Legislature(2001 - 2002)
02/20/2002 01:10 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
February 20, 2002
1:10 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Beth Kerttula
MEMBERS ABSENT
Representative Mary Kapsner
COMMITTEE CALENDAR
HOUSE BILL NO. 420
"An Act relating to the use of water; and providing for an
effective date."
- MOVED HB 420 OUT OF COMMITTEE
HOUSE BILL NO. 421
"An Act relating to water use and appropriation."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 392
"An Act relating to the use and appropriation of water."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 420
SHORT TITLE:TEMPORARY WATER USE PERMITS
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
02/13/02 2243 (H) READ THE FIRST TIME -
REFERRALS
02/13/02 2243 (H) RES
02/20/02 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
MARILYN CROCKETT, Deputy Director
Alaska Oil & Gas Association (AOGA)
121 West Fireweed Lane, Number 207
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HB 420.
BOB LOEFFLER, Director
Division of Mining, Land and Water (Central Office)
Department of Natural Resources (DNR)
550 West 7th Avenue, Suite 1070
Anchorage, Alaska 99501-3579
POSITION STATEMENT: Testified in support of HB 420.
CARL ROSIER, President
Alaska Outdoor Council (AOC)
8298 Garnet Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 420.
TADD OWENS, Executive Director
Resource Development Council (RDC)
121 West Fireweed Lane
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HB 420.
SUSAN SCHRADER, Representative
Alaska Conservation Voters (ACV)
P.O. Box 22151
Juneau, Alaska 99802
POSITION STATEMENT: Testified on HB 420.
JAN KONIGSBERG
Trout Unlimited
1399 West 34th, Number 205
Anchorage, Alaska 99503
POSITION STATEMENT: Testified on behalf of the Alaska Public
Water Coalition on HB 420.
BILL TEGOSEAK, Executive Director
Inupiat Community of the Arctic Slope (ICAS)
P.O. Box 390
Barrow, Alaska 99723
POSITION STATEMENT: Testified on HB 420.
ACTION NARRATIVE
TAPE 02-8, SIDE A
Number 0001
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 1:10 p.m. Representatives Masek,
Scalzi, Fate, Green, Chenault, McGuire, Stevens, and Kerttula
were present at the call to order.
HB 420-TEMPORARY WATER USE PERMITS
CO-CHAIR MASEK announced that the only order of business before
the committee would be HOUSE BILL NO. 420, "An Act relating to
the use of water; and providing for an effective date." [The
bill was sponsored by the House Resources Standing Committee.]
CO-CHAIR MASEK read from the sponsor statement: "A statutory
revision is needed to better facilitate the ability of the
Department of Natural Resources [DNR] to issue temporary water
use permits. A repeal of the sunset clause included in last
year's HB 185 is intended to protect the state's interests in
water use distribution cases currently under appeal."
Number 0236
MARILYN CROCKETT, Deputy Director, Alaska Oil & Gas Association
(AOGA), informed the committee that AOGA is a trade association
of 18 oil and gas companies with interests and operations in
Alaska. She explained that HB 420 would repeal the sunset
provision that was contained within HB 185, which passed the
legislature last year. She said HB 185 put into statute the
existing practices that DNR had been using for many years with
regard to issuance of temporary water use authorizations. Those
authorizations are important to the oil and gas industry; they
provide a mechanism to construct ice roads on the North Slope.
She explained that ice roads have been identified as the
preferred method of accessing remote areas during the wintertime
without having to place gravel. She remarked that the oil and
gas industry is minimizing the impact on the environment from
constructing the ice roads and using the temporary water.
Number 0390
MS. CROCKETT said temporary water use authorizations do not
convey a water right; they are revocable at any time. She said
temporary water use authorizations do not require public notice
requirements that a water right or water appropriation would
carry with it because the authorizations provide some additional
rights that temporary water use does not have. She remarked
that [AOGA] encourages the committee to move HB 420.
Number 0438
BOB LOEFFLER, Director, Division of Mining, Land and Water
(Central Office), Department of Natural Resources (DNR),
informed the committee that the state has had a temporary water
use program in effect for 20 years. He said the program is
administered in a way that protects the environment and meets
the temporary water needs of Alaskans and industry. He said DNR
fully supports the passage of HB 420.
