Legislature(2001 - 2002)
04/12/2002 01:25 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
April 12, 2002
1:25 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
MEMBERS ABSENT
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mary Kapsner
Representative Beth Kerttula
COMMITTEE CALENDAR
HOUSE BILL NO. 513
"An Act relating to issuance of permits for aquatic farming of
shellfish."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 513
SHORT TITLE:SHELLFISH FARMING
SPONSOR(S): RLS BY REQUEST OF ECONOMIC DEVEL, TRADE, & TOURISM
Jrn-Date Jrn-Page Action
04/01/02 2740 (H) READ THE FIRST TIME -
REFERRALS
04/01/02 2740 (H) RES
04/01/02 2740 (H) REFERRED TO RESOURCES
04/12/02 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
PAUL FUHS
1635 Sitka, Number 301
Anchorage, Alaska 99501
POSITION STATEMENT: Provided background information relating to
CSHB 513, Version J, and answered technical questions.
GARY ZAUGG
(No address provided)
POSITION STATEMENT: Testified on HB 513 as a geoduck farmer and
a permittee for subtidal, on-bottom geoduck mariculture; said
that as a farmer, he can accept the provisions in Version J.
SCOTT THOMAS (ph)
(No address provided)
Ketchikan, Alaska
POSITION STATEMENT: Testified that HB 513 is a good thing and
represents the coming together of all the parties.
PAUL SEATON
58395 Bruce Street
Homer, Alaska 99603
POSITION STATEMENT: Testified on HB 513, saying the change
replacing "shellfish" with "geoduck clams" [Amendment 1 to
Version J] addresses his concerns; suggested a change to
subsection (e) on page 2.
NANCY HILLSTRAND
P.O. Box 170
Homer, Alaska 99603
POSITION STATEMENT: Testified in opposition to HB 513;
suggested the need to spend more time on it, and said it gives a
special privilege on public land without an open public process.
JULIE DECKER, Executive Director
Southeast Alaska Dive Fisheries Association (SARDFA)
P.O. Box 2138
Wrangell, Alaska 99929
POSITION STATEMENT: Testified on HB 513.
DAVID OTNESS
P.O. Box 633
Seward, Alaska 99664
POSITION STATEMENT: Testified that HB 513 is one of the most
viable things he has ever seen come down the pike.
DOUG MECUM, Director
Division of Commercial Fisheries
Alaska Department of Fish and Game (ADF&G)
P.O. Box 25526
Juneau, Alaska 99802-5526
POSITION STATEMENT: Testified on HB 513; expressed support for
the economic opportunity that mariculture presents, but said
[Version J] doesn't address his concerns about sustained yield;
suggested additional language is needed in Title 38 specific to
the bonding issue.
ACTION NARRATIVE
TAPE 02-29, SIDE A
Number 0001
CO-CHAIR DREW SCALZI called the House Resources Standing
Committee meeting to order at 1:25 p.m. [stated as 1:12 p.m.].
Representatives Scalzi, Masek, McGuire, Chenault, and Stevens
were present at the call to order.
HB 513-SHELLFISH FARMING
[Contains discussion of HB 208]
CO-CHAIR SCALZI announced that the committee would hear HOUSE
BILL NO. 513, "An Act relating to issuance of permits for
aquatic farming of shellfish."
Number 0042
REPRESENTATIVE STEVENS moved to adopt the proposed committee
substitute (CS), version 22-LS168\J, Utermohle, 4/12/02, as a
work draft. There being no objection, Version J was before the
committee.
Number 0075
REPRESENTATIVE McGUIRE presented the bill, speaking as chair of
the House Special Committee on Economic Development, Trade and
Tourism, which had requested that the House Rules Standing
Committee sponsor HB 513. She offered her belief that shellfish
mariculture presents a major development opportunity for Alaska
and its communities, especially Southeast communities that have
suffered because of the decline of the timber industry and even
the fishing industry. Saying there was a clear intent to
support the development of mariculture when the legislature
enacted the limited entry constitutional amendment adopted by a
wide margin of Alaskan voters in 1972, she paraphrased Article
VIII, Section 15, of Alaska's constitution, which states:
No exclusive right or special privilege of fishery
shall be created or authorized in the natural waters
of the State. This section does not restrict the
power of the State to limit entry into any fishery for
purposes of resource conservation, to prevent economic
distress among fishermen and those dependent upon them
for a livelihood and to promote the efficient
development of aquaculture in the State.
