS, USFWS, BLM, NPS)
11:18:57 AM
MR. BARNETT referred to slide 4, titled "Existing Laws,
Regulations, Agreements," which read as follows [original
punctuation provided]:
? Clean Water Act, Section 401
? Clean Water Act, Section 404
? Clean Water Act, NPDES/APDES (Stormwater)
? Coastal Zone Management Act (Federal)
? Endangered Species Act (Terrestrial and Freshwater
Species)
? Fish & Wildlife Coordination Act
? Magnuson-Stevens Fishery Conservation & Management
Act (Essential Fish Habitat)
? Executive Order 11988, Floodplain Management
? Executive Order 11990, Protection of Wetlands
? Executive Order 13112, Invasive Species
11:19:16 AM
MR. BARNETT referred to slide 5, titled "Existing Laws,
Regulations, Agreements page...Agreements," which read as
follows [original punctuation provided]:
Agreements Specific to Fish Streams:
? DOT&PF/ADF&G MOA for Design, Permitting, and
Construction of Culverts for Fish Passage
? DOT&PF/ADF&G MOA for Implementing Safe Passage of
Anadromous and Resident Fish While Maintaining and
Improving State Transportation Infrastructure
? MOU between DNR, ADF&G Regarding Reviews of Land and
Water Use Activities
Projects that impact fish streams in marine,
intertidal, and estuaries must also
comply with:
? Endangered Species Act (Marine)
? Marine Mammal Protection Act (MMPA)
? Marine Protection, Research, and Sanctuaries Act,
Section 102/103
? Alaska National Interest Lands Conservation Act
(ANILCA) - Alaska Maritime Refuge
MR. BARNETT briefly reviewed the three Memorandums of Agreement
the department has with ADF&G. He specifically noted the detail
in the MOA for implementing safe passage of anadromous and
resident fish while maintaining and improving state
transportation infrastructure since this agreement sets the
standards for the fish pipes that the DOT&PF installs. He
reported that the Alaska Maritime Refuge basically surrounds all
communities on projects in the Aleutians. He stated that if a
bridge crosses a stream and under the jurisdiction of the ADF&G
and the NMFS, the DOT&PF may also need to obtain an incidental
harassment authorization from the NMFS. That authorization
could take from six to eighteen months to obtain and it also
required public noticing in the Federal Register.
11:20:59 AM
REPRESENTATIVE KREISS-TOMKINS said he was curious about that
last point - the DEC working with NMFS on incidental harassment.
He asked Mr. Barnett to specifically identify projects that
required incidental harassment authorization from the NMFS. He
wondered if those projects were ones like ferry terminals,
ports, and harbor projects.
MR. BARNETT responded yes, the DOT&PF administers the Southcoast
Region, which maintains and constructs all the ferry facilities
in Alaska. He further related that permits for these projects
all had to pass through NMFS, MMPA, and the Endangered Species
Act. He reported that the last permit he recalled was for Sand
Point on the Alaska Peninsula, which took 18 months to secure.
The DOT&PF currently has nine of those permits in process, he
said.
CHAIR STUTES recalled one of those permits had been overlooked
in Kodiak, which delayed the project for over a year.
MR. BARNETT acknowledged that was correct. He said in that
instance, the department had had an informal consultation with
NMFS but due to the discovery of additional marine mammals in
the area, the department had to re-initiate consultation with
the NMFS and request a formal consultation.
11:22:33 AM
REPRESENTATIVE KREISS-TOMKINS asked whether he could identify
the nine projects currently in the permit process. He further
asked whether the DOT&PF was working with NMFS in Alaska on the
permits or if the division was working with the Washington D.C.
office. He wondered whether it mattered if the marine mammals
were on the Endangered Species Act.
MR. BARNETT responded that there are six projects in the
permitting process in the Tongass Narrows in Ketchikan, four of
which were spinoffs from the Gravina Access Environmental Impact
Study [EIS]. Other projects included the Gustavus ferry
terminal and the Haines ferry terminal project, which had just
been completed. He did not recall the other two projects. He
related that the DOT&PF has worked with the Alaska NMFS Habitat
Conservation office on endangered species and the Silver
Springs, Maryland NMFS Protected Resources Division. At times
the two NMFS offices do not agree; however, the DOT&PF must
develop its biological assessments and the agencies subsequently
develop their opinions. He reported that one of the endangered
species in question was the "Mexican distinct population
segment" of humpback whales that migrates into Alaska waters,
noting the Marine Mammals Protection Act covered all marine
mammals.
