Legislature(2017 - 2018)GRUENBERG 120

02/15/2018 11:00 AM FISHERIES

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

Audio Topic
11:08:47 AM Start
11:10:14 AM Presentation on the Permitting Process by Dnr
11:37:35 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation on the Permitting Process by DNR TELECONFERENCED
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              HOUSE SPECIAL COMMITTEE ON FISHERIES                                                                            
                       February 15, 2018                                                                                        
                           11:08 a.m.                                                                                           
MEMBERS PRESENT                                                                                                               
Representative Louise Stutes, Chair                                                                                             
Representative Jonathan Kreiss-Tomkins                                                                                          
Representative Geran Tarr                                                                                                       
Representative David Eastman                                                                                                    
Representative Mark Neuman                                                                                                      
MEMBERS ABSENT                                                                                                                
Representative Zach Fansler                                                                                                     
Representative Bryce Edgmon                                                                                                     
Representative Mike Chenault                                                                                                    
COMMITTEE CALENDAR                                                                                                            
PRESENTATION(S): DNR PERMITTING PROCESS                                                                                         
     - HEARD                                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
No previous action to record                                                                                                    
WITNESS REGISTER                                                                                                              
KYLE MOSELLE, Associate Director                                                                                                
Office of Project Management and Permitting (OPMP)                                                                              
Department of Natural Resources (DNR)                                                                                           
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided a PowerPoint presentation on the                                                                
permitting process by DNR and answered questions from the                                                                       
BRENT GOODRUM, Director, Central Office                                                                                         
Division of Mining, Land and Water (DML&W)                                                                                      
Department of Natural Resources (DNR)                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Answered questions during the presentation                                                               
on the permitting process by DNR.                                                                                               
ACTION NARRATIVE                                                                                                              
11:08:47 AM                                                                                                                   
CHAIR  LOUISE  STUTES  called  the  House  Special  Committee  on                                                             
Fisheries  meeting  to  order  at  11:08  a.m.    Representatives                                                               
Stutes,  Kreiss-Tomkins, Neuman,  and  Tarr were  present at  the                                                               
call to  order.   Representative Eastman  arrived as  the meeting                                                               
was in progress.                                                                                                                
^Presentation on the Permitting Process by DNR                                                                                  
         Presentation on the Permitting Process by DNR                                                                      
11:10:14 AM                                                                                                                   
CHAIR STUTES announced  that the only order of  business would be                                                               
a "Presentation on the Permitting Process by DNR."                                                                              
11:10:38 AM                                                                                                                   
KYLE MOSELLE,  Associate Director,  Office of  Project Management                                                               
and  Permitting (OPMP),  Department of  Natural Resources  (DNR),                                                               
introduced himself.  He turned  to slide 2, titled "Department of                                                               
Natural Resources,"  which read as follows  [original punctuation                                                               
     Our mission:  Develop, Conserve,  and maximize  the use                                                                    
     of  Alaska's  natural  resources  consistent  with  the                                                                    
     public interest.                                                                                                           
     What we  do: DNR  manages all state-owned  land, water,                                                                    
     and  natural resources,  except for  fish and  game, on                                                                    
     behalf of Alaskans.                                                                                                        
     How  we  are  organized:  DNR  is  comprised  of  seven                                                                    
     divisions that reflect its major programs.                                                                                 
11:13:00 AM                                                                                                                   
MR. MOSELLE turned to slide 3,  titled "Key Terms," which read as                                                               
follows [original punctuation provided]:                                                                                        
     Sec. 38.05.965. Definitions (abbreviated)                                                                                
     (14)  "navigable water"  means any  water of  the state                                                                  
     forming a  river, stream,  lake? sea  or ocean,  or any                                                                    
     other body of water  or waterway within the territorial                                                                    
     limits  of the  state  or subject  to its  jurisdiction                                                                    
     that is navigable in fact in  any season, ? and for any                                                                    
     useful public purpose?;                                                                                                    
     (21)  "public  water"  means navigable  water  and  all                                                                  
     other water, whether inland or  coastal, fresh or salt,                                                                    
     that  is   reasonably  suitable  for  public   use  and                                                                    
     utility, habitat  for fish and wildlife  in which there                                                                    
     is  a public  interest,  or migration  and spawning  of                                                                    
     fish in which there is a public interest;                                                                                  
     (23)  "shoreland" means  land  belonging  to the  state                                                                  
     which is covered by nontidal  water that is navigable                                                                      
     up to ordinary high water mark ?;                                                                                          
