Legislature(2017 - 2018)GRUENBERG 120
02/06/2018 11:00 AM House FISHERIES
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| Presentation on the Permitting Process by Adf&g | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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| + | TELECONFERENCED | ||
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 6, 2018
11:17 a.m.
MEMBERS PRESENT
Representative Louise Stutes, Chair
Representative Jonathan Kreiss-Tomkins
Representative Geran Tarr
Representative Mike Chenault
Representative David Eastman
MEMBERS ABSENT
Representative Zach Fansler
Representative Mark Neuman
COMMITTEE CALENDAR
PRESENTATION ON THE ADF&G PERMITTING PROCESS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
RON BENKERT, Habitat Biologist
Division of Habitat
Alaska Department of Fish & Game (ADF&G)
Central Region
Anchorage, Alaska
POSITION STATEMENT: Presented a PowerPoint on the permitting
process by ADF&G.
ACTION NARRATIVE
11:17:22 AM
CHAIR LOUISE STUTES called the House Special Committee on
Fisheries meeting to order at 11:17 a.m. Representatives Stutes
and Tarr were present at the call to order. Representatives
Kreiss-Tomkins, Eastman, and Chenault arrived as the meeting was
in progress.
^Presentation on the Permitting Process by ADF&G
Presentation on the Permitting Process by ADF&G
11:18:22 AM
CHAIR STUTES announced that the only order of business would be
a presentation on the permitting process by ADF&G [Alaska
Department of Fish & Game]. She reminded members that a bill is
not before the committee and to refrain from asking the
presenter to comment on any permitting bill.
11:20:32 AM
RON BENKERT, Habitat Biologist, Division of Habitat (Habitat),
Alaska Department of Fish & Game (ADF&G), Central Region, began
his presentation on slide 1, titled, "Fish Protection Laws in
Alaska; ADF&G Statutory Authority." The photograph on slide 1
depicts replacing a bad culvert with one that allows for fish
passage, he said.
MR. BENKERT referred to slide 2, titled "Discussion Objectives"
which read as follows [original punctuation provided]:
Provide an overview of ADF&G Statutory Authority for fish
and wildlife habitat protection
Identify jurisdictional boundaries of our statutes
Practical application of ADF&G Authority Fish Habitat
Permits
11:21:40 AM
MR. BENKERT referred to slide 3, titled "Permits and
Authorizations" and to a table listing the permitting agencies
and area of authority for any anadromous fish bodies. Besides
the ADF&G's Division of Habitat [often known as the "habitat
division" or "habitat"], the agency that issues fish habitat and
other permits, other agencies also issue permits and
authorizations on projects, including the U.S. Army Corps of
Engineers, the Department of Natural Resources (DNR), local
governments, the Department of Environment Conservation (DEC)
and land managers, such as the federal Bureau of Land Management
(BLM).
11:22:27 AM
MR. BENKERT referred to slide 4, titled, "ADF&G's Role in
Resource Development" which read, as follows [original
punctuation provided]:
Protect Alaska's valuable fish and wildlife resources and
their habitats as Alaska's population and economy continue
to expand.
MR. BENKERT said that habitat biologists strive to find the
balance between resource development and resource protection for
habitats. The Division of Habitat's staff negotiate with
applicants to ensure that project impacts are avoided or
minimized prior to the issuance of permits. For example, an
applicant may initially apply for a permit to install a culvert
but after consulting with the division will decide to build a
bridge to protect fish habitat. Incidentally, the habitat
division has so few denials because applicants sometimes
withdraw their applications rather than go through the denial
process, he said.
11:24:11 AM
MR. BENKERT said that the Anadromous Fish Act in Title 16 has
has not changed since the early 60s, but "Habitat" has not been
working in a vacuum. The division's biologists use tools such
as working guidelines and technical reports to guide them. For
example, new blasting standards help inform the division's
permitting decisions. He added that the "Habitat Division"
works with DOT&PF on culvert projects to ensure the pipe allows
for fish passage.
11:24:55 AM
REPRESENTATIVE TARR asked who developed the new standards. She
wondered whether the division has enough flexibility in its
regulatory authority to respond to a new standard that is not
generated by the department.