REPRESENTATIVE McGUIRE characterized the bill as a compromise
between the "common property" issue and the current limited
entry provision in the constitution. Indicating Co-Chair Scalzi
had also taken part in a meeting with the department, she
conveyed her belief that some of the problems that were
initially brought up had been addressed.
REPRESENTATIVE McGUIRE explained that for aquaculture farmers
who want to develop a geoduck farm, there are two separate
scenarios. First, there are sites with few or no geoducks;
there was agreement that those sites present no problem
whatsoever. The bill would allow permittees who had applied in
the past but were rejected based on technicalities to receive
permits and begin to actively farm and develop a geoduck
industry in Alaska. She cited British Columbia and Washington
State as two places that have been successful in this regard.
Number 0382
REPRESENTATIVE McGUIRE reported that the area of controversy and
the issues involving the constitution relate to the second
scenario, sites with an existing biomass of geoducks. She
explained:
The ... initial work draft that we proposed would have
allowed for an open season, if you will, for any other
commercial users to come into that site, commercial,
sport, or otherwise - all the users that are
recognized in the constitution - ... for a period of
time and remove all of the geoducks ... they could
during that period of time. We had some pretty
lengthy discussion about whether or not that time
period was ... broad enough, whether or not there
could be some emergency situations that arise - for
example, a PCP [paralytic shellfish poisoning]
outbreak or things like that; we've tried to address
that.
Number 0491
REPRESENTATIVE McGUIRE addressed concern that somehow the rights
to the state's common resource would be handed over to one
individual for exclusive use. Under [Version J] the farmer of a
site with biomass can harvest no more than 20 percent of the
biomass at the site, but then is required to show the Alaska
Department of Fish and Game (ADF&G) that the farmer has
replanted the area with brood stock and that the animals are
surviving there, before being allowed to harvest another
percentage.
MS. McGUIRE called this new approach a way to experiment and "a
conservative way of beginning a geoduck industry." Addressing
why the bill doesn't allow geoduck farms only where there are no
geoducks whatsoever, she remarked, "I think there are some
people who are going to experiment about that." In response to
a question, she explained that a geoduck is a type of clam;
coveted in Asia, they are marketed in Japan for medicinal and
health-related properties.
Number 0663
REPRESENTATIVE McGUIRE noted that the geoduck industry now is
primarily a dive fishery, the exception being that a couple of
people recently were granted permit rights, one of whom had
provided a letter in support [of the bill]. She highlighted the
fact that "we are currently allowing people to go into sites
where there are geoducks, existing geoducks, that can be
classified as a state common resource, and we're allowing people
to harvest them." Therefore, the bill says that this is already
allowed to occur, and asserts that farmers shouldn't be treated
differently. It [would be] a clear mandate that the legislature
wants to see the development of an aquaculture industry, and it
is a conservative way of beginning it. She added her belief
that it dovetails nicely with HB 208, sponsored by
Representative Scalzi.
REPRESENTATIVE McGUIRE emphasized the need to talk more about
economic development in the state, suggesting development of
resources such as these can help solve the fiscal problems.
Noting that Paul Fuhs [who is also a lobbyist for Alaska
Trademark Shellfish and other organizations] could answer
technical questions, she explained that although not a
biologist, Mr. Fuhs has been working on this issue for at least
ten years, including working with the farmers.