Number 0483
REPRESENTATIVE KERTTULA reflected on the passage of a bill from
the prior year. She asked Mr. Loeffler for an update on the
[water permit] backlog and also for a description of the process
that DNR set up to administer the water permits.
MR. LOEFFLER said he believes last year the legislature gave the
water use program additional funds so that DNR could finally get
to the water rights of individual Alaskans. He explained that
because of a couple of lawsuits and concentrating on the issues
of water rights, state income, and employment, DNR had only
finished its hiring and training around late December. He said
he suspects that there will be a substantial number of water
rights administered so that "you" can see how the system works
in about a month to six weeks. He commented that he did not
have a lot of progress to report at this time.
REPRESENTATIVE KERTTULA remarked that HB 420 is pretty simple;
however the bill [HB 185] that HB 420 is extending was actually
fairly complicated. She asked if any public notices had been
issued on the large permits.
MR. LOEFFLER replied that DNR issued approximately 20 public
notices on the large water permits on the North Slope this year.
REPRESENTATIVE KERTTULA asked how many small permits had been
put through in the same time as the 20 [public notices].
MR. LOEFFLER commented that DNR typically does about 100 per
year. He said he suspects that DNR has done some portion of
about 40 or 50, but he couldn't say exactly how many had been
done and he doubted public notice had been issued on any of
those. He added that most of those would not have been on the
North Slope.
REPRESENTATIVE KERTTULA asked what kind of response DNR received
on the public notice for those that were on the North Slope.
MR. LOEFFLER answered that DNR received comments from the
Northern Alaska Environmental Center and Greenpeace.
REPRESENTATIVE KERTTULA asked for an update on the court action
from last year involving the permits.
MR. LOEFFLER answered that there were two court actions in
particular. First, in October a judge ruled on how DNR
interpreted the state provisions in its appeal language. He
explained that the subject of the appeal was a temporary water
use permit; however, the judge ruled on how DNR interpreted its
appeal regulations and not the [actual] permit. He said at the
time of the [ruling] DNR's appeal regulations had been repealed
in a new section, so the judge ruled on an appeal program that
had since been repealed and replaced by new procedures. He
remarked that the substantive aspect that the judge ruled on,
how he determined a stay, didn't really have any effect. He
said "we" think the language and background of his judgment was
in serious error, so it's being appealed by the Department of
Law. He said the second [lawsuit resulted in] a remand last
spring for work on two issues involving water rights. He added
that DNR has finished that remand.
Number 0795
REPRESENTATIVE KERTTULA asked what the ruling was.
MR. LOEFFLER said DNR issued a temporary water use permit, which
was appealed. He said at that time there was an automatic stay
provision, unless DNR took it off; Greenpeace asked that the
stay be retained. He said DNR went to the applicant and asked
for the applicant's side of the story. He said DNR told
Greenpeace a day in advance that it was going to lift the stay,
which it did. He said the judge ruled that DNR had to give
Greenpeace a due-process right to respond, and to provide the
applicant's response and DNR's decision to lift the stay.
Number 0926
CARL ROSIER, President, Alaska Outdoor Council (AOC), informed
the committee the AOC is a federation of approximately 50
outdoor recreation groups statewide; they have strong interests
in matters pertaining to fish and wildlife. He commented that
the appropriation of water is one of AOC's major interest areas.
He said AOC's concern in this case is the protection for the
multiple fishery resources of the state; there must be instream
flow reservations if they are to survive. He said AOC is
concerned that the simple deletion of the sunset provision is
little more than a "Band-aid" approach to a system adopted last
year that needs to be thoroughly reviewed. He said AOC believes
that the legislature had some misgivings about the final version
passed last year with the inclusion of a one-year sunset
provision. He remarked that there seems to be less than total
agreement and less than togetherness between the Alaska
Department of Fish and Game (ADF&G) and DNR over the priority of
protecting fish and wildlife within DNR's "lack of priority for
instream flow adjudication to reservation applications." He
said he thinks many questions need to be answered at the present
time, in view of [the past] year, to look at the administration
of this particular Act. He asked how much water can be
authorized under the temporary water use permit.
