Legislature(2007 - 2008)BARNES 124
03/12/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB137 | |
| HB149 | |
| HB165 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 137 | TELECONFERENCED | |
| *+ | HB 149 | TELECONFERENCED | |
| *+ | HB 165 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 12, 2007
1:03 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Co-Chair
Representative Craig Johnson, Co-Chair
Representative Bob Roses
Representative Paul Seaton
Representative Peggy Wilson
Representative Bryce Edgmon
Representative David Guttenberg
Representative Scott Kawasaki
MEMBERS ABSENT
Representative Vic Kohring
COMMITTEE CALENDAR
HOUSE BILL NO. 137
"An Act amending the requirements for the identification card
needed for sport fishing, hunting, and trapping without a
license by residents who are 60 years of age or more."
- MOVED CSHB 137(RES) OUT OF COMMITTEE
HOUSE BILL NO. 149
"An Act relating to the authority of the Department of
Environmental Conservation to require certain monitoring,
sampling, and reporting and to require permits for certain
discharges of pollutants; relating to criminal penalties for
violations of the permit program; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 165
"An Act relating to providing field accommodations for big game
hunters."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 137
SHORT TITLE: SENIOR FISHING/HUNTING/TRAPPING LICENSES
SPONSOR(s): FISHERIES
02/14/07 (H) READ THE FIRST TIME - REFERRALS
02/14/07 (H) FSH, RES, FIN
02/19/07 (H) FSH AT 8:30 AM CAPITOL 124
02/19/07 (H) -- Meeting Canceled --
02/23/07 (H) FSH AT 8:30 AM CAPITOL 124
02/23/07 (H) Moved CSHB 137(FSH) Out of Committee
02/23/07 (H) MINUTE(FSH)
02/26/07 (H) FSH RPT CS(FSH) 2DP 1DNP 2NR
02/26/07 (H) DP: WILSON, SEATON
02/26/07 (H) DNP: JOHANSEN
02/26/07 (H) NR: LEDOUX, HOLMES
02/26/07 (H) FSH AT 8:30 AM BARNES 124
02/26/07 (H) <Bill Hearing Canceled>
03/12/07 (H) RES AT 1:00 PM BARNES 124
BILL: HB 149
SHORT TITLE: POLLUTANT DISCHARGE PERMITS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/21/07 (H) READ THE FIRST TIME - REFERRALS
02/21/07 (H) RES, JUD
03/12/07 (H) RES AT 1:00 PM BARNES 124
BILL: HB 165
SHORT TITLE: BIG GAME GUIDES AND TRANSPORTERS
SPONSOR(s): REPRESENTATIVE(s) LEDOUX
02/28/07 (H) READ THE FIRST TIME - REFERRALS
02/28/07 (H) RES
03/12/07 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
KATIE SHOWS, Staff
to Representative Paul Seaton
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 137.
KRISTIN WRIGHT, Accountant IV
Finance/Licensing Supervisor
Division of Administrative Services
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 137.
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Presented background information on HB 149
and answered questions.
CAMERON LEONARD, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Fairbanks)
Department of Law (DOL)
Fairbanks, Alaska
POSITION STATEMENT: Presented section-by-section information on
HB 149 and answered questions.
STEVE BORELL, Executive Director
Alaska Miners Association (AMA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 149.
BOB SHAVELSON, Executive Director
Cook Inletkeeper
Homer, Alaska
POSITION STATEMENT: Presented testimony regarding HB 149.
SUZANNE HANCOCK, Staff
to Representative Gabrielle LeDoux
Juneau, Alaska
POSITION STATEMENT: Presented sponsor statement for HB 165.
RICK METZGER
Akhiok, Alaska
POSITION STATEMENT: Presented information as the private cabin
owner who alerted Representative LeDoux to the issue addressed
by HB 165.
TOM TEMPLE
Fairbanks, Alaska
POSITION STATEMENT: As a private cabin owner, supported HB 165.
ACTION NARRATIVE
CO-CHAIR CRAIG JOHNSON called the House Resources Standing
Committee meeting to order at 1:03:57 PM. Representatives
Johnson, Gatto, Guttenberg, Roses, Seaton, and Wilson were
present at the call to order. Representatives Kawasaki and
Edgmon arrived as the meeting was in progress.
HB 137-SENIOR FISHING/HUNTING/TRAPPING LICENSES
1:04:20 PM
CO-CHAIR JOHNSON announced that the first order of business
would be HOUSE BILL NO. 137, "An Act amending the requirements
for the identification card needed for sport fishing, hunting,
and trapping without a license by residents who are 60 years of
age or more."
1:06:35 PM
REPRESENTATIVE PAUL SEATON spoke as chair of the House Special
Committee on Fisheries, sponsor of HB 137. He explained that a
problem was identified in Alaska state statutes whereby a
permanent identification card (PID) is given to any person over
60 who applies for one. This PID serves as a lifetime free-of-
charge sport fishing, hunting, and trapping license. About
46,000 PIDs have been issued to date. However, the problem is
that people move out of the state and yet retain their PID. The
Alaska Department of Fish & Game (ADF&G) has noticed problems
with people not supporting Alaska's fisheries by buying a
fishing license. This bill converts a PID into a free-of-charge
temporary identification card (TID) that is good for a three-
year period. The TID is tied to the Permanent Fund Dividend
(PFD) for determining eligibility. Each year the Permanent Fund
Dividend Division will provide ADF&G with an electronic list of
every person who received a PFD the previous year. By checking
the PFD list, ADF&G can determine an applicant's eligibility for
a TID. Alaska residents who do not participate in the PFD
program for philosophical reasons can still receive a TID by
showing proof to ADF&G that they were in the state for 185 days
of the previous year. The TID rewards the senior citizens of
Alaska who remain residents of the state.