     (24) "state  land" or "land" means  all land, including                                                                  
     shoreland, tideland,  and submerged land,  or resources                                                                    
     belonging to or acquired by the state;                                                                                     
     (25)  "submerged  land"  means land  covered  by  tidal                                                                  
     water  between  ?  mean  low water  and  seaward  to  a                                                                    
     distance of three geographical miles ?;                                                                                    
     (26)  "tideland"   means  land  that   is  periodically                                                                  
     covered by  tidal water between  the elevation  of mean                                                                    
     high water and mean low water;                                                                                             
11:13:49 AM                                                                                                                   
REPRESENTATIVE NEUMAN asked whether the department has public                                                                   
noticed changes for definitions of water quality and noted that                                                                 
this would be useful information for [HB] 199.                                                                                  
CHAIR STUTES stated that she wanted to caution the committee                                                                    
that this presentation relates to the current permitting                                                                        
process. but it has nothing to do with HB 199.                                                                                  
REPRESENTATIVE NEUMAN acknowledged the presentation would be                                                                    
beneficial for the committee.                                                                                                   
11:15:23 AM                                                                                                                   
MR. MOSELLE deferred to the division director, Brent Goodrum, to                                                                
11:15:41 AM                                                                                                                   
BRENT  GOODRUM, Director,  Central  Office,  Division of  Mining,                                                               
Land and  Water (DML&W), Department  of Natural  Resources (DNR),                                                               
answered that water  quality falls under the  jurisdiction of the                                                               
Department  of Environmental  Conservation (DEC).   The  division                                                               
has  a   scoping  process  pertaining   to  some  of   its  water                                                               
regulations,  but typically  it  does not  involve water  quality                                                               
11:16:40 AM                                                                                                                   
MR. MOSELLE turned  to slide 4, titled "Division  of Mining, Land                                                               
and   Water,"  which   read,  in   part,  as   follows  [original                                                               
punctuation provided]:                                                                                                          
     Generally Allowed Uses                                                                                                   
     ?As provided in 11 AAC 96.020                                                                                              
     ?Travel across state lands                                                                                                 
     ?Aircraft landing                                                                                                          
     ?Use of watercraft                                                                                                         
     ?Anchoring mooring buoy                                                                                                    
     ?Hunting, fishing, trapping, gathering                                                                                     
    ?Recreational      gold     panning/prospecting/suction                                                                     
     Permit/Authorization/ Approval                                                                                           
     ? Mineral exploration & mining                                                                                             
     ? Placer mining                                                                                                            
     ? Temporary water withdrawal                                                                                               
     ? Commercial recreation activities                                                                                         
     ? Floating dock                                                                                                            
     ?Notice of application may be provided                                                                                     
     Easement & Leases                                                                                                        
     ? Rights-of-way                                                                                                            
     ?Utility easement                                                                                                          
     ?Boat launch                                                                                                               
     ?Aquatic farm site                                                                                                         
     ?Marine access facility (commercial dock)                                                                                  
     ?Public notice required                                                                                                    
     ?Best Interest Finding required                                                                                            
MR. MOSELLE stated  that the DML&W regulates a  broad spectrum of                                                               
activities  using various  tools,  guided  in its  administrative                                                               
decisions  by   the  Alaska   Constitution,  state   law,  agency                                                               
regulations,  and  policies,  DNR   area  and  management  plans,                                                               
previous decisions, and case law.                                                                                               
MR.  MOSELLE said  that many  uses and  activities are  generally                                                               
allowed on state land managed by  the division and do not require                                                               
prior  approval from  the division  provided standard  conditions                                                               
are followed.   Uses and  activities on  state land that  are not                                                               
generally allowed  under state law require  written authorization                                                               
from  the division.   He  said  that land  use permits  authorize                                                               
temporary,  non-exclusive  activities  that  can  be  effectively                                                               
managed  through project  specific conditions.   As  a matter  of                                                               
agency policy,  applications are  posted to the  statewide online                                                               
public notice website.  Easements  and leases convey and interest                                                               
for use  of state land; therefore,  the division must find  it is                                                               
in  the  best  interests  of  the  state  prior  to  granting  an                                                               
"easement release" and public notice is required.                                                                               
11:17:48 AM                                                                                                                   
CHAIR  STUTES asked  whether there  was a  public process  on all                                                               
approvals for permits.                                                                                                          