MR. ROSIER asked what procedures and criteria DNR utilizes in
making a temporary water use permit decision of where, when, and
how much; what the examples are of present temporary water use
permit applications; and how many are out there presently. He
asked what the working relationship is among ADF&G, the
Department of Environmental Conservation (DEC), and DNR. He
said ADF&G and DEC objected to issuance of temporary water use
permits. He suggested that there have been efforts made by
ADF&G to raise various issues regarding instream flow and
adjudication. He added that AOC does not know what DNR's
response has been. He said DNR has determined how much water
has been applied for or appropriated from any specific drainage
before a temporary water use permit is issued.
MR. ROSIER asked what had been done to clean up the water rights
applications now on the books. He said it was an issue back
when he worked for the Hickel Administration, and it doesn't
seem to be any further along today. He said it doesn't make a
lot of sense to be dealing with this issue on a temporary basis,
adding appropriations of water on top of a backlog of
appropriation applications that have been lying around [for a
long period of time]. He remarked that there has to be some
logical basis for doing what is [being proposed] in regard to
the more formal applications for appropriations. He said AOC
doesn't necessarily have a problem with a temporary water use
permit, but there definitely should be standards as well as
oversight by all three agencies before [the committee] moves
ahead on the bill.
Number 1186
CO-CHAIR SCALZI asked Mr. Rosier if he was concerned about "due
deference" in regard to ADF&G.
MR. ROSIER said it would be an improvement over what AOC
currently has on this issue. He mentioned that AOC went through
a similar process with the Forest Practices Act [Alaska Forest
Resources and Practices Act]; AOC feels very strongly that there
has to be "equal footing" as far as the agencies are concerned.
Number 1235
CO-CHAIR SCALZI agreed, as long as the timeframe the agencies
act upon is short enough.
MR. ROSIER said, "That's right."
Number 1306
REPRESENTATIVE KERTTULA asked Mr. Rosier what level of water
usage would be appropriate and whether it is too difficult to
tell because of the effect it might have on a stream or spawning
area.
MR. ROSIER said it was difficult to answer. He said his view is
that it is going to change in areas of the state where the work
is performed. He suggested that the requirements for water for
an ice road on the North Slope would probably be substantially
different from what temporary water use might be in Southeastern
Alaska. He said he foresees that the level will be based on
individual projects.
REPRESENTATIVE KERTTULA asked if it would be helpful to have a
system in which other agencies were given notice and their
expertise had to be relied on.
MR. ROSIER said, "Yes."
Number 1365
TADD OWENS, Executive Director, Resource Development Council
(RDC), testified via teleconference. He informed the committee
that RDC is an Alaskan-based nonprofit trade association that
represents companies from the mining, timber, fisheries,
tourism, and oil and gas industries. He explained that RDC has
been working with DNR and the legislature for the past few years
on issues related to the water program. He stated that RDC is
strongly supportive of HB 420. He said DNR's current process
for handling temporary water use authorizations is a good
process that provides the necessary protections to the
environment and the fish and wildlife resources around the
state. He explained that the temporary water use authorizations
are very important to RDC's membership for development
activities around the state. He reiterated that RDC is
supportive of HB 420 and he urged the committee to pass the
bill.
REPRESENTATIVE KERTTULA asked Mr. Owens to describe the
protection that the current program offers.
MR. OWENS suggested that it would be more appropriate for Mr.
Loeffler to give the details of the program.
REPRESENTATIVE KERTTULA asked Mr. Owens to proceed.
MR. OWENS explained that current regulation requires
consultation with ADF&G and DEC in processing the temporary
water use authorizations. He said the authorizations, unlike a
formerly adjudicated water right, are temporary, revocable
permits. He suggested if there were some demonstrated
environmental impact, DNR would have the authority to revoke the
authorization at any time; having the distinction between a
temporary water use authorization and a property right is
important. He said the temporary water use authorizations do
not grant or imply a priority for a property right for water
use. He suggested this would allow water use for construction
projects around the state to go forward in a timely manner, with
adequate safeguards to ensure that water is used appropriately.