1:10:02 PM
CO-CHAIR GATTO stated that his understanding of the bill is that
everyone who currently has a PID will get to keep it, but that
new applicants can keep [their TIDs] only if they stay [Alaska
residents].
REPRESENTATIVE SEATON stated that this is correct. He asked
that the committee adopt the committee substitute (CS) because
it incorporates changes requested by ADF&G for clarification
purposes.
1:10:52 PM
REPRESENTATIVE WILSON moved to adopt as the working document
committee substitute (CS) for HB 137, Version 25-LS0118\O, Kane,
3/7/07.
1:11:10 PM
CO-CHAIR JOHNSON objected for discussion purposes and asked for
confirmation on whether only new applicants will be subject to
the [TID] system.
REPRESENTATIVE SEATON advised that this is correct. He directed
attention to a 2/27/07 opinion from Brian Kane of Legislative
Legal Services that confirms that this change is legal.
[The committee treated Co-Chair Johnson's objection as being
withdrawn. There being no further objection, Version O was
treated as before the committee.]
1:12:24 PM
CO-CHAIR GATTO asked whether non-resident seniors returning to
Alaska to fish are taking a disproportionate amount of fish so
as to make the bill's provisions worth the effort.
REPRESENTATIVE SEATON responded that the program has developed a
bad name and it should not be this way. He explained that there
is no requirement to prove anything, an applicant does not even
have to submit a driver's license. Cardholders are required to
maintain residency, yet there is no way for an officer in the
field to verify the person's residency. He expressed his belief
that many people who are no longer residents will still return
to Alaska to fish even if they must pay for nonresident fishing
licenses. Additionally, even if a person leaves the state, he
or she will still have a 3-year license. He stressed that the
current program is unenforceable and that HB 137 will correct
this problem. He also pointed out that the state relies on
fishing licenses for funding the monitoring and management of
fisheries by the Division of Sport Fish.
1:15:30 PM
REPRESENTATIVE WILSON inquired about the results of the 3/7/07
arraignment of the out-of-state couple who was cited in Hoonah
for unlawful sport fishing.
KATIE SHOWS, Staff to Representative Paul Seaton, said that she
thinks the couple was reprimanded for this one particular case.
REPRESENTATIVE WILSON asked whether it was correct that the
couple had been fishing unlawfully since 2000 and was the couple
fined.
MS. SHOWS responded that she will ask ADF&G.
1:16:42 PM
CO-CHAIR GATTO commented that this is an attack on seniors and
questioned whether it is an issue that needs fixing because it
generates so little revenue.
MS. SHOWS referred to a fact sheet in the committee packet with
ADF&G's "best guess" estimate that the revenue lost due to this
problem is $137,827. She agreed that this is not a huge sum of
money, but that it is something.
CO-CHAIR GATTO inquired whether this assumes that everyone who
would qualify would still want to fish even though they would
now have to pay.
MS. SHOWS deferred to Kristin Wright of ADF&G.
1:18:58 PM
REPRESENTATIVE ROSES expressed his opinion that this is an
equitability issue, not an economic issue, because the benefit
of residency for senior citizens is diluted by allowing former
residents to [fish for free].
1:21:03 PM
REPRESENTATIVE GUTTENBERG asked whether thought was given to
other ways of determining eligibility rather than receipt of a
PFD.
REPRESENTATIVE SEATON pointed out that using the PFD database to
verify eligibility is easy and simple, plus the database is
updated every year. If someone did not get a PFD for
philosophical reasons there are still ways for them to get a
TID. He explained that using a driver's license for eligibility
is difficult because some states mandate that a person get a
driver's license for that state if he or she lives there for a
certain length of time during the year, even if the person
maintains residency in another state.
1:24:13 PM
REPRESENTATIVE GUTTENBERG stated that it is his understanding
that the PFD database is no longer available to the public. He
asked how stores selling the licenses access the database will.
KRISTIN WRIGHT, Accountant IV, Finance/Licensing Supervisor,
Division of Administrative Services, Alaska Department of Fish &
Game (ADF&G), explained that the license database will be housed
at ADF&G and will not be public. She said that PIDs are not
currently available through stores. Applicants must come to an
ADF&G office or field office and the PFD database will then be
accessed by ADF&G through the Internet. If the applicant's name
is not on the PFD database, he or she will be required to fill
out a form. In response to a further question, Ms. Wright noted
that there are many field offices located throughout the state -
Bethel, Tok, Dillingham, Nome, Kotzebue, and Barrow, to name a
few. She said that more than 75 percent of current cardholders
applied for their PIDs by mail.
1:26:03 PM
REPRESENTATIVE EDGMON said he agreed that this is an
equitability issue and that it is good public policy.
Nonetheless, he said that he is concerned this will be
problematic for elderly Alaska natives living in the Bush who
will now have to get a new license every three years.
MS. WRIGHT advised that she put in a fiscal note to enable ADF&G
to notify cardholders well in advance of when their three years
is up. A form will be included in the notice for cardholders to
fill out and return. In response to a further question, she
noted that it is currently too difficult to conduct the
application and renewal process over the Internet, but that it
might become available in the future. In response to additional
questions, Ms. Wright pointed out that a first-time applicant
can choose to apply either by mail or in person at a field
office or at her [Juneau] office. She noted that renewals could
also be done either by mail or in person, and that ADF&G would
again verify whether the person had received a PFD or had
completed a form with all of the boxes checked off.
1:29:50 PM
CO-CHAIR GATTO asked whether an Alaska "snowbird" with an
Arizona driver's license would be precluded from getting an
identification card under either the current or new system.