MR. BENKERT responded that there are a couple standards. He
said he was just referring to the Memorandum of Understanding
(MOU) with the DOT&PF relating to culvert standards for culvert
replacement in fish-bearing streams. The Habitat Division and
the DOT&PF are using the newer standards, for example increasing
the size of the pipe. He emphasized that the DOT&PF has been
very cooperative by using the cutting-edge standards from the
Pacific Northwest. He said that the Juneau staff have
physically measured blasts near creeks to determine what will
protect fish and fish habitat in salmon-bearing waterbodies.
11:26:35 AM
MR. BENKERT referred to slide 5, titled, "Workload Priorities"
which read as follows [original punctuation provided]:
Title 16 permitting and enforcement
Field work - research, inspections
AWC surveys
Large projects of importance to the State
Forest Resources and Practice Act
Special Area Planning
MR. BENKERT said the Habitat Division's top workload priorities
focus on Title 16 permitting and enforcement. Examples of field
work include inspections of culverts prior to diverting the
stream. The division also conducts planning and research that
helps the division make sound permitting decisions.
11:27:34 AM
CHAIR STUTES asked for further clarification on the types of
enforcement or enforcement tools the division uses.
MR. BENKERT described the enforcement process; for example, if
the division discovers an egregious violation that needs to be
enforced, the Habitat Division will work with the Alaska
Department of Public Safety (DPS), Alaska Wildlife Troopers
(AWT). He clarified that environmental crimes often are civil
crimes. The Habitat Division generate a notice of violation,
stating the violation, [which often falls under AS 16.05.871,
the Anadromous Fish Act], and the DPS, AWT then serves the
party.
11:29:38 AM
MR. BENKERT reviewed slide 6, titled, "ADF&G Statutory Authority
Fish Protection" which read as follows:
THE FISHWAY ACT
AS 16.05.841
ANADROMOUS FISH ACT
AS 16.05.871
SPECIAL AREA PERMITTING
5 AAC 95.970
FISH RESOURCE PERMIT
Required for handling or transporting fish during
dewatering or diversion (Division of Sport Fish)
MR. BENKERT explained that the Fishway Act relates to any fish-
bearing water body; however, it does not need to be an
anadromous stream. He reported that "anadromous" fish are not
limited to salmon, but include species such as pacific lamprey,
hooligan, whitefish, and sticklebacks. He stated that the
Alaska Department of Fish & Game (ADF&G) also issue permits for
those conducting research.
11:31:12 AM
MR. BENKERT reviewed slide 7, titled, "Fishway Act" which read
as follows [original punctuation provided]:
Fishway Act requires that any obstruction built across
fish-bearing waters will provide for fish passage
Jurisdiction
Applies to all fish bearing streams (resident and
anadromous) and all fish species.
Requires long-term commitment to operation &
maintenance
Applies to fish passage only
Activities not covered by .841
Projects that don't have the potential to block passage
Docks, streambank protection, motorized stream crossings,
etc.
11:31:57 AM
CHAIR STUTES asked if there are any exceptions to the fish
passage requirements under the Fishway Act.
MR. BENKERT answered no; that fish passage is always required.
He explained that if a potential blockage of fish passage
occurs, the division will work with the applicant to ensure that
the design will not block fish passage. For example, the
Habitat Division works to ensure that culverts are properly
installed, without any barriers to fish, such as a drop off.
Typically, docks and stream bank protections do not hamper fish
passage, he said.
CHAIR STUTES related her understanding that there are not any
exemptions to the fish passage under current law.
MR. BENKERT was unsure of what was meant by exemption.
CHAIR STUTES explained that occasionally during construction
that would not require an exemption for fish passage.
MR. BENKERT responded that the division occasionally may decide
that short-term impacts are far outweighed by the long-term goal
of a project, so some measures are allowed on a temporary basis.
For example, if culvert construction was constrained by
topography, the permittee may be authorized to pump water over
the roadway until the culvert that allows fish passage is
installed. He reiterated, in that instance, the short-term
impact is far outweighed by the long-term benefit of replacing
the culvert.