MR. MOSELLE responded  by referring to slide 4,  to the generally                                                               
allowed uses  provided in 11  AAC 96.020.  That  regulation would                                                               
have gone  through a  rule-making process  to define  those uses;                                                               
thus, those allowable uses do  not require a full public noticing                                                               
process.   He  stated that  applications under  the middle  tier,                                                               
titled  "Permit/Authorization/Approval" as  a matter  of division                                                               
policy  would  be public  noticed  through  the statewide  online                                                               
notice  website.   Applications under  the third  tier, "Easement                                                               
and Leases," by statute require public notice, he said.                                                                         
11:18:59 AM                                                                                                                   
REPRESENTATIVE NEUMAN  asked whether the  uses listed on  slide 4                                                               
under  the second  tier "Permit/Authorization/Approval"  also had                                                               
an  approval process  within other  departments; for  example, he                                                               
said  that  floating docks  would  require  approval from  Alaska                                                               
Department of Fish & Game's  (ADF&G's) Division of Sport Fish and                                                               
Division  of Habitat.    He asked  for  further clarification  on                                                               
other departments' roles in the permitting process.                                                                             
MR. MOSELLE  answered yes.   He agreed  there may be  other state                                                               
permit  authorizations,  laws,  and  regulations  that  apply  to                                                               
permitted  activities.     During its  review  process the  DML&W                                                               
would  consult  with the  other  departments  as needed  in  that                                                               
peripheral   relationship;  however,   the  applicant   would  be                                                               
responsible for securing all federal,  state, and local approvals                                                               
for the activity, he said.                                                                                                      
11:20:21 AM                                                                                                                   
REPRESENTATIVE   NEUMAN  related   his  understanding   that  the                                                               
departments worked collaboratively with other agencies.                                                                         
CHAIR  STUTES  related  that  in  its  presentation,  the  Alaska                                                               
Department of Fish & Game  (ADF&G), Division of Habitat went into                                                               
more  depth on  the various  departments and  agencies that  work                                                               
together on  permits.  She  acknowledged that his point  was well                                                               
REPRESENTATIVE  NEUMAN  concurred  that there  were  "checks  and                                                               
balances" in the permitting process.   It was not just one person                                                               
making the approval decision, he said.                                                                                          
11:21:13 AM                                                                                                                   
MR. MOSELLE  turned to  slide 5,  titled "Single  Agency Review,"                                                               
which depicted  process diagrams,  which contained  the following                                                               
headings and action items, as follows:                                                                                          
        Completeness review                                                                                                     
        Consider proposed action                                                                                                
        Review relevant resource data                                                                                           
        Review ownership and legal data                                                                                         
        Determine classification                                                                                                
        Review relevant area or management plan                                                                                 
     Agency Review                                                                                                            
        Develop maps and necessary information                                                                                  
        Identify conditions, stipulations, mitigation                                                                           
        Conduct interagency consultation                                                                                        
        Consult applicant on issues of concern                                                                                  
     Preliminary Decision                                                                                                     
        Draft preliminary decision                                                                                              
MR. MOSELLE  stated that this slide  and the next slide  showed a                                                               
generalized summary of a single-agency  review by the Division of                                                               
Mining, Land & Water (DML&W) for  a process related to a lease or                                                               
11:21:25 AM                                                                                                                   
MR. MOSELLE explained  the application process, such  that once a                                                               
completed  application was  received by  the division,  technical                                                               
staff would  research relevant resource  data and area  plans and                                                               
develop  supporting  information  and would  consult  with  other                                                               
state agencies.   For example,  during the division's  review, it                                                               
would consult  with ADF&G  to gather  relevant fish  and wildlife                                                               
information  and evaluate  potential  impacts  from the  proposed                                                               
activity  on important  habitats  or known  harvest  areas.   The                                                               
division staff would  also consult with the  applicant to discuss                                                               
issues of  concern.   All information would  then be  compiled in                                                               
the  project record  and  the agency  would  draft a  preliminary                                                               
decision for management review.                                                                                                 
11:22:05 AM                                                                                                                   
MR.  MOSELLE turned  to slide  6, titled  "Single-Agency Review,"                                                               
which   depicted   a   diagram   showing   public   notices   and                                                               
coordination.   He stated that  the division would  public notice                                                               
the  decision in  local newspapers  and on  the statewide  online                                                               
public notice  website.  The  division would then  collect public                                                               
input, consider  each comment received  during the  public notice                                                               
period,  and consult  with other  state  agencies on  substantive                                                               