MS. WRIGHT said that, currently, identification does not have to
be presented to receive a PID - an applicant only fills out a
form that also includes information about his or her driver's
license. While an Arizona license would be a red flag, ADF&G
would still issue the card and then send the applicant's name to
the Alaska Bureau of Wildlife Enforcement for further checking
since ADF&G is not an enforcement agency. This procedure would
also apply to the TID program proposed by HB 137. The new
system would be more foolproof than the current program because
a person must qualify for the PFD and cannot just walk in off
the street to avoid paying the [out-of-state] license fee. In
response to a further question, Ms. Wright clarified that under
the new system, ADF&G would not issue a TID without first
looking for the applicant's name in the PFD database. The
current system does not require any proof of residence except
for the applicant's signature on a line.
1:33:16 PM
REPRESENTATIVE GUTTENBERG inquired as to how Ms. Wright built
her assumptions regarding who is and who is not eligible, and
how many bad licenses were issued each year.
MS. WRIGHT stated that she did not have an assumption regarding
how many bad licenses have been issued because ADF&G does not
believe the abuse is rampant, only that it is a problem. She
commented that ADF&G would like to use this license file for
sport fishing surveys and would therefore like this file to be
accurate for statistical reasons. She said that she included in
her analysis the number of licenses issued annually and then
assumed that 50 percent of those people would continue to get a
fishing license and 25 percent would get a hunting license. She
used this assumption because that is what the rest of the
population does. In response to a further question, she
confirmed that [the percentages] are only an assumption because
there is no way to know for sure.
1:35:17 PM
REPRESENTATIVE EDGMON asked what Ms. Wright thinks about
implementing a five year period instead of a three year period.
MS. WRIGHT advised that five years would give a bit more time
for people to continue using the TID and that it would be less
of an administrative burden. There would be a few more abuses
by going with five years, but not a lot.
REPRESENTATIVE EDGMON stated his opinion that this is a
sensitive issue for senior citizens who already have this card
in place. He requested that a five year time period be
considered.
REPRESENTATIVE SEATON explained that any person already
possessing a PID is grandfathered into the program and will
never need to re-apply. It is only those seniors receiving
cards under the new program who will be affected by the three-
year time period.
1:38:08 PM
CO-CHAIR JOHNSON closed public testimony after ascertaining that
no one else wished to speak.
1:38:35 PM
REPRESENTATIVE WILSON commented that she did not think any
senior citizen can complain because for the price of a stamp he
or she can fish for free for three years.
1:38:58 PM
CO-CHAIR GATTO asked whether the Association for the Advancement
of Retired Persons (AARP) has commented on the bill.
MS. SHOWS reported that Representative Seaton did not contact
AARP, nor has he heard from them. She said that only two public
comments have been received and that they are in the committee
packet - one is the e-mail cited by Representative Wilson
regarding the Hoonah couple and the other is an e-mail in
opposition to the bill from a senior in District 35.
1:41:04 PM
CO-CHAIR GATTO pointed out that the fiscal note for ADF&G
constitutes only a couple of thousand dollars in the out years.
1:41:21 PM
REPRESENTATIVE WILSON moved to report the CS for HB 137, Version
25-LS0118\O, out of committee with individual recommendations
and the accompanying fiscal notes. There being no objection,
CSHB 137(RES) was reported from the House Resources Standing
Committee.
HB 149-POLLUTANT DISCHARGE PERMITS
1:41:54 PM
CO-CHAIR JOHNSON announced that the next order of business would
be HOUSE BILL NO. 149, "An Act relating to the authority of the
Department of Environmental Conservation to require certain
monitoring, sampling, and reporting and to require permits for
certain discharges of pollutants; relating to criminal penalties
for violations of the permit program; and providing for an
effective date."
1:42:18 PM
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), presented background for HB
149. She explained that the federal Clean Water Act (CWA)
requires that all wastewater discharges to surface waters be
permitted under the National Pollutant Discharge Elimination
System (NPDES) Permitting Program. The CWA intends for states
to implement or to have primacy for this program, with the
Environmental Protection Agency (EPA) serving in an oversight
role over the states that implement the program. There are
presently 45 states that have primacy for the NPDES program. In
Alaska, the EPA is currently the NPDES permitting authority and
DEC plays a secondary role whereby DEC certifies that all of
EPA's permits will comply with Alaska's water quality standards.
The DEC also issues permits for those smaller discharges that
EPA does not "get around" to issuing permits for.
MS. KENT informed the committee that in 2005 the Alaska State
Legislature, through Senate Bill 110, directed DEC to take all
actions necessary to assume authority for the NPDES discharge
permitting authority, including responsibility for issuing the
permits and for ensuring compliance with the permits. As part
of DEC's work with EPA to transfer primacy to the state, EPA has
identified several areas where changes to the state statutes are
required in order for DEC to have the full complement of
statutory authorities that are needed for DEC to assume primacy.
Those state authorities are adjusted by HB 149 to match the
federal authorities. Each change addresses a specific concern
that is raised by EPA as something that must be fixed.
1:44:13 PM
CAMERON LEONARD, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Fairbanks), Department of Law
(DOL), pointed out that all of the sections of HB 149 are
designed to respond to comments that the state has received from
EPA and they are put together into a statutory package that EPA
can approve. Therefore, each section of the bill has its own
background of negotiation between the state and EPA.
MR. LEONARD explained that Sections 1 and 5 are linked and that
both address where monitoring and reporting requirements can be
placed - either within a discharge permit or outside of a
discharge permit. Conditions of permits are enforceable by
third party lawsuits, and some members of the work group were
concerned that certain monitoring and reporting requirements
that were not tied to compliance had been placed in permits by
EPA, thus exposing the permittees to third party lawsuits.