11:24:46 AM
CHAIR STUTES observed that DOT&PF had memorandums of
understanding (MOUs), and she asked whether the MOUs have any
"teeth."
MR. BARNETT answered yes; that if the DOT&PF does not comply
with the MOAs or MOUs in effect, the department will not obtain
or retain any permits.
CHAIR STUTES commented that she was glad to hear that the MOUs
are effective.
11:25:50 AM
REPRESENTATIVE EASTMAN related his understanding that the DOT&PF
maintains the MOAs. He asked for any recent projects that may
have destroyed of salmon habitat.
MR. BARNETT acknowledged that the department has had projects
that are less successful; for example, two years ago the DOT&PF
added a multi-use path just past Auke Lake. The DOT&PF
constructed a habitat bench that did not perform as expected
with about 30 percent considered as not functioning. The DOT&PF
hired a team of consultants to develop a new program to restore
the bench, which should happen this summer. The DOT&PF has a
mitigation requirement in any USACE permits, which means the
department must undertake certain levels of mitigation. In the
event the DOT&PF did not remedy the problem, the DOT&PF would be
out of compliance with its permit and risk the USACE revoking
the permit.
11:28:35 AM
MR. BARNETT reviewed slide 6, titled "RSA's" which read as
follows [original punctuation provided]:
DOT&PF / ADF&G Reimbursable Services Agreements (RSA)
? RSA 2583602 Juneau Area Fish Habitat Permit Review &
Services
? RSA 2583603 Kodiak, Bristol Bay, Aleutian Area Fish
Habitat Permit Review & Services
? RSA2583601 Craig Area Fish Habitat Permit Review &
Services
? RSA 2533061 Hoonah Airport Monitoring PJ 683003
? RSA 2582040 Fairbanks DOT&PF Project Review
? RSA2582041 Anchorage DOT&PF Project Review
? RSA 2581605 Soldotna (Kenai Peninsula) Area Fish
Habitat Review Services
? RSA 2581604 Palmer (Mat-Su) Area Fish Habitat Review
Services
RSA 2581603 Anchorage Area Fish Habitat Review
Services
11:29:42 AM
MR. BARNETT referred to slide 7, titled "Permits in Fish
Streams," which read as follows [original punctuation provided]:
Title 16 Permit Required for activities below
Ordinary High Water of an anadromous or resident fish
stream. DOT&PF is required to obtain a Title 16 Fish
Habitat Permit to construct a hydraulic project, use,
divert, obstruct, pollute, or change the natural flow
or bed of a specified river, lake, or stream, or use
wheeled, tracked, or excavating equipment in the bed
of a specified river, lake, or stream.
Clean Water Act 404 Permit - DOT&PF is required to
obtain a permit from the USACE for any structure in
any waters of the U.S. (such as embankment armoring,
culverts, bridge piers or abutments).
Essential Fish Habitat Assessment Concurrence DOT&PF
must obtain concurrence from NOAA Fisheries (NMFS) per
the Magnuson-Stevens Act for activities or structures
in anadromous waters.
MR. BARNETT explained that under the Clean Water Act 404 Permit,
the DOT&PF must maintain its facilities.
11:30:47 AM
CHAIR STUTES asked whether there is a public process for the
permits [listed on slide 7].
MR. BARNETT answered yes. He referenced slide 8 titled, "NEPA
and Fish Streams," which read as follows [original punctuation
provided]:
National Environmental Policy Act (NEPA) requires
federal agencies to assess the environmental effects
of their proposed actions prior to making decisions,
including:
• making decisions on permit applications,
• adopting federal land management actions, and
• constructing highways and other publicly-owned
facilities.
Using the NEPA process, agencies evaluate the
environmental and related social and economic effects
of their proposed actions. Agencies must also provide
opportunities for public review and comment on those
evaluations.
Public Involvement is an integral component of the
NEPA Process
MR. BARNETT stated that the National Environmental Policy Act of
1969 governs almost all the DOT&PF projects. The DOT&PF, in its
federal highway capacity acts on behalf of the Federal Aviation
Administration (FAA). Most of the DOT&PF's projects are federal
projects and must comply with NEPA, which has a major public
process requirement.