Number 1620
SUSAN SCHRADER, Representative, Alaska Conservation Voters
(ACV), explained that ACV is a nonprofit organization consisting
of approximately 34 member organizations; the combined
membership in Alaska is about 35,000 registered voters. She
said last year she spoke to the committee about the concerns
that ACV had with HB 185; HB 420 eliminates the sunset
provision. She reiterated ACV's concerns with HB 185. She said
ACV supported the provisions in HB 185 that set up a new fee
system for DNR to manage its water program; however, there were
concerns with two of the provisions, including the exemption
from public notice and comment. She said in addition to the
Northern Alaska Environmental Center, a number of Native groups
have commented on temporary water use permit applications. The
Native groups' concerns typically involve subsistence use on the
North Slope and the need to maintain and protect those uses.
She said the rights of Alaskans should not be compromised by
prohibiting the opportunity to publicly notice and comment on
the temporary water use permits.
Number 1716
MS. SCHRADER turned attention to AS 46.15.080. She said the
criteria in this section deal with a number of different
concerns, from the effects water withdrawal has on economic
activity to impacts on fish and other resources. She indicated
that she thought DNR should be required to perform an analysis
of those impacts. She explained that under current law, a
temporary water use permit is good for five years; depending on
some determinations made by the legislature on some current
bills, it may be extended back to the original ten-year length
of time. "It is hardly temporary," she remarked. She suggested
that the North Slope is a "desert" that gets 4 to 7 inches of
rain per year. She said the oil and gas industry uses a huge
amount of water on the North Slope. There are other interests,
resources, and concerns that need to be protected, she said.
Number 1806
MS. SCHRADER suggested that having DNR go through an analysis of
the criteria would better protect this resource. She suggested
that with the introduction of HB 420 and other related bills,
the legislature has taken quite an interest in the [Alaska]
Water Use Act. She said ACV does not have a problem with that;
however, they would suggest that a better way of dealing with
potential changes to the Alaska Water Use Act is to get the
interested parties together. She suggested a way to do this
would be to reactivate, refund, and reenergize the water
resources board; to have them hold hearings around the state;
and to get the oil and gas industry to work with the Native
groups on the North Slope and the agencies - DEC, DNR, and ADF&G
- and look into what changes, if any, are needed in the Alaska
Water Use Act. She remarked, "Simply sitting here and having a
bill written by the oil and gas industry, passed down without a
lot of opportunity for other people to effectively weigh in, I
don't think is doing the protection of this critical resource
very much good." She said ACV would recommend those suggestions
as an alternative to extending the sunset provision in HB 185.
Number 1860
CO-CHAIR SCALZI asked Ms. Schrader which resource she is
concerned with.
MS. SCHRADER answered that she is concerned with all of the
resources on the North Slope: the water resources, fish, and
wildlife that depend so critically on it. She said the lakes
and streams on the North Slope are tapped heavily under current
temporary water permits to build the ice roads.
CO-CHAIR SCALZI stated that he is unaware of any other
provisions that may help the oil and gas industry in regard to
accessing those areas that [Ms. Schrader] finds so sensitive.
He remarked that those ice roads seem to be a good solution. He
asked if there was anything else available that would augment
the use of ice roads.
MS. SCHRADER said she is not aware of the oil and gas industry's
having any problems with getting ice roads built. She agreed
with Mr. Rosier's suggestion that some instream flow
reservations should be examined, in addition to the amount of
water in the multitude of lakes on the [North Slope] that are
potentially going to be used. She stated that AOC didn't have a
problem with ice-road development; she agreed that it is better
than gravel roads. She stated that simply letting the oil and
gas industry have total, unfettered access to the water on the
[North Slope] is not in the best interest of anyone.
CO-CHAIR MASEK offered her opinion that there is no problem on
the North Slope with regulatory provisions; the industry is
continuously being sued by conservation organizations. She said
HB 420 will take care of the sunset provision; there are also a
couple of water bills [coming before the committee.] She asked
that comments be kept to HB 420.
Number 2024
REPRESENTATIVE GREEN recalled that when he was building ice
roads [on the North Slope], streams weren't used. Mentioning
concern that the fish might be impacted, he said the lakes used
for water are sterile; in addition, there are numerous shallow
lakes [on the North Slope].
REPRESENTATIVE KERTTULA asked Ms. Schrader if she knew what
DNR's regulations were and if they provided any process for an
impact analysis.