Therefore, DOL collaborated with the work group to determine a
way to require monitoring and reporting outside of permits. The
language in Section 1 clarifies that DEC has this power.
1:46:18 PM
MR. LEONARD noted that Section 2 deals only with terminology.
He explained that the CWA, the federal law under which the state
is trying to assume the permitting program, uses different
terminology than that used in Alaska statutes. For example, the
federal term for the placement of pollutants into water is
"discharge," whereas Alaska statute uses the term "disposal."
Adding the phrase "or discharge" and cleaning up the other
language makes it clear that DEC has the same range of authority
over activities that EPA has under the federal law.
1:47:11 PM
REPRESENTATIVE SEATON asked for an explanation of any possible
consequences that could result from the removal of the exemption
for domestic sewage in Section 2.
MR. LEONARD related that this issue is being removed from
Section 2 because it is covered under Section 4. He explained
that under current law this issue is dealt with in two different
places and is stated differently, and that this results in
confusion.
1:48:18 PM
MR. LEONARD described the amendments embodied in Section 3(b) of
the bill which lists the different kinds of authorizations that
DEC can use to allow a discharge. One of EPA's comments, he
said, was that it was unclear to EPA that it was DEC's decision
as to which one to require for a given circumstance. This
change clarifies that it is indeed up to DEC which requirement
applies to any given circumstance.
1:49:08 PM
MR. LEONARD noted that Section 4(e) addresses seven different
exemptions, or exclusions, from the current requirements for
getting a permit from DEC, and the exemption that Representative
Seaton inquired about is covered by Subsection (e)(1). This
change tracks federal law which contains an exclusion from the
requirement of getting an NPDES permit for domestic sewage
discharged to a publicly owned treatment works (POTW). He
explained that the work group tried writing the state's
exemption more broadly to deal with any treatment work whether
publicly or privately owned. However, EPA required that the
state's program be just as inclusive as EPA's, and EPA only
excludes discharges of domestic sewage to POTWs. Thus, Section
4(e)(1) makes state law the same as federal law.
MR. LEONARD pointed out that, currently, any discharge of
domestic sewage into surface waters that is not via a POTW, is
subject to the requirement of getting a federal discharge
permit. There is no exemption from the NPDES permit requirement
for discharges made into surface waters - whether or not a
person knows of this requirement and whether or not a person has
a permit. Therefore, state law will be the same as federal law
on this point. What this means in practice is probably a
question that should be asked of DEC. However, he said that he
thought there are tools available under the program, such as
general permits, where DEC will be able to authorize a whole
category of discharges without having to do individual permits.
1:51:56 PM
MR. LEONARD proceeded to Section 4(e)(4) relating to incidental
discharges, such as discharge of water from trenching, drilling,
or other types of construction activities. He noted that
current state law uses the term "surface water of the state" and
federal law uses "waters of the United States," a term that may
not mean exactly the same thing as surface water. Section
4(e)(4) aligns the state's terminology with EPA's.
1:53:04 PM
MR. LEONARD next discussed Section 4(e)(7) regarding the
discharge of munitions. He explained that the exemption for the
discharge of munitions remains in place but that the exemption
does not apply if it results in a discharge into waters of the
United States. Munitions are specifically covered in the
definition of pollutants under the CWA, therefore discharge of
munitions to waters of the United States requires an NPDES
permit. In response to a question, Mr. Leonard stated that
under current law, a shooting range that projects over water is
required to get a discharge permit from EPA. Once the new
program is approved, permit applications will instead be made to
DEC.
1:54:45 PM
MR. LEONARD moved to Section 5(h) and reminded the committee
that this section is linked with Section 1. He said that this
section is related to protecting permittees from third party
suits for monitoring and reporting requirements that are not
tied to compliance, either with permit limits or with water
quality standards. If HB 149 passes with Sections 1 and 5
remaining as they are written, DEC will be given the choice to
put those sorts of requirements either in permits or outside of
permits. He said that this will satisfy EPA because this is the
authority that EPA has now.
1:56:02 PM
REPRESENTATIVE WILSON asked whether she is correct in
understanding that currently at the federal level there is a
choice of putting a requirement either in the permit or outside
the permit, and that this bill will give the state that same
choice.
MR. LEONARD confirmed that this is exactly what he is saying.
1:56:31 PM
REPRESENTATIVE GUTTENBERG asked for an explanation of Section
5(h) in regard to changing the word "mandated" to "authorized."
MR. LEONARD noted that this refers to Section 308 of the CWA
which gives EPA broad discretion for the kind of monitoring and
reporting that a permittee is required to do. Changing the word
"mandated" to "authorized" gives DEC this same broad discretion.
1:58:16 PM
MR. LEONARD then addressed Sections 6 and 7. He explained that
terminology is again the issue, and that these sections clarify
that the state's use of the term "waste material" includes
"pollutants" as defined by the U.S. Congress in the CWA.
1:59:11 PM
REPRESENTATIVE SEATON asked why not use the same terminology
that is found in federal law if the point is for the state to be
able to take over enforcement of the CWA.
MR. LEONARD explained that AS 46.03.100 deals with subjects that
go beyond the Alaska Pollutant Discharge Elimination System
(APDES) program. For example, it deals with discharges of
materials to land, such as the permitting of land fills. While
developing the APDES program, the state faced the choice of how
much to do by changes to the statute and how much to do by
regulations. The state tried to create the regulatory program
to satisfy EPA within the broader umbrella of authority
represented by AS 46.03.100 even though it led to these issues
of terminology. Numerous programs are run by DEC under the
authority of AS 46.03.100, and changing all the language in that
statute would cause problems in other areas.