11:34:36 AM
REPRESENTATIVE CHENAULT asked whether projects affected by the
[Fishway] act are limited to freshwater.
MR. BENKERT answered yes; the division's jurisdiction under
AS 16.05.841 and AS 16.05.871 typically ends at the ordinary
low-water line of saltwater.
REPRESENTATIVE CHENAULT commented that he was curious since
there are significant numbers of docks in Alaska.
11:35:40 AM
MR. BENKERT referred to slide 8, titled, "Anadromous Fish Act"
which read as follows [original punctuation provided]:
AS 16.05.871
ADF&G must specify those waters that are important for
the spawning, rearing, or migration of anadromous fish
(AWC)
(b-c) notification and plans required before
conducting work in a specified waterbody (permit
application)
(d) ADF&G will approve or deny the proposed work
MR. BENKERT explained that the process in AS 16.05.871(a) is
accomplished through the anadromous waters catalog (AWC). The
division accepts nominations in September, reviews them to
ensure that they are submitted by someone with the professional
qualifications to identify the species of fish. Next, the AWC
regulations are promulgated by the Lieutenant Governor,
typically in June, he said.
11:36:24 AM
CHAIR STUTES asked what percentage of the AWC has been
completed.
MR. BENKERT answered that the AWC is about 50 percent complete.
He reported that the recent international hydrologic data set
has identified additional "flowing waters" beyond what the
department has used. That data is currently being integrated
into the AWC, he said. He reiterated that the AWC is
approximately 50 percent completed, which he said is the figure
posted on the Habitat Division's website.
11:37:19 AM
CHAIR STUTES asked how long it takes the Habitat Division to
incorporate a water body into the AWC once the division
determines a water body is anadromous water body.
MR. BENKERT explained the process, such that field information
is collected during the summer season, nominations are submitted
by the deadline, typically, the end of September, and the new
catalog is compiled by June. He detailed that the process
includes a GIS [Geographic Information System] project to adjust
the lines, the life-stages, and species in the water bodies. He
acknowledged that a seven to nine-month gap occurs before
inclusion in the AWC; however, sometimes new elements can be
inserted into the permit, but the effective date for those
inclusions is the date the AWC becomes law.
11:39:05 AM
REPRESENTATIVE TARR asked for further clarification on the new
data set mentioned and whether the reason for the new streams is
due to new technology that allows for more information to be
gathered or if data is being collected by drones.
MR. BENKERT agreed that the technology being used is rapidly
advancing, for example, the Matanuska-Susitna Borough (MSB)
contracted to have a LIDAR [Light Detection and Ranging] survey
of the entire borough performed. He stated that LIDAR is a
remote sensing method used to examine the surface of the earth.
This technology provides additional details in the landscape by
removing all the foliage so even small creeks are visible, he
said. This technology provides much higher resolution than the
topographical maps, he said.
11:40:19 AM
MR. BENKERT reviewed slide 9, titled, "Anadromous Fish Act"
which read as follows [original punctuation provided]:
AS 16.05.871
(a) ADF&G must specify those waters that are
important for the spawning, rearing, or migration
of anadromous fish (AWC)
(b-c) notification and plans required before
conducting work in a specified waterbody (permit
application)
(d) ADF&G will approve or deny the proposed work
MR. BENKERT described the process for a construction project
that involves a waterbody that is included in the AWC. In that
instance, the party must notify the division, apply for the
permit and submit specifications for the project. The division
subsequently reviews the project and works with the applicant to
determine if the project is permittable, as is, or if any
avoidance measures need to be taken to minimize or eliminate any
impact to anadromous fish habitat.
11:41:09 AM
MR. BENKERT reviewed slide 10, titled Anadromous Fish Act
(.871)" which read as follows [original punctuation provided]:
Jurisdiction
Applies to any activity
Applies to any life stage
Application of .871
Activity occurring below OHW with some exceptions
Waterbody must be in AWC
Freshwater only down to the mean low OHW in the marine
environment
MR. BENKERT explained that this is a "stronger statute" for the
division and typically the division will use this [AS 16.05.871]
whenever it works with anadromous waterbodies.