MS. SCHRADER suggested that Mr. Loeffler would be the best
person to answer that question. She said she'd checked with Mr.
Loeffler last fall, and DNR had not yet drafted regulations to
address HB 185. She said this summer there were draft
regulations about the water use program circulating for public
comment; however, they were not the ones to be promulgated under
HB 185.
Number 2119
REPRESENTATIVE KERTTULA asked what kind of impact analysis was
presently being done on the temporary water permits before the
permits are issued.
MS. SCHRADER reiterated that Mr. Loeffler should answer that.
She said one of the contentions of some of the groups that she
represents is just how much of that is being done.
REPRESENTATIVE FATE indicated that a limit on temporary water
use permits could have an effect on Alaska's economy. He
remarked that if HB 185 needs to be fixed, it could be done at
another time.
Number 2215
JAN KONIGSBERG, Trout Unlimited, testified via teleconference on
behalf of the Alaska Public Water Coalition, a group
representing sport-fishing interests and organizations, former
members of the Alaska water board, and other individuals who'd
decided to work together after HB 185 was passed last year over
the objections of a number of individuals. He said they are
concerned about executive actions, legislation, and regulatory
initiatives that affect water resources but further special
interests at the expense of the public's interest. He stated
that the group is particularly dismayed by DNR's demonstrated
inability to manage Alaska's freshwater resources over the last
several years. He said the group is opposed to HB 420; however,
the group does support the temporary water use permit for actual
temporary uses.
MR. KONIGSBERG suggested that such authorizations must be
limited to one-year terms, preceded by public notice and
accompanied by working public-interest "determinations." He
suggested that current regulations exempt the use of seawater
and the emergency use of water to protect life or property from
any authorization; the group does not believe that any other
exemptions are needed for temporary water uses. He said the
group is most concerned about the impact on the environment
resulting from temporary water use permits.
Number 2315
MR. KONIGSBERG reminded the committee of Article VIII [of the
state constitution], regarding the sustained-yield principle
applied to the replenishable resources of Alaska. He said the
group believes that the sustained-yield mandate forbids any
action that would reduce the sustained yield of any renewable
resource. He said in regard to the replenishable salmon
resources, it is obvious that salmon need water. He stated that
it is the responsibility of the government to ensure that
habitat conditions which maximize the yield of fish are
maintained, not degraded.
MR. KONIGSBERG said the group believes that under the provisions
of temporary water use permits under HB 185, removal of the
sunset provision is jeopardizing the salmon habitat throughout
the state. He reaffirmed that the responsibility to protect
habitat is not discretionary, optional, or conditional on any
factors - whether they're cultural, political, or economic. He
said, "It's pretty simple: we shouldn't be harming the goose
that laid the golden egg, ... and removal of the sunset
provision is going to drown, if not cook, the goose." He said
the group believes that if the people's representatives are not
willing to fund the actual cost of properly and appropriately
administrating the Alaska Water Use Act through devices such as
HB 185, private uses will have to wait until adequate self-
funding is available. He remarked that amending the [Alaska]
Water Use Act to reduce the cost of giving away a public
resource is simply not acceptable.
MR. KONIGSBERG said the bottom line regarding Alaska's water
resources is that water is needed to sustain fish, wildlife, and
the public health; therefore, the only significant amendment to
the [Alaska] Water Use Act that the group would support is the
automatic protection of instream flow for fish, wildlife, public
safety, and human health.
Number 2428
BILL TEGOSEAK, Executive Director, Inupiat Community of the
Arctic Slope (ICAS), testified via teleconference. He told the
committee that last year he had provided comment on HB 185. He
remarked that ICAS opposed giving away natural resources that
belong not to the state, but to the people of Alaska. He
suggested that HB 185 had authorized billions of gallons of
water to be given away to special interests, in this case, the
oil industry in the [Arctic Slope] region. He said [HB 185]
permitted the extraction of [large] amounts of water from 90
lakes; this was done without an environmental assessment, which
would determine the impacts to other natural resources and the
ecosystem on the North Slope.
MR. TEGOSEAK reiterated that he felt that a temporary water
bill, in this case, is only a special-interest bill intended to
satisfy the needs of special interests such as the oil industry.