2:00:41 PM
REPRESENTATIVE SEATON asked whether the term "pollutants" will
be used by the state when dealing with NPDES permits, or will
the state now substitute the term "waste material" because it is
more expansive than "pollutants."
MR. LEONARD said that the state will use the term "pollutants"
because that is the definition that has already been
incorporated into the regulations promulgated to implement the
program. This proposed change in Sections 6 and 7 just makes it
clearer that this is what the state legislature intended.
2:01:49 PM
MR. LEONARD lastly explained Section 8(i) regarding criminal
penalties for violations of the program. Under the CWA, the
mens rea, or "state of mind," that must be proven when seeking a
criminal sanction for violation of the program is "simple"
negligence. However, current state law requires that "criminal"
negligence be proven, which is a slightly higher state of mind.
For the state program to be approved, EPA is requiring that
state statutes be revised so that violations of the APDES
program only have to be proven with "simple" negligence, and
this is what Section 8(i) does.
2:03:19 P1M
CO-CHAIR GATTO inquired whether dumping water from a cooler of
beer constitutes simple negligence under the terms of HB 149,
page 1, lines 13 and 14.
MR. LEONARD remarked that it is absurd that there is no de
minimis exception to CWA requirements. In theory, if the
discharge from a person's cooler was to surface waters, a purist
could argue that it requires an NPDES permit. No one in their
right mind would actually say that, but there is case law that
says there is no generally acknowledged de minimis exemption to
the NPDES permit program. Therefore, he said, it is easy to
come up with absurd hypotheticals about the theoretical reach of
the program. In response to a further question, Mr. Leonard
stated that he did not think anyone would argue that the
drainage from a cooler would constitute waste material or
pollutants. In response to another example regarding hunters
camping out, he explained that in the real world there is a
functional de minimis doctrine whether the courts would
recognize it or not, the only question is where is the line
drawn between truly de minimis activities and what needs to be
permitted.
CO-CHAIR GATTO remarked that this is his point and he is looking
for the line that determines whether or not a situation is a
violation.
MR. LEONARD related his belief that one of the reasons that
industry supports the State of Alaska taking over the program is
the hope that state regulators will be more responsive and more
realistic than EPA's Region 10 office located in Seattle. He
said he did not know if this would make the problem any worse
than it is now, but that the state is not adopting any
requirements that are not already there under federal law. If
HB 149 goes through, then the state will be running the program.
2:08:12 PM
REPRESENTATIVE GUTTENBERG requested Mr. Leonard to expand on an
earlier comment that the type of permits, or conditions for
permits, could be tailored more tightly if the term "mandated"
is changed to "authorized" under Section 5 of the bill.
MR. LEONARD explained that he initially insisted that the word
"mandated" was fine, but that ultimately the state went along
with EPA's desires and changed it. He remarked that the
difference between the terms is a bit elusive, but that the way
he thinks the law would be implemented in practice is that DEC
would still exercise its discretion and put monitoring and
reporting requirements in permits that deal with compliance, for
example permit limits and water quality standards. Mr. Leonard
related his belief that DEC intends to keep requirements for
informational types of monitoring and reporting outside of the
permits, and that this information will be used in future
decisions regarding whether there ought to be permits for other
parameters. He noted that this is the plan even though it is
not found in the language of the bill. The bill is specifically
only for satisfying EPA's concerns. He stated that this is
where the line is drawn - if it is tied to compliance with
permit limits and with water quality standards, then the
requirements will go in the permits.
2:10:25 PM
MR. LEONARD, in response to a question from Representative
Seaton, reiterated that EPA has the ability to choose whether it
wants to put the requirements in a permit or outside of a
permit. In practice, he explained, EPA puts many of the
monitoring and reporting requirements into permits that DEC
intends to keep outside the permits. It is because of that and
because of some of the third party suits against permittees that
the work group was concerned about this point. He noted that
EPA sometimes implements what is known as "308 orders" where the
monitoring and reporting to EPA are done outside of the permit.
He said that historically EPA has put more requirements into the
permits themselves than DEC plans to do.
2:11:13 PM
REPRESENTATIVE SEATON asked whether this move to primacy is to
preclude enforcement of pollutant discharge permits by third
party action, and whether the state will increase its
enforcement to cover situations that are currently being looked
after by the public.
MR. LEONARD stated that all of the requirements of the permits
issued by DEC will still be enforceable by citizen suits because
they are conditions of NPDES permits. For example, the permit
limits that control how much pollutants can be discharged are
still enforceable. The question is whether to put a particular
monitoring requirement into a permit or do it separately via an
order. By placing the requirement into the permit, it is made
enforceable by the citizen suit mechanism. The intent of taking
over the program is not to get rid of citizen suits, but is
narrowly focused on monitoring and reporting that does not have
to do with compliance.
2:12:44 PM
REPRESENTATIVE SEATON requested that the committee be provided
with examples of cases that will now be outside of the permits
and will not be enforceable by third parties. He surmised that
DEC's budget will need to be increased in order for the state to
enforce the requirements outside of a permit.
2:13:25 PM
CO-CHAIR GATTO referred to the third paragraph of Governor
Palin's February 20, 2007, letter to Speaker Harris regarding
treatment of sewage. He asked whether domestic septic tanks
will now fall under requirements for treated sewage.
MR. LEONARD explained that the homeowner with a typical septic
tank will not be subject to the program because the discharge
will not be to a surface water. Only those homeowners with a
[sewage] pipe that goes to surface waters, such as a stream or
coastal waters, would be affected by this program.