Number 0867
PAUL FUHS came forward to testify, noting that this issue is
fairly complex and is the subject of a court case because of
what he called "the indeterminate nature of this issue of wild
stocks." He suggested the court suit would be dropped if the
issue is resolved through this management method, because it was
just a way to try to get a determination, since the legislature
has never given a clear definition of the phrase, "and for the
efficient development of aquaculture"; he pointed out that it is
in the section of the constitution that says there must be
public access to the resource except for limited entry fisheries
and aquaculture. Mr. Fuhs said some rulings in the superior
court were "pretty clear," including one that said, "You really
can't have commercial fishing on an aquaculture site." He
added:
The department had that as a requirement, that they
could open it up to commercial fishing later; the
court said, "No, that's really incompatible." They
also said that you can't hold back access to an area
because of a potential future fishery there. What
they were really cloudy on is ... the common property
issue, so that they said ... you couldn't grant a
permit for anything over what's significant. Well,
the department didn't really have any clear definition
on what "significant" was; that was left wide open.
So they basically said that "if there's any more than
what you'd need for brood stock, which is a very
minimal [number] of animals, we can't issue you a
permit for that site," so you'd really be restricted
to applying for sites that basically had no animals on
them.
Number 1008
MR. FUHS continued:
Well, common sense tells you that if there's a lot of
animals in an area, it's because it's good habitat.
These clams are broadcast spawners: they broadcast
their seed and they settle in areas where you can make
a living. So that's why we need to have a
determination ... on this. I think it is a good
management system. [ADF&G] raised some really valid
issues about the original idea, where we said, "Well,
let's just have the commercial divers have at it, and
then later on ... we'll turn it into a site." And
that would have become a pretty unregulated situation.
So that's why you have before you this compromise.
MR. FUHS explained how reseeding will take place and how the
department would be able to verify it:
You put a plastic pipe into the ground, and you ...
plant four of them in there or however many you want,
and then you put a screen over the top. That's to
keep ... predators from eating them, but still the
screen lets the plankton get in there. They eat
plankton; they're filter feeders. And so the
department would easily be able to go directly to
those and see if it's actually working before they
allowed another allocation.
MR. FUHS returned attention to the bill. He told members:
What the farmers are saying is that the public would
continue to have access to these sites; ... people who
want [it] for their personal use, subsistence, would
have it, and ... they'd be able to take wild stock or
farmed stock, because it's really impossible to
differentiate between the two. So we did want to be
able to ... maintain public access to it. So that is
in the bill.
Number 1148
MR. FUHS also noted that the bill says one can only apply for a
permit where there is no preexisting fishery; he said it is
restricted to sites without a commercial fishery. He
highlighted the policy issue for the committee: whether to
recognize farming as a "recognized commercial use ... of the
fish." Reiterating that the public will have continued access,
he indicated passage of this would recognize two commercial
users: the dive fishermen and those doing aquaculture.
MR. FUHS told members he would read something he believes sums
it up, "from a proposal by the divers and Department of Fish and
Game to go in an reseed areas that they have already depleted,
and, as Representative McGuire said, they tend to clump up in
dense pockets, so that's where the divers go." He said some of
these areas have been depleted down to 20 percent of the
original resource, "so they want to go back in and seed it,
which we kind of look at as like mariculture; that's what we're
talking about." He then read:
This enhancement project could help rebuild the
bridges burned [during] the 1999 aquatic farm opening
between commercial divers and aquatic farmers
proposing geoduck culture. The different industries
are, in fact, complementary. Aquatic farms will have
product for sale year-round and will be able to
establish strong markets. Commercial divers only have
product for sale a few days each year when [ADF&G]
opens a commercial dive fishery.
If co-ops are ... formed, farmers and divers will
benefit from shared markets, shared paralytic
shellfish poisoning testing, shared processing and
transportation, shared technology, and the probability
of reducing the cost of seed through bulk purchases.
Aquatic farms will be able to employ commercial divers
between fisheries openings and, additionally, divers
will be able to work with the department to dive when
PSP levels are low, as indicated by ... PSP testing
occurring on aquatic farms. When [geoducks] are
shipped whole instead of gutted, there is an
exponential increase in the product value.
MR. FUHS said divers don't get a very high price now because
they must send the product to Palmer for testing, where it is
ground up and fed to mice. He added, "If they keel over, they
say, 'You've got to completely cook them; you can't sell them
fresh.'" With the farms, however, there would be continuous
testing. He said divers get 75 cents a pound, whereas
[geoducks] would sell live for $8 to $10 a pound.
Number 1326
REPRESENTATIVE STEVENS noted that the bill would apply statewide
and isn't specific to geoducks.