11:42:00 AM
MR. BENKERT reviewed slide 10, titled "Fish Habitat Permits,"
which read as follows:
Applicant submits plans to ADF&G
Habitat Biologist reviews and consults area staff
May be permitted as proposed or modified during review
process
Timeline for review-6 weeks
Emergency exemptions
AS 16.05.891
Verbal/email approval
Follow up with formal permit
Typical Stipulations
Timing Windows
Diversion/Bypass Pumping
Sediment Control
Reveg/Stabilization
Fish Passage
Notification
MR. BENKERT briefly reviewed the fish habitat permit process,
since he previously mentioned it. The division consults with
area staff, such as the ADF&G's Division of Sport Fish or
ADF&G's Division of Subsistence to garner information and assess
any concerns. He reported that the timeline for review ranges
from two to six weeks, that it is difficult to determine the
actual review period since the range is highly variable for
individual projects. For example, some permits are over-the-
counter permits issued for routine activities with little chance
of impacting habitat, such as stream-crossing permits for ATVs.
Those permits typically can be issued immediately, he said.
MR. BENKERT said that large projects may take years to just
submit the baseline data collection. The division must consider
all aspects of the project and any potential impact on
anadromous waterbodies.
MR. BENKERT described some mid-range permitted projects, noting
a typical DOT&PF bridge project permit may take two to six weeks
to complete. These projects typically consist of multiple
engineering drawings and the projects can usually be
accomplished using a variety of options to coordinate and craft
a project that minimizes fish habitat.
11:45:57 AM
CHAIR STUTES remarked that she finds the timeline of two to six
weeks interesting because in her experience the permitting
process is more like four days, based on conversations she has
had with permitting agencies.
MR. BENKERT acknowledged that it is difficult to identify an
average permitting process time, because it depends on the size
of the project and any impact to the fish habitat.
CHAIR STUTES mentioned she did not see anything listed in the
permit process for public input.
MR. BENKERT responded that the division is not required to
public notice Title 16 activities.
CHAIR STUTES remarked that she found that "odd" but that could
be a future discussion.
11:47:12 AM
REPRESENTATIVE TARR asked for further clarification on how ATV
operators are informed so they know that they need a permit to
cross streams.
MR. BENKERT answered that it basically relates to providing
information to the public; however, some user groups in the Mat-
Su are self-educating themselves and spread the word to others.
He advised members that he often reaches out to community
councils to inform them. Further, when the division finds a
frequent activity occurring that has minimal impact on the
waterbodies, it will offer a general permit to authorize that
activity. These permits are online and can be downloaded, but
must be on the person, he said.
11:48:33 AM
CHAIR STUTES directed attention back to the lack of exemptions
to the Fishway Act [slide 7]. She referred to AS 16.05.851,
which read, "If a fishway over a dam or obstruction is
considered impracticable by the commissioner because of cost,
the owner ..." The statute goes on to lay out alternatives;
however, it seems that this provision sets out an exemption, she
said.
MR. BENKERT answered that the division considers that to be
mitigation and not an exemption. He related a scenario in which
a hydroelectric project was building a dam, but it was not
possible to allow for fish passage over the dam. In that case,
AS 16.05.851 allows project proponents to develop a fish
hatchery to offset the blockage or to pay a lump sum to the
state to help manage or maintain a state fish hatchery.
CHAIR STUTES thanked him for the clarification.
11:50:07 AM
MR. BENKERT continued his discussion on slide 10, titled "Fish
Habitat Permits" stating that the division can authorize an
emergency exemption, but the parties must follow up with a
formal permitting process.
11:51:26 AM
CHAIR STUTES asked for further clarification on mitigation, such
as when the division determines mitigation is required. She
asked whether there is flexibility in the law as to the
mitigation site location or if the mitigation must occur on the
specific site where the situation arose.
MR. BENKERT answered that at times there are no on-site options
for mitigation; however, onsite is preferable. The federal
agencies have been using mitigation banking to offset
unavoidable impacts in some permitting situations, he said. He
reiterated that the division tries to have the mitigation occur
onsite but if it is not available, the division tries to have
the mitigation project occur nearby.