2:14:21 PM
CO-CHAIR GATTO asked whether a hole for an outhouse that happens
to go into an aquifer which drains into a river would be
considered a violation of the program.
MR. LEONARD stated that this would not be a violation. He
related that there is some case law that talks about when ground
water has a connection to a surface water body, but that the few
cases that are reported have much stronger facts that
demonstrate measurable impacts to adjacent surface waters.
2:15:10 PM
CO-CHAIR GATTO asked whether draining a 500 gallon hot tub onto
the surface is a violation.
MR. LEONARD responded that it would not be a violation if it is
not to a surface water. If it is to a surface water, in theory
someone could say that is thermal pollution because it is heated
water going to a surface water. In practice in the real world,
nobody permits it and nobody tries to sue because it was not
permitted. He said that there is currently a defacto rule of
reason in place that he does not think will change.
2:16:34 PM
REPRESENTATIVE EDGMON pointed out a qualifier related to
discharge from a point source in Section 4, page 2, lines 29-31,
that may address Representative Gatto's hypothetical examples.
2:16:59 PM
CO-CHAIR JOHNSON asked whether the state's current regulations
are more restrictive than are EPA's, and whether there is a net
gain or net loss to the environmental impact by passing this
bill.
MR. LEONARD said no. The changes tighten the state's program by
bringing more activities within the scope of DEC's regulation.
He explained that EPA will only approve a state program that is
as stringent and inclusive as the federal program that it will
be replacing. These changes will make DEC's program just as
inclusive as EPA's.
2:18:20 PM
REPRESENTATIVE EDGMON inquired as to whether the term "any
waters of the United States" includes subsurface waters.
MR. LEONARD replied no. The term "waters of the United States"
is defined in the CWA and is tied to navigability; it does not
include subsurface or ground water.
REPRESENTATIVE EDGMON asked whether this is addressed in the
bill, perhaps through reference to Title 31.
MR. LEONARD said that the definition is not addressed in HB 149
because it is included in the regulations that have been adopted
and the regulations follow the federal definition from the CWA.
2:19:10 PM
REPRESENTATIVE GUTTENBERG offered his understanding that there
is a legal problem relating to the definition of "waters of the
United States" and that this is one of the reasons the state is
dealing with this issue.
MR. LEONARD remarked that this is a very active issue at the
federal level, including recent decisions by the Supreme Court
of the United States. He noted that the scope of "waters of the
United States" is dynamic and evolving, and also affects other
programs such as the U.S. Army Corps of Engineers' (USACE)
"dredge and fill" permit program. He acknowledged that the
State of Alaska will inherit some of that uncertainty by taking
over the program. As the scope of the term evolves, he said, it
will be reflected in what EPA requires states to do.
2:19:56 PM
REPRESENTATIVE GUTTENBERG referenced a court case involving the
Red Dog Mine and inquired whether the state is going far enough
towards meeting EPA standards and goals, and can the state be
taken to court if it does not follow through with its
obligations.
MR. LEONARD explained that should changes be made at the federal
level to the doctrine of waters of the U.S., [DEC] can change
the regulatory definition without coming to the legislature.
The state's program will be subject to ongoing federal oversight
and EPA can take the program back if the state does not
implement it in a way that complies with federal law. All
programs that are assumable by states under federal
environmental laws are subject to this kind of oversight.
REPRESENTATIVE GUTTENBERG commented that the state has a clear
interest in "Alaskanizing" as much of this as it can.
2:21:38 PM
REPRESENTATIVE SEATON requested Mr. Leonard's opinion as to
whether defining "waters of the United States" in Alaska's
statutes could be detrimental, given that the federal definition
is subject to change.
MR. LEONARD commented that this is a good question because
determining which definition should be in the statute was quite
a struggle. He said that the work group tried to create this
program in the regulations because it wanted to keep the bill as
simple as possible and because adding a statutory definition of
"waters of the U.S." might cause confusion. The current
definition of "waters of the state" is different than the
definition for "waters of the U.S." One particular difference
is that the state does not include wetlands in its definition of
"waters of the state," whereas EPA does include wetlands in the
definition of "waters of the U.S." To prevent confusion between
these definitions, it was decided to put the definition in the
regulations that were promulgated to implement this particular
program.
REPRESENTATIVE SEATON commented that he is concerned about
making changes in regulation without full knowledge of the
issues that might be affected, such as wetlands.
2:24:15 PM
REPRESENTATIVE ROSES reviewed his understanding that this is to
bring the permitting process and DEC's compliance requirements
in line with what EPA wants. He asked whether it is anticipated
that DEC will take over any of the enforcement requirements or
other actions currently being done by EPA.
MR. LEONARD reported that DEC will take over the enforcement at
the same time that it takes over the writing of the permits.
REPRESENTATIVE ROSES questioned why there is then a 0 fiscal
note.
MR. LEONARD deferred to DEC.
CO-CHAIR JOHNSON commented that this is one of his questions as
well.
REPRESENTATIVE ROSES stated that he is concerned over the fiscal
note and the wetlands issue.
2:25:28 PM
CO-CHAIR JOHNSON asked whether the state is assuming liability
and becoming the subject of lawsuits - rather than the EPA - by
taking over this program.
2:25:48 PM
MR. LEONARD referred to the Red Dog Mine court case that he is
familiar with and that is probably the court case referenced
earlier by Representative Guttenberg. He pointed out that in
this court case, the state and EPA were at loggerheads regarding
the Clean Air Act - therefore the case is irrelevant to this
issue. He confirmed that by taking over NPDES responsibilities,
DEC will become responsible for enforcing the permits that it
issues. He said that beyond this, he did not see large exposure
to liability from running the program and that he could not
speculate on the kinds of lawsuits that people may file in the
future.