He remarked that the bills don't agree with what ICAS considers
to be temporary; the bill [would extend the provision for five
years]. He reiterated that the bill would allow a continuation
of giving away natural resources that belong to the state. He
said, "The giving away of water, in our region, gives an
appearance of geographic discrimination of cultural
incompetence." He reiterated that there has been no request for
an environmental assessment regarding the extraction of water.
He indicated legislative representatives from Fairbanks and
Anchorage would have to answer to their constituents in regard
to the extraction of billions of gallons of water in the 90
lakes through the use of temporary water use permits. He said
he wants to be sure the committee understands "our" dependence
on the natural resources. He suggested that there were no
public hearings on HB 185 as it went through last year's
session. He said he thought the people that are most affected
need to provide comment; however, the people don't have the
means to do that in small villages. He added that there is only
one Legislative Information Office (LIO) [in the area], in
Barrow.
Number 2612
REPRESENTATIVE McGUIRE stated that by supporting HB 420, she is
not supporting any special interests; she resents that
allegation. She said as a member of the House Resources
Standing Committee she is there to look at the delicate balance
between conservation and developing resources, as a resource-
based state, to support the economy; it is a job that she takes
very seriously. She said she believes that the program has
worked in the past. She said as she understands it, there are a
lot of requirements that the commissioner has to consider in
effectuating any regulations, including coordination with DEC
and ADF&G and with local, state, and federal agencies that look
at local soil and water conservation districts. She stated that
DNR takes its job seriously, and that she trusts DNR to balance
these things out when it issues the temporary water permits.
Number 2719
REPRESENTATIVE KERTTULA asked Mr. Loeffler to explain the
progress of the regulations that were to be developed to
implement HB 185, as well as the effects of those regulations.
She also asked Mr. Loeffler what type of impact analysis is
performed by DNR and what amount of water would have to be used
before an impact analysis would be performed.
MR. LOEFFLER said the temporary water use program operated
successfully for 20 years; as a result, no regulations were
needed to implement temporary water use permits. He indicated
DNR has regulations available that were authorized by the bill.
He said regulations in regard to fee provisions are expected to
be implemented by spring; therefore, fees will be increased. He
explained that last fall, DNR implemented streamlined
regulations for the water rights program; these regulations
allowed a 60-day comment period, which closed in October; DNR is
still reviewing the comments.
Number 2793
MR. LOEFFLER remarked that he feels DNR and ADF&G have an
extremely close working relationship, especially in the northern
region. He said the type of [impact] analysis performed by DNR
reviews the potential effects on fish and wildlife. He
explained that DNR has a couple of policies that are reasonably
standard; DNR has not authorized a withdrawal from a stream or
river on the North Slope since 1976. The water either comes
from lakes or reservoirs that are constructed specifically for
that purpose.
MR. LOEFFLER said the only connection to the river doesn't occur
in the winter when flows are critical; it occurs in the "spring
flood flows." This year, DNR reviewed temporary water use
permits for the cumulative impact of authorizations applied for
or authorized before issuing them; DNR worked closely with ADF&G
and asked for its review. He explained that DNR does a more
streamlined version of this with all temporary water use
permits, looking at other authorizations from that source before
the permits are issued. He said the backlog for instream flow
is a critical problem; however, DNR looks at [instream] flow
applications to ensure that an authorization wouldn't impact
that application before it is issued.
CO-CHAIR MASEK asked Mr. Loeffler to comment on the testimony
given by Mr. Konigsberg in regard to the fishing issue.
MR. LOEFFLER said that he was not in the room at the time and
therefore couldn't comment specifically on Mr. Konigsberg's
testimony. He indicated that temporary water use permits are
compared to instream flow reservations before they are issued.
He said he believes the "critical mission" is to protect the
fish; he is proud that has been done; he believes that ADF&G
would testify that DNR had [protected the fish]. He said in the
event of a problem, the temporary water use permits are
revocable; they have been revoked and modified in the past. He
indicated that [temporary water use permits] are compared with
instream flow applications before DNR issues them.
Number 2922
REPRESENTATIVE McGUIRE brought attention to subsection (i),
beginning at page 5, line 31 [of CSHB 185(FIN)], which reads,
"The commissioner may modify, suspend, or revoke an
authorization issued under this section if the commissioner
determines it necessary to protect the rights of other persons
or the public interest". She expressed her belief that this
[provision] is something that the department would take into
consideration if necessary.