11:31:33 AM
MR. BARNETT turned to the slide 9, titled "NEPA" which read as
follows [original punctuation provided]:
? NEPA is not a permit
? NEPA is an "Umbrella" Law
? NEPA is a Procedural Law
? NEPA applies to all Federal Projects, including
FHWA, FAA, & FTA PROJECTS
? NEPA applies to all State Projects if a Federal
Permit, Concurrence, or other Federal Action is
Required
MR. BARNETT stated that the DOT&PF must comply with all laws or
be subject to lose funding. Typically, the DOT&PF provides
information to the USACE on state projects if a federal action
or permit is required so that agency can complete its NEPA
process, he said.
11:32:14 AM
MR. BARNETT turned to slide 10, titled "DOT&PF Current Process
for Fish Streams," which read as follows [original punctuation
provided]:
? Design Engineering staff provide general project
concept to DOT&PF Environmental
? Environmental staff conduct desktop analysis of
project site using in-house and published resources
? Environmental staff determine NEPA Class of Action
(CE, EA, EIS)
? DOT&PF conducts site visit and develops Project
Management Plan (design parameters, ROW concerns,
environmental issues, etc.)
? Engineering staff develop preliminary design
drawings
? Environmental staff begin public and agency scoping
process and issue public notices
Environmental staff initiate consultation with
ADF&G, USFWS, NMFS
? Engineering and Environmental staff conduct
additional site visits to refine design and conduct
field studies
? Environmental staff and hydraulic engineering staff
collaborate with ADF&G and other agencies to insure
fish passage in design
? Environmental staff complete Essential Fish Habitat
Assessment for agency review (ADF&G, NMFS, USFWS)
and NMFS concurrence
? Design finalized, Permit applications submitted
11:33:13 AM
MR. BARNETT turned to slide 11, titled "Environmental/
Engineering Process," which read as follows [original
punctuation provided]:
? DOT&PF Environmental identifies locations of
catalogued fish streams in project footprint
? DOT&PF Environmental and Engineering staff conduct a
field visit / site investigation
? DOT&PF Environmental may identify additional streams
with suitable habitat that may require further study
? DOT&PF requests ADF&G staff determine which stream
crossings will need to accommodate fish passage
? DOT&PF conducts additional studies (such as fish
trapping) if ADF&G staff are unavailable
? DOT&PF (or its contractors) conduct a hydrologic and
hydraulic study of the proposed crossings in order to
develop a preliminary design.
? DOT&PF Environmental prepares Essential Fish Habitat
Assessment (EFHA) with adverse or no adverse
determination
? ADF&G, USFWS and NMFS provide comments and input to
allow DOT&PF to receive concurrence on EFHA
? ADF&G, USFWS, NMFS are consulted regarding design.
Agency field reviews may be conducted when appropriate
? If ADF&G and other agencies have no further issues
or concerns, the design is finalized and a Title 16
permit application is developed by DOT&PF
Environmental in collaboration with Regional Hydraulic
Engineer
MR. BARNETT explained that during the design process the
regional hydraulic engineers, the ADF&G, USFWS, and NMFS develop
a design that in most cases improves fish passage. Once the
permits have been issued the division's hydraulic engineering
and environmental staff monitor the project during construction
to ensure compliance and to make sure the pipes perform
adequately. If the ADF&G is not available to perform the field
work, the DOT&PF would use its specialized staff to do so and
report the data to ADF&G.
MR. BARNETT added that the RSAs are not only used to identify
fish streams but also are used for monitoring during
construction. The ADF&G can visit projects at any time, he
said.
11:35:14 AM
MR. BARNETT referred to slide 13, titled "Public Involvement."
which read as follows [original punctuation provided]:
DOT&PF Process
? Public Notice & Request for Comments at start of
environmental scoping process
? Public Workshops for larger projects (dependent upon
impacts)
? Public Informational Meetings for larger projects
(dependent upon impacts)
? Public Notice Comment Period typically 30 days
? Public Notice Comment Period can range from 14 days
for routine (maintenance) projects to 45-60 days for
large projects (EA's & EIS's)
USACE Process
? Public Notice and Request for Comments following
Corps determination that permit application is
complete
? Public Notice Comment Period typically 14 to 30 days
MR. BARNETT reviewed the DOT&PF public process on slide 13. He
noted that for the Gravina Access Project in Ketchikan, the
department held nine separate public meetings. Interested
parties can request a public hearing through the USACE, he said.
Projects that fall in an intertidal area that would require
piledriving must also have an incidental harassment
authorization from NMFS or a biological opinion and concurrence
from the Habitat Conservation Division for endangered species.