2:26:42 PM
REPRESENTATIVE EDGMON noted that the discharge qualifier that he
had pointed out earlier in Section 4 on page 2 is not mentioned
in Section 2 on page 1, and that he would like for this to be
addressed.
CO-CHAIR JOHNSON responded that it might be something the House
Judiciary Standing Committee should look at.
2:27:17 PM
MS. KENT explained that the reason there is no fiscal note for
HB 149 is because a fiscal note was included in Senate Bill 110
when it was passed in 2005. This provided the funding necessary
for DEC to implement the program, she said.
REPRESENTATIVE SEATON inquired whether the 2005 fiscal note
anticipated that DEC would be responsible for taking enforcement
actions for those requirements that are now outside of the
permit and no longer enforceable by third parties.
MS. KENT stated that this was DEC's intention all along,
therefore the 2005 fiscal note does reflect that.
2:28:45 PM
CO-CHAIR JOHNSON opened public testimony on HB 149.
2:28:56 PM
STEVE BORELL, Executive Director, Alaska Miners Association
(AMA), testified in support of HB 149. He related that the
intent of the bill is to modify existing statute that was
previously passed to allow state assumption of EPA's NPDES
program. The current bill contains a few additional items that
are needed for the state to assume the program. For the state
to obtain primacy over NPDES, its authorities must be at least
as strong as those of EPA and this bill makes the changes that
will ensure that Alaska statutes meet that test. He commended
DEC for its work on this issue and urged passage of the bill.
2:30:40 PM
BOB SHAVELSON, Executive Director, Cook Inletkeeper, explained
that his organization works towards water quality and fish
habitat protection in the Cook Inlet watershed. He noted that
typically Cook Inletkeeper would support "Alaskanizing" this
permit program. However, he said, this was part of a permitting
package that the Murkowski Administration put through, therefore
it is important to look at this in the whole context of other
things that have occurred. For example, substantial changes to
the Alaska Coastal Management Program removed citizens from
decision-making in that program. Biologists were taken away
from the Alaska Department of Fish & Game (ADF&G) and moved to a
development agency under the Department of Natural Resources
(DNR). The Murkowski Administration lifted the long-standing
ban on mixing zones in salmon spawning areas. He opined that
this assumption of state primacy occurs within the
aforementioned context. He contended that Mr. Borell's support
of the bill is not surprising because AMA was one of the few
entities that was allowed to participate in the work group. He
related that Native groups, fishing groups, and ordinary
Alaskans were denied the opportunity to sit at the table in that
work group and to have substantive input into development of
this policy. The Murkowski Administration chose to have a
closed-door approach to this, he argued, and it is Cook
Inletkeeper's opinion that that approach does not result in the
best public policy.
MR. SHAVELSON warned that this bill will result in having fewer
people doing a very complex job that was previously done by EPA.
It is basically building bigger state government when nothing
indicated that the system was broken. He explained that the
state has the authority to weigh in on any federal permit to
ensure that it protects water quality standards and the
designated uses like fishing and drinking. He maintained that
DEC routinely, because of resource constraints, either
affirmatively waives that requirement or puts in no time when
the department certifies the permit. He said this makes him
question DEC's commitment to enforcing the law since they are
not already doing so. He urged the committee to hear from EPA
and how their relationship has been with DEC because EPA
rejected the initial proposal that went in from the Murkowski
Administration. He warned that financially the state will be
taking on a large program and attempting to do more with less.
2:35:33 PM
MR. SHAVELSON, in response to a question, contended that more
equitable sharing of the permitting fees would have occurred had
citizens and other folks been allowed to participate in the
working group. He said that industry refused to pay more for
this program, the result being a larger expenditure for Alaska
government. Had there been a more open and transparent process,
there might have been a more equitable solution that Cook
Inletkeeper could have supported. In response to a further
question, Mr. Shavelson said that there will be an additional
cost to permittees in Alaska.
2:36:52 PM
CO-CHAIR JOHNSON closed public testimony after ascertaining that
no one else wished to speak. He announced that the bill is
being held until the committee receives answers to its questions
from DEC.
HB 165-BIG GAME GUIDES AND TRANSPORTERS
2:37:44 PM
CO-CHAIR JOHNSON announced that the final order of business
would be HOUSE BILL NO. 165, "An Act relating to providing field
accommodations for big game hunters."
2:38:14 PM
SUZANNE HANCOCK, Staff to Representative Gabrielle LeDoux,
presented the sponsor statement on behalf of Representative
LeDoux. She explained that in 1996 legislation was enacted to
establish definitions and laws for licensed guides, outfitters,
and transporters of big game hunters. However, there is no
provision for a cabin owner who merely wishes to rent his or her
cabin to people who may or may not be hunting. Many rural
Alaska residents have auxiliary cabins that are empty part of
the year. She stated that HB 165 will allow cabin owners to
rent their cabins without falling into any of the regulations
established under the 1996 statute. Generating economic
development is difficult in rural areas, she noted, and this
bill will enable people to provide a service and earn revenue.
She said that professional guides and members of the Board of
Game worked with Representative LeDoux to craft the bill.
2:39:37 PM
REPRESENTATIVE WILSON gave an example of being flown into a
cabin for a bear hunt. She said that the cabin was owned by the
pilot and asked whether HB 165 disallows a pilot from flying big
game hunters into a cabin that is owned by that pilot.