11:52:36 AM
MR. BENKERT, in response to Representative Tarr, said he was not
well-versed with any mitigation projects that have occurred in
the Eagle River area in the past few years.
11:53:16 AM
MR. BENKERT continued his discussion on slide 10, titled "Fish
Habitat Permits" relating that typical stipulations associated
with fish habitat permits include timing windows, in which the
activities are contained in time windows when critical life-
stages of anadromous fish occur, typically confining most of the
work between May 15 and July 15. He mentioned the division has
a storm water prevention plan to assure that unintended sediment
is put into the system. He described revegetation and
stabilization, for example, when DOT&PF disturbs the banks
during culvert installation, it must incorporate bioengineering
revegetation upstream and downstream to reestablish the riparian
zone. He noted he previously discussed fish passage and
notification, adding that the division requires projects to
provide notice to allow the division staff to be onsite to
ensure the activity is conducted appropriately.
11:55:28 AM
REPRESENTATIVE TARR asked for further clarification on the
revegetation in Anchorage and whether he could describe the
interface between the state laws and local ordinances in terms
of riparian zone protections.
MR. BENKERT answered that the public is often confused about
jurisdictional authority and people sometimes mistakenly
believes that local ordinances are issued by the Habitat
Division. Thus, the division is sometimes inundated by calls
from the public. Although the division is aware of local
ordinances, it does not incorporate any municipal or borough
ordinances into the ADF&G's permitting activities, he said. The
ADF&G's statutes stand alone, although the division does try to
inform applicants to check with the local authorities, such as
municipalities or boroughs.
11:57:17 AM
CHAIR STUTES asked for further clarification on the division's
interaction with the federal agencies.
MR. BENKERT offered to cover that in a further slide.
11:57:39 AM
MR. BENKERT reviewed slide 11, titled, "ADF&G's Role in Large
Project Evaluation" which read as follows [original punctuation
provided]:
Large projects are often coordinated through the ADNR
Office of Project Management and Permitting (OPMP)
Large projects have the potential to result in long-
term or permanent change to fish and wildlife habitat.
ADF&G staff work with the applicant and other agencies
to ensure the project is designed to avoid or minimize
impacts to resources of the state.
This requires evaluation of all information available
and identification of additional information needs to
conduct a thorough analysis of the proposed project
and project alternatives.
There are five phases to large projects:
Pre-project scoping and fish and wildlife
studies;
Permitting;
Project construction and monitoring;
Project operation and monitoring; and
Post-project site reclamation or restoration.
11:57:53 AM
MR. BENKERT highlighted several types of projects that require
coordination between agencies, including that placer mining
operations must obtain water permits through DNR's Water Section
since those operations typically require significant water use.
The DNR will issue a water use permit concurrent with the
division's fish habitat permit. In addition, DEC authorizes
mixing zones under the Clean Water Act, but the ADF&G reviews
the mixing zones and to ascertain if anadromous fish are present
or spawning and determine whether the activity is permitted.
12:00:15 PM
MR. BENKERT referred to federal agencies, noting that the ADF&G
comments on some federal activities, such as marine waters. He
said large project evaluations which are coordinated by the
DNR's Office of Project Management and Permitting (OPMP). In
fact, most large project managers prefer to use the OPMP since
it provides them with a single point of contact.
MR. BENKERT described the large project review, which involves
review of environmental baseline data and data collection
programs and forming technical working groups [comprised of
state and federal agencies with subject expertise to evaluate
pre-application] to review information and data required or
requested from state resource agencies. The working group
approves the baseline collection and works with the applicant to
ensure protections are in place. He acknowledged this can be a
lengthy process, recalling that the Susitna Hydroelectric
Project had 27 technical working groups to address specific
issues.
12:02:23 PM
MR. BENKERT said that federal agencies have permits in play as
well. He stressed it can take years to get to the point at
which the proponent can apply for fish habitat permits, since
the project may cross multiple creeks and many issues can arise.
The process is complex for data collection that can help inform
the permitting decisions.
12:03:53 PM
CHAIR STUTES asked whether ADF&G can inform the federal agencies
that "No, this isn't going to work here, we're sorry."
MR. BENKERT said he did not think that the division has arrived
at that point yet.