MR. FUHS responded by pointing out an error in the bill. He
said the original request to the drafters was that the bill say
"only subtidal species". Indicating the department had been
consulted, he proposed replacing the word "shellfish", wherever
it occurs, with "geoduck clams". He explained:
That's really the problem we're trying to solve. For
the intertidal species like littleneck clams, the
department seems to have developed a way to allow a
commercial fishery and then transfer the site to the
farmer. ... So wherever you see "shellfish" in here,
if you put "geoduck clams", ... it's not going to
spill over - because as it's written now, it's going
to apply to shrimp, crab, any other kind of shellfish,
and that's not the intention.
Number 1426
REPRESENTATIVE McGUIRE offered conceptual Amendment 1, to
substitute "geoduck clams" wherever the bill says "shellfish".
[No objection was stated, and conceptual Amendment 1 was treated
as adopted.]
REPRESENTATIVE McGUIRE asked Mr. Fuhs to inform the committee of
what has happened with littleneck clams and what the department
has done to facilitate that industry.
MR. FUHS replied that on littleneck clam farms, "they allow a
period of a commercial fishery on there; it's not a limited
entry fishery, but anybody can go in and harvest them
commercially." He added:
After they harvest those, then the site is turned over
to the farmer for ... further cultivation, and as the
small ones that are left grow up, those really are
turned over to the farmers. So it's essentially what
we're talking about here that's been worked out for
littleneck clams, but it's just a little different
because the full public gets access to that, not a
limited number of divers.
Number 1488
REPRESENTATIVE STEVENS asked, "If someone has permission to
harvest, they don't get permission again next year until they
have reseeded. Is ... that the only basis for denying someone
permission, and how can we be sure that, in fact, it will be
reseeded? ... What if somebody doesn't come back the next year -
they just take the product and disappear?"
MR. FUHS replied that the Department of Natural Resources (DNR)
and ADF&G have always required that a bond be posted, so that if
someone goes bankrupt or leaves, there is money to take care of
it. "And we've always agreed to that," he added.
REPRESENTATIVE STEVENS asked whether there will be a bond or
some such [protection], then.
MR. FUHS said yes.
Number 1557
CO-CHAIR SCALZI requested clarification. As for someone's
ability to take [up to 20 percent of the geoduck clams on those
sites that already have geoducks], he asked, "Is that with a
common-property opening that you're talking about?"
MR. FUHS answered:
No, that's just really for the farmer. And the
problem is ... that originally, when we looked at 100
percent, it's reasonable to go in and have ... a
commercial dive fishery on it, because they go in and
then they come out. If you're just taking pieces of
it and then having a dive fishery trying to come in on
top of it, people setting anchors, dragging anchors,
... digging up the areas next to it -- and that's why
we thought it was practical in the first place. But
if they're going to this more-managed type of a
situation, it really doesn't lend itself to a
commercial fishery.
CO-CHAIR SCALZI said he'd thought the first impetus was, similar
to what occurs for littleneck clams, to "open up a certain area
for 'common property' and commercial, and then have that area be
allowed for farming."
MR. FUHS said that was the original concept, but for
littlenecks, 100 percent of legal-sized clams are allowed to be
taken. The objection of the department was that doing so [for
geoducks] could destroy the resource or do major damage to it.
CO-CHAIR SCALZI offered his understanding, then, that now it is
just the 20-percent harvest of those sites, but it is only to be
taken by the farmer.
REPRESENTATIVE McGUIRE mentioned personal and subsistence use.
MR. FUHS responded, "Well, and/or in addition to personal use by
people, but not other commercial use."
CO-CHAIR SCALZI said that except for subsistence or personal
use, then, "which you have to access through diving anyway,"
that would be exclusive to the farmer.
MR. FUHS replied in the affirmative.
Number 1691
CO-CHAIR SCALZI suggested the checks and balances would be that
DNR or somebody would have to assess the site later to ensure
that just 20 percent was taken. He asked, "Is that in
perpetuity on that site, or is there a time limit when the ...
farmers would be able to take more than the 20 percent?"