MS. HANCOCK stated that Representative Wilson's example probably
put that pilot in the position of being considered a
transporter. She explained that HB 165 applies only to an
individual who rents a cabin without providing any other service
but the roof over the renter's head. In response to a further
question, she related that Rick Metzger, the cabin owner who
brought this issue to Representative LeDoux's attention, will be
testifying. She said that other cabin owners having the same
problems also contacted Representative LeDoux.
2:42:28 PM
RICK METZGER related his opinion that the pilot in
Representative Wilson's example would not be affected by HB 165.
He surmised that the pilot in her example was probably a
licensed transporter because a cabin owner can only rent his or
her cabin to hunters if he or she also provides the
transportation to that cabin.. He said that under current law,
a pilot cannot fly hunters to a private cabin that is owned by
someone else.
2:43:13 PM
REPRESENTATIVE WILSON asked if Mr. Metzger is a guide wishing to
rent cabins that he owns in various locations.
MR. METZGER responded that he is not a guide, only a private
property owner with a couple of cabins. He said that he is
trying to develop a source of supplemental income by renting his
cabins to hunters.
2:43:56 PM
CO-CHAIR JOHNSON inquired whether his understanding is correct
that under current law a cabin owner cannot rent his or her
cabin to someone who is hunting.
MR. METZGER related that this is what he has been told. He
explained that when he first set up his cabin rental business,
he inquired with the Division of Corporations, Business, and
Professional Licensing, the Division of Alaska State Troopers,
and the Office of the Attorney General to get information to
ensure he was legal in renting his cabins. He obtained a
business license for real estate rental because he was told that
that was the only thing necessary. In November 2006 he was
visited by Alaska State Troopers who told him that under the
definition of "field," he could not legally rent his cabins [to
big game hunters]. He said that he "fell into a trap" because
he is neither a licensed guide nor a transporter. In response
to a question, Mr. Metzger stated that it is his understanding
that when the legislature re-implemented the Big Game Commercial
Services Board, changes were made to a 1996 statute in relation
to the definition of "field." These changes went into affect in
August 2006 and it was these changes that the troopers were
enforcing.
2:46:40 PM
TOM TEMPLE said that he supported HB 165 because he owns a
remote cabin that he would like to rent to big game hunters. He
said that he is familiar with "takings" issues because he works
for a law firm. He said that he does not represent Mr.
Metzger's interests, but he explained that Mr. Metzger was free
to rent his cabins until August 2006 when regulations re-
implementing the Big Game Commercial Services Board also made
changes to the definition of "field." This change resulted in
troopers believing they had new enforcement options and they
threatened to issue citations. Mr. Temple said that he did not
think this was the intent when the definition was changed. He
said that he would also like to have the ability of renting
cabins from other private property owners for himself without
having to use a guide. He related that there have been numerous
opinions, but that the Office of the Attorney General has not
issued an opinion and this is the opinion that would matter the
most. He pointed out that the state and federal governments can
rent their remote cabins to hunters, but a private property
owner cannot.
2:49:38 PM
MR. TEMPLE, in response to a question, reiterated that the
regulation went into effect in August 2006. He said that it is
this regulation, not legislation, that changed the definition of
"in the field" so that a cabin in the field is treated
differently than a cabin associated with a city or town. The
regulation did not affect situations such as the example given
by Representative Wilson where a pilot flies big game hunters to
a cabin that is owned by that pilot. However, the regulation
change has resulted in various interpretations as to whether it
is legal for private property owners to rent their cabins to
hunters without having a transporter's license. Should an owner
get a transporter's license in order to rent out his or her
cabin, a different statute then requires that the owner
transport the hunter to the cabin. He said that this situation
creates a problem for the average cabin owner who does not have
the ability to provide the transportation.
2:51:19 PM
CO-CHAIR GATTO asked whether the troopers investigated because a
complaint had been filed or because the troopers had unitarily
decided to enforce the issue.
MR. TEMPLE offered his understanding that there were no
complaints. He said that he had personally spoken with a big
game guide who owns cabins located in the same region as Mr.
Metzger. He related that this guide would prefer that resident
hunters be able to rent Mr. Metzger's cabins because then the
hunters would not be hunting in the same area as the guide's
cabins. Mr. Temple said that he did not think the change was
supported by big game [guides], but rather that it is an
unintended consequence.
2:53:09 PM
REPRESENTATIVE ROSES asked if part of the issue at hand is that
under AS 08.64.680, guides and transporters are required to have
$100,000 in bonds, insurance, or assets.
MR. TEMPLE remarked that he believes this would be an issue to
most private property owners, especially for a person who merely
wants to rent his or her cabin without providing any other
service that a guide would provide. He explained that the cabin
owner only needs to have an Alaska business license for rental
real estate at a cost of $100 annually, plus the appropriate
insurance. However, becoming a transporter or guide requires
bonds and experience as an assistant guide for a period of time
before qualifying to be a guide, and this creates an onerous and
unattainable situation for a cabin owner. Additionally, he
said, the transporter report forms clearly indicate that this is
not the intent of the regulations because there is no place to
accurately report an owner who is merely renting a cabin even if
he or she had a transporter's license.
2:55:08 PM
REPRESENTATIVE ROSES asked whether responsibility could fall
onto the transporter or cabin owner for a hunter who violates
state hunting laws while renting that person's cabin.
MR. TEMPLE surmised that this might be a very real concern,
especially in cases where the cabin owner is not on site or has
not met the renter. He said that most remote state and
federally owned cabins are rented out via the Internet, and that
the Internet is often the method used by private cabin owners,
as well. A hunter who violates laws should be held accountable,
he said, but to say that the private property owner should also
be accountable is not intended.
2:56:49 PM
CO-CHAIR JOHNSON announced that HB 165 is being held for further
consideration at the next committee meeting.
2:57:25 PM
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:57 p.m.
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