12:04:11 PM
MR. BENKERT mentioned that marine waters often require federal
permits including obtaining a permit from the U.S. Army Corps of
Engineers to build a dock. The ADF&G can comment on federal
actions to the Fish and Wildlife Coordination Act, which is not
often used; however, the division has used this process to
provide input into the federal process to inform the federal
decisions, as well, since the state has significant local
knowledge that the federal agency may not have.
12:05:01 PM
CHAIR STUTES related her understanding that the ADF&G has an
opportunity to comment in the federal process but has no control
over the process.
MR. BENKERT agreed that the ADF&G does have input but not
control. He pointed out that the department also participates
with federal agencies on its working groups, for instance, that
a technical advisory committee was established through the U.S.
Corps of Engineers to revise placer mining permits. The ADF&G,
DNR, and DEC helped develop the permits, which means the
department could at least discuss aspects of the permit. The
department also participated in an advisory committee with the
Bureau of Land Management (BLM) to ascertain impacts on
remediation of mining sites.
12:06:25 PM
CHAIR STUTES said she did not think the committee could sum this
up today.
MR. BENKERT said he had one more slide to cover.
12:06:40 PM
MR. BENKERT reviewed slide 12, titled, "ADF&G Large Project
Permitting" which read as follows [original punctuation
provided]:
Activities associated with large project development
that would typically require permits from the ADF&G
include:
Fish Habitat Permits from the Division of Habitat
addressing:
Construction of fish barriers (i.e., dams);
Flow reduction;
Stream crossings associated with road and pipeline
construction (bridges, culverts, buried pipelines,
etc.);
Water withdrawal and intake structures;
Stream re-alignment; and
Instream mitigation projects.
MR. BENKERT said the division works with the DNR and can require
minimum instream flow, so fish will not be impacted by the
project. He indicated he has pretty much covered the rest of
the large project permitting.
12:07:30 PM
REPRESENTATIVE TARR, in terms of working with the DNR on flow
reduction, asked whether the outcome is a water reservation on
behalf of the ADF&G.
MR. BENKERT answered not necessarily. He said that a water
reservation system is different. He described flow reduction,
such that the permit will include that the project must maintain
a minimum flow. It may be due to temporary construction use or
in instances in which small hydroelectric projects are diverting
flow. This is not a reservation but a requirement for the
project proponent to maintain certain flows through the project
site to maintain fish habitat, he said. He added that an
instream flow reservation goes through a formal process with the
DNR, but it can take years to adopt instream flow reservations.
12:08:36 PM
REPRESENTATIVE TARR related her understanding that once the
instream flow reservation has been granted that it is more
permanent than the flow reduction permit.
MR. BENKERT responded sometimes it is but sometimes it is not.
For example, with respect to a hydroelectric power project, the
project will obtain a flow reservation. In that instance the
project will be allocated a certain amount of water to run
through its turbines to produce power. However, the ADF&G could
argue that too much water is being taken. Although the division
does not authorize a water reservation, it might influence the
amount of water under the reservation that the DNR's Water
Section grants to the applicant for the project, he said.
12:09:32 PM
CHAIR STUTES thanked Mr. Benkert for his presentation.
12:10:28 PM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 12:10
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| House Fisheries Presentation-Fish Habitat Permitting 2.6.18.pdf |
HFSH 2/6/2018 11:00:00 AM |
HB 199 |
| Opposing Docuement-Alaska Forestry Board.pdf |
HFSH 2/6/2018 11:00:00 AM |
|
| Opposing Document-UCM.pdf |
HFSH 2/6/2018 11:00:00 AM |
HB 199 |
| Opposing Document-Alaska Council of Producers.pdf |
HFSH 2/6/2018 11:00:00 AM |
HB 199 |
| Supporting Document-Curyung Tribal Council.pdf |
HFSH 2/6/2018 11:00:00 AM |
|
| Supporting Document-Juneau Fishermen.pdf |
HFSH 2/6/2018 11:00:00 AM |
HB 199 |
| Supporting Document-Statewide.pdf |
HFSH 2/6/2018 11:00:00 AM |
HB 199 |