MR. FUHS responded, "The way that this is set up, ... if you
don't meet the department's requirement that you have reseeded
the site and that you've restored that population, you don't get
the next 20 percent."
CO-CHAIR SCALZI asked whether someone else could get the next 20
percent, then.
MR. FUHS replied, "The farmer would get the next 20 percent
after showing that they had successfully reseeded that area."
CO-CHAIR SCALZI suggested it is 100 percent over a period of
time, then, that the farmer could take those [if able to
demonstrate successful replacement of the resource]. He also
sought clarification about the meaning of "preexisting fishery"
and the reason this uses sites on which there has been no
commercial dive fishery.
MR. FUHS answered:
We didn't want to go into sites that the divers were
working on. ... It's really incompatible to have a
farm site and a dive site. So if ... the fishermen
haven't been fishing on it and it's not being used,
that's why we're just trying to take up what's not
being used. We'd really create a conflict if we went
in to say we want to ... take an existing diving site.
CO-CHAIR SCALZI offered his understanding, however, that when
there is an existing site for a geoduck harvest, "they take
pretty much everything there because it's very obtrusive" and
that "after the divers go through, there isn't anything left
there."
MR. FUHS said there still are some, an estimated 10 to 20
percent. "You just can't find them all," he said. "And there's
smaller ones in there that come back. So ... you can't actually
ever take 100 percent."
CO-CHAIR SCALZI asked about the age at which [geoducks] are
harvested compared with littleneck clams.
MR. FUHS said he didn't know about littleneck clams, but
geoducks [are harvestable] at between five and seven years. He
added, "That's why we figured 20 percent. You've got a kind of
rotation. The ones that you plant in the first year will be
ready about five years out, ... and then you should be able to
have continuous ... harvests coming online to maturity." In
response to Co-Chair Scalzi, he said the average age of geoducks
is about thirty years. He also said shellfish tend to grow a
little faster in Alaska, as seen in other species, because of
the higher plankton count. Adding that the cost of "the surveys
and everything" will be borne entirely by the farmer, Mr. Fuhs
remarked, "We're also agreeing to that. So we're not asking for
general fund money or anything to fund this; we'll pay all the
costs of it."
Number 1931
GARY ZAUGG testified via teleconference. First reading from his
written testimony submitted to the committee, he informed
members that he is a geoduck farmer residing in Ketchikan; as of
yesterday, he is also the first person in Alaska to be permitted
for subtidal, on-bottom geoduck mariculture. He thanked
Representatives McGuire and Scalzi for attention to this issue,
suggesting that introduction of this legislation validates "our
rights as a user group" of this resource.
MR. ZAUGG said developing a framework for managing the "natural
set stocks inside the boundaries of an approved mariculture
site" is the issue at hand for the on-bottom mariculture
industry. He noted that he'd been advised recently by ADF&G of
management concerns with the original bill; he offered his
understanding that ADF&G believes allowing "a depletion harvest
- limited entry fisheries - followed by a mariculture lease
allowing additional utilization of the remaining stocks, would
not be an effective management tool for the protection of the
resource, the concern being that, over time, people could use
the mariculture leases to access natural set stocks and harvest
them without any positive control by the ADF&G." Mr. Zaugg
highlighted the validity of the point that ADF&G needs the
ability to maintain control of these sites in order to ensure
protection of the resource.
Number 2054
MR. ZAUGG told members:
The question then becomes what type of management
situation needs to be created that gives ADF&G the
latitude it needs to promote the efficient development
of aquaculture in this state while maintaining a
sustainable utilization of the existing resource
within the boundaries of a mariculture lease. That
system should promote the development of the industry
and protect the resource itself for the future
generations. ...
The answer in my mind has always been the concept of
"utilize and replace." It was the basis for my 1999
application, and today remains the obvious answer to
the ADF&G's concerns. As an industry, we have the
unique ability to propose creating a system of
controlled utilization of the resource, coupled with a
verifiable replacement program. The details of that
system are being proposed here today, and, I think,
should satisfy the ADF&G's concerns over managing the
sustainability of the resource. That is, of course,
only if you agree that shellfish mariculture
leaseholders constitute a user group that has the
right to propose a commercial use of the resource
inside the boundaries of the leased area.