Those types of projects would also be published in the Federal
Register for 45 days. He characterized the DOT&PF public
noticing process as being "fairly robust."
11:37:49 AM
MR. BARNETT referred to slide 14, titled "Mitigation," which
read as follows [original punctuation provided]:
Impacts to anadromous waters routinely require
mitigation to offset temporary or permanent loss of
essential fish habitat (riparian cover, large woody
debris, loss of sinuosity, etc.)
? Mitigation typically includes riparian habitat
restoration or enhancement at project site
? Mitigation efforts are also routinely conducted
away from actual project site:
square4 Wrangell Airport Mitigation Falls Creek and
Anan Creek Fish Ladders
square4 Hyder Salmon River Road Mitigation Marx Creek
Rearing Pond & Spawning Channels
square4 Dyea Road Mitigation West Creek Tributary
Fish Pipe Improvements
MR. BARNETT explained the mitigation efforts for the Wrangell
Airport Runway Extension, noting that the DOT&PF purchased
mitigation credits. He said that with the Dyea Road Mitigation
the department completed a project in the national park on a
tributary and replaced a culvert.
11:40:29 AM
REPRESENTATIVE KREISS-TOMKINS commented that it was good to hear
about the DOT&PF's productive engagement on preserving this
habitat.
REPRESENTATIVE TARR asked whether the public in an affected area
were notified by mail for upcoming projects.
MR. BARNETT responded that all the DOT&PF projects have an
online public notice in the state's online system. The DOT&PF
publishes in communities with media, such as Juneau, Sitka,
Anchorage, Ketchikan, and Fairbanks. The DOT&PF sometimes
publishes a map of the area and conducts public service
announcements (PSAs), he said. For example, locally, with the
Brotherhood Bridge replacement [2015], the DOT&PF went door-to-
door advising the neighborhood about noise that would occur when
piledriving 45-inch pilings. He acknowledged that the
department also sends out localized mailouts to people who would
be directly impacted by a project, as well as taking a broader
approach by using the media.
11:42:45 AM
REPRESENTATIVE TARR offered her belief that the best method to
reach the public in her area seemed to be by mail since many
people no longer subscribe to newspapers.
MR. BARNETT agreed; but noted that the department also creates a
website for its larger projects; for example, it just posted the
entire state environmental document online. He offered his
belief that the DOT&PF has tried to make information available
and to be as transparent as possible.
REPRESENTATIVE TARR acknowledged that in the past few years she
has been able to get a color-coded map in Anchorage of state and
local projects.
11:44:07 AM
REPRESENTATIVE TARR wondered if other staff in DOT&PF was as
experienced as he was since job retention has been a problem for
the state and she would hate to lose his expertise.
MR. BARNETT responded that the department has a comprehensive
training process within DOT&PF for its environmental analysts,
which includes an environmental procedures manual that describes
how to monitor the DOT&PF projects. The environmental
procedures manual was developed by the statewide environmental
office, which is modified and updated annually. The DOT&PF
updated its training manual and provides extensive training, he
said. He expressed confidence in his staff.
REPRESENTATIVE TARR commented that the legislature has been
hearing about recruitment and retention issues and she worried
about losing the institutional knowledge.
11:46:51 AM
REPRESENTATIVE TARR related her understanding that eliminating
dams and upgrading culverts has been recognized as "best
practices." She wondered if he could identify other things that
the department has been doing differently.
MR. BARNETT responded that the department uses hydraulic
engineers who pay close attention to the gradients, the type of
pipe, and the depth of burial. In addition, the DOT&PF has
tried to create natural environments; for example, it uses fish
rock to recreate a stream bed within the culvert pipes. In some
instances, the department has used bottomless arches or
structural plate arches to maintain the natural stream bed and
substrate below the pipe. He noted that in Angoon, the DOT&PF
constructed the entire runway and safety area above an arch. He
acknowledged that the DOT&PF has strived to make things better
whenever possible.
11:49:55 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 11:50
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| FERC Presentation to House Fisheries Feb 2018.pdf |
HFSH 2/8/2018 10:00:00 AM |
HB 199 |
| DOT&PF permitting presentation.pdf |
HFSH 2/8/2018 10:00:00 AM |
HB 199 |
| DEC permitting overview.pdf |
HFSH 2/8/2018 10:00:00 AM |
HB 199 |
| House Fisheries Comm hearing 2.8.18 response.pdf |
HFSH 2/8/2018 10:00:00 AM |
HB 199 |