MR. LOEFFLER said "correct"; it is a mandate DNR takes
seriously.
Number 2976
CO-CHAIR MASEK brought attention to page 5, line 20, subsection
(e) [of CSHB 185(FIN)].
TAPE 02-8, SIDE B
Number 2980
MR. LOEFFLER explained that the [subsection] is included because
the public notice criteria are [related] to AS 46.15.080. He
said DNR wants to ensure through the courts that there is a
dividing line between water rights and temporary water use
permits. He explained that water rights are an irrevocable
property right. They go through AS 46.15.080, require public
notice, and are recorded; however, temporary water use permits
are revocable, are not a property right, and are not recorded.
He said AS 46.15.080 is a link; DNR wanted to ensure that [water
rights and temporary water use permits] are separate so that it
has [the option] of revoking them. He offered an example: if a
small amount of water is needed for a road construction project
for making concrete, DNR is not required by the courts to go
through public notice in a 30-45 day period. He added that he
thought that a [public notice requirement] would devastate
Alaska's short construction season.
CO-CHAIR MASEK brought attention to page 5, line 22, subsection
(f) [of CSHB 185(FIN)], which reads, "The commissioner may
impose reasonable conditions or limitations on an authorization
for temporary use of water to protect the water rights of other
persons or to protect fish and wildlife habitat, human health,
or other public interests".
MR. LOEFFLER remarked that DNR does this on a regular basis.
Number 2901
REPRESENTATIVE KERTTULA asked Mr. Loeffler if there is another
kind of permit that does not require a public notice for using a
public resource.
MR. LOEFFLER answered yes. He explained that most permits for
the use of state resources don't require public notice because
they don't involve property rights. Those include cross-country
travel, trapping cabins, and operations on a mining-claim
reclamation; the property right is the claim itself [in the
latter example]. By contrast, the state constitution requires
prior public notice for property rights; however, if it is
revocable - or, according to the words of the court, "not
functionally irrevocable" - then DNR is not required to give
public notice.
REPRESENTATIVE KERTTULA asked Mr. Loeffler if DNR gives notice
on some of those permits.
Number 2836
MR. LOEFFLER said that notice is given when DNR believes there
is a public-values question or public controversy; however,
sometimes it doesn't give notice; it is not required by law.
Number 2793
REPRESENTATIVE FATE moved to report HB 420 out of committee with
individual recommendations and a zero fiscal note.
REPRESENTATIVE KERTTULA objected for purposes of discussion.
She explained that under the circumstances, she feels DNR has
done a really good job trying to [meet the terms] of a one-year
period; however, she is troubled by the bill's moving so fast.
She said she feels that she doesn't have a good [understanding]
with only three minutes' testimony from each witness on exactly
how DNR is working the system presently; she is not clear on how
far the backlog is, or what the concerns are. She expressed
concern about the fiscal situation, citing last year's fiscal
note that was implemented to [deal with] the backlog. She
agreed with Mr. Loeffler's testimony in terms of his belief and
DNR's actions on trying to provide public notice and deal with
the bigger usage; however, she expressed uncertainty about the
future. She asked that the bill be held over so the committee
would have more time to review it. She added that in comparison
to other bills, however, HB 420 seems to be the least
problematic.
CO-CHAIR MASEK remarked that HB 420 is providing a statutory
revision repealing the sunset provision in HB 185. She
expressed concerns about other, forthcoming water bills. She
added that she thinks more work needs to be done on the issue.
She said she felt there would be adequate time to come up with a
permanent solution if DNR and the committee worked [together] on
the issue during the remainder of the session and into the
interim.
REPRESENTATIVE KERTTULA responded that she understands Co-Chair
Masek's position, but believes it would be better to consider
all of the [water bills] together.
Number 2653
REPRESENTATIVE KERTTULA removed her objection.
Number 2643
CO-CHAIR MASEK asked if there was any further objection.
Hearing none, she announced that HB 420 was moved out of the
House Resources Standing Committee with individual
recommendations and the accompanying fiscal notes.
ADJOURNMENT
Number 2618
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:05 p.m.
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