issues.   The  final decision  would then  be public  noticed, he                                                               
11:23:25 AM                                                                                                                   
REPRESENTATIVE NEUMAN  offered his  belief that the  division was                                                               
working to  reduce federal paperwork and  conduct inspections for                                                               
small mining operations.                                                                                                        
MR.  GOODRUM responded  that  one important  issue  to miners  in                                                               
Alaska was  in places where  the state had  state-selected lands.                                                               
Last  year  the  division  brought in  approximately  17  federal                                                               
mining  claims,  he  said.   Several  months  ago,  the  division                                                               
brought in 709 acres immediately  adjacent to the Fort Knox mine,                                                               
which would  allow that small  operation to continue  to operate.                                                               
Further, the division recently received  a decision from the U.S.                                                               
Bureau of  Land Management (BLM)  regarding land in and  near the                                                               
Graphite One  Resources, Inc. project.   He anticipated  that the                                                               
division would be  able to bring in both mining  claims and allow                                                               
them to be converted to state  claims, he said.  He characterized                                                               
this as being an important issue to Alaska.                                                                                     
11:25:27 AM                                                                                                                   
REPRESENTATIVE  NEUMAN commented  that  this  project could  help                                                               
small miners  since the permitting  authority would be  in Alaska                                                               
and  the state  would be  more  familiar with  the processes  and                                                               
local issues.                                                                                                                   
11:25:41 AM                                                                                                                   
REPRESENTATIVE TARR referred to  slides 5-6, regarding the single                                                               
agency review  and the public  noticing.  She  directed attention                                                               
to  the Temporary  Water  Use Authorization  (TWUA)  on slide  7,                                                               
[consisting  of a  flowchart of  the  permitting process],  which                                                               
does not seem  to have a public process.   She suggested that the                                                               
department may  wish to  add a public  review component  to this.                                                               
She  further  noted that  there  may  be other  circumstances  of                                                               
single-agency  review that  do  not solicit  public  input.   She                                                               
related  her understanding  that a  scoping period  was begun  to                                                               
collect public comments on the  Temporary Water Use Authorization                                                               
(TWUA)  and asked  for  further clarification  on  the status  of                                                               
public input.                                                                                                                   
MR. MOSELLE, in  response, referred to the "key" on  slide 7.  He                                                               
explained  that  the yellow  box  around  the TWUA  represents  a                                                               
"courtesy  public notice,"  which was  a term  used to  mean that                                                               
there was  not a  statutory or  regulatory requirement  to public                                                               
notice for that specific activity as  there would be for a lease,                                                               
easement, or  water right.   He explained  that the red  boxes on                                                               
the chart  represent "public notice required,"  either by statute                                                               
or regulation.   He clarified that  as a matter of  DNR's policy,                                                               
the  TWUA  applications would  be  posted  on the  online  public                                                               
notice website.                                                                                                                 
11:27:55 AM,                                                                                                                  
MR.  GOODRUM offered  further clarification  on TWUAs,  such that                                                               
the TWUA  authorizations never advance  to become  "water rights"                                                               
and would  always be revocable at  will by the state.   He stated                                                               
that  these  TWUA  authorizations  were ones  generally  used  on                                                               
projects throughout the state, but  were of limited duration, not                                                               
to exceed  five years.  He  acknowledged that DNR does  reach out                                                               
to  ADF&G and  DEC  to ensure  that any  issues  or concerns  are                                                               
addressed  within  the  DNR's  TWUA  process.    As  Mr.  Moselle                                                               
previously  mentioned,  the  division  provides  courtesy  public                                                               
notification of any TWUA applications received.                                                                                 
11:29:09 AM                                                                                                                   
REPRESENTATIVE  TARR  asked  whether  the  courtesy  notice  also                                                               
includes a public comment period.                                                                                               
MR.  GOODRUM answered  that there  was not  necessarily a  formal                                                               
"public comment" opportunity; however,  any feedback or input the                                                               
division  received would  be considered  during the  adjudication                                                               
process for the  application.  He commented that there  was not a                                                               
"hard set" 30-day period established for public comment.                                                                        
11:29:55 AM                                                                                                                   
REPRESENTATIVE TARR pointed  out that this was an  issue that was                                                               
brought to her attention as an  area that might be one which [the                                                               
legislature] might  wish to  address statutorily.   She  said she                                                               
was  not as  familiar with  some of  the authorizations  but will                                                               
research some  of the yellow  boxes for authorizations  listed on                                                               
slide 7.   She referred to Administrative Order  266, noting that                                                               
some  people had  submitted comments  calling for  reform on  the                                                               
TWUA  process,  including for  public  comment.   She  asked  for                                                               
further  clarification on  whether  the  division had  considered                                                               
formalizing  the  public  comment  period or  if  the  department                                                               
believes it has  been receiving enough feedback  from the public.                                                               
She acknowledged  some permits would  be less  controversial than                                                               
MR.  GOODRUM responded  that the  division has  received comments                                                               
through the  water rights' regulations  process and  the division                                                               
has been  evaluating all  the comments; however,  it has  not yet                                                               
come to any consensus on any  necessary revisions.  To the degree                                                               
that the  division has not  performed any scoping in  some areas,                                                               
the division  would address any  issues that arise at  that time,                                                               
he  said.    In  further  response  to  Representative  Tarr,  he                                                               
restated his  comments on water  regulations and scoping  and how                                                               
the division might better look at the processes.                                                                                
11:32:35 AM                                                                                                                   
REPRESENTATIVE TARR  asked to  make some  generic comments.   She                                                               
said  that she  wanted  to address  the  public process  concerns                                                               
because  she has  heard concerns  voiced by  some members  of the                                                               
public  about   the  "lack  of  public   process;"  however,  she                                                               
acknowledged  that some  of  the concerns  expressed  may not  be                                                               
related  to a  specific project.    She offered  her belief  that                                                               
sometimes   trust  can   be  broken   between  the   public,  the                                                               
department, and the  developer in instances in  which people feel                                                               
the  public process  is lacking.    She expressed  hope that  the                                                               
division   would   consider   revisions   to   allow   for   more                                                               
collaboration on the  front end of projects  to potentially avoid                                                               
longer delays  that result  from lawsuits.   She  reiterated that                                                               
sometimes  people  feel  the  department   has  not  made  enough                                                               
information available.                                                                                                          
11:33:42 AM                                                                                                                   
MR. MOSELLE directed  attention to slide 8,  titled "In Summary,"                                                               
which read as follows:                                                                                                          
     DNR manages all state-owned land, water and natural                                                                        
     resources, except for fish and game, on behalf of the                                                                      
     people of Alaska.                                                                                                          
     Proposed uses of those resources may be generally                                                                          
     allowed, or require written authorization from DNR.                                                                        
     Approvals that diminish state interest must be found                                                                       
     to be in the best interest of the state and publicly                                                                       
     DNR consults other state agencies and grants deference                                                                     
     to ADF&G on fish and wildlife matters and ADEC on                                                                          
     water quality.                                                                                                             
     For large projects, OPMP facilitates intergovernmental                                                                     
     coordination with state, federal, and local government                                                                     
     agencies to ensure effective communication, less                                                                           
     duplication, and greater consistency in the permitting                                                                     
MR.  MOSELLE  added that  leases  and  easements that  convey  an                                                               
interest and use  of state lands require  a best-interest finding                                                               
and public notice process.                                                                                                      
11:34:22 AM                                                                                                                   
CHAIR  STUTES remarked  that the  department must  be considering                                                               
some  significant involvement  in  the proposed  road project  in                                                               
King Cove  [a proposed  12-mile road corridor  from King  Cove to                                                               
the  Cold  Bay  Airport,  connecting to  existing  roads  in  the                                                               
Izembek National  Wildlife Refuge], and  she queried if  that was                                                               
the case.                                                                                                                       
11:35:22 AM                                                                                                                   
REPRESENTATIVE TARR  related her  understanding that  the project                                                               
involved a land transfer between  the regional Native Corporation                                                               
and  the   federal  government  since   refuge  lands   would  be                                                               
transferred to  the corporation.   She  expressed an  interest in                                                               
whether the  federal government would  maintain an  ownership and                                                               
if the project would go through the state's permitting process.                                                                 
CHAIR STUTES asked for further clarification.                                                                                   
11:35:54 AM                                                                                                                   
MR. GOODRUM  responded that land  exchange was between  the local                                                               
community [Aleutians  East Borough]  and the  federal government.                                                               
He anticipated that  if a road was being built  at King Cove that                                                               
the  Department of  Transportation &  Public Facilities  (DOT&PF)                                                               
would be involved; however, he said  he was uncertain as to other                                                               
activities,  noting  that  any   water  authorizations  would  be                                                               
reviewed by the division.                                                                                                       
CHAIR  STUTES  commented that  she  was  just curious  about  the                                                               
state's involvement.                                                                                                            
11:37:35 AM                                                                                                                   
There being no  further business before the  committee, the House                                                               
Special  Committee on  Fisheries meeting  was adjourned  at 11:37                                                               

Document Name Date/Time Subjects
House_Fisheries-DNR-2-15-18-final.pdf HFSH 2/15/2018 11:00:00 AM
HB 199