I support the development of this legislation. And as
a farmer, I can accept provisions being proposed today
in the committee substitute, and will continue to work
hard to develop a sustainable and fair program for
this industry as well as the other users.
Number 2204
MR. ZAUGG addressed the issue of [harvesting] 20 percent a year
and then reseeding through having a "verifiable reseeding
policy". He asked whether that means that after five years the
ability to only harvest 20 percent at a time would be changed,
and whether there would be more latitude to possibly harvest
more if it turns that growth rates are faster, for example. In
response to Co-Chair Scalzi, he added that if 20 percent were
taken of the stock from an area, and if it were a five-acre site
divided into one-acre units, he believes that the reseeding
would be at a substantially higher density than that for the
initial 20 percent. He offered his understanding that the
concern of [ADF&G] has "always been the access for the initial
removal of the resource, and then making sure that you had 100
percent of the initial volume there at the termination of the
lease, in order to ... protect the common-property resource.
So, technically, within two years of harvesting two sets of 20
percent, you could have probably doubled the population on that
particular area."
CO-CHAIR SCALZI asked about fairness and whether Mr. Zaugg
believes the 20 percent would be in perpetuity. Or would he
demand a higher percentage after being the one who reseeded and
who had exclusive rights to a particular farm site?
MR. ZAUGG indicated it is up to the legislature, but again
suggested that after the initial cycle, [the farmer] would be
maintaining a biomass higher than the initial one.
Number 2383
REPRESENTATIVE McGUIRE emphasized her desire to stick with 20
percent, which she believed to be a "conservative estimate."
She added, "I feel comfortable with the 20 percent because it
allows us to protect the resource and ensure that it's being
replanted year after year after year." She suggested perhaps it
could be revisited by a future legislature if the industry
develops as she hopes it will.
Number 2419
MR. ZAUGG, in response to a request for details on how his
operation works, explained:
I just received an operational permit yesterday from
[ADF&G], so I haven't actually started yet. There's a
group of us down here that have put together a
program, all of us individuals with individual sites,
with the expertise for our group coming out of a farm
that's currently in Washington in terms of the
techniques on how to plant, ... and they're going to
be coming up and helping us with those techniques ...
as we move forward here in the next couple of weeks.
... As far as marketing goes, I've been licensed since
the early '90s and have dealt with the commercial
geoduck fisheries in terms of processing and
marketing. And if I had more time, I could explain
... how the marketing works, but ... we're very
involved in all of that.
REPRESENTATIVE STEVENS surmised, then, that there is no market
shortage.
Number 2520
SCOTT THOMAS (ph) testified via teleconference. He explained
that he was part of group of former fishermen - "friends of mine
and a couple of investors" - who in 1993 formed a company called
Alaska Trademark Shellfish specifically to develop shellfish
aquaculture in Alaska, with the emphasis being on-bottom geoduck
clams, "which represents probably about 80 percent of our
proposed production, if and when we get into business."
MR. THOMAS offered his belief that this bill represents a coming
together of all the parties and a laying down of swords, because
it puts the focus where it needs to be, on sustainability and
perpetuation of the species. Previously, he indicated, people
were caught up in who profits from the existing standing stock
and resource, taking focus from what he considers the real
issue. He told members:
If a guy's going to use the aquatic farm Act to strip-
mine resource, ... we have always said that we don't
want to be involved in that. Our intentions ... are
honorable. We've ... done a tremendous amount of
work; we've done a tremendous amount of research.
We've had Alaska Science and Technology Foundation
[ASTF] grants. We've studied what they've ... done in
Washington and in Canada. And the ASTF grant, ... we
spent two years developing brood stock, ... bringing
brood to the hatchery and they would spawn ... the
brood. And now they have juvenile geoduck clams
available.
Number 2629
MR. THOMAS remarked that the bill holds "our feet to the fire"
with regard to sustainability and perpetuation of the species.
It gives farmers the chance to utilize 20 percent of the
resource, but requires replanting it. He told members, "We
don't want anybody else coming here ... and abusing or misusing
the program. So I think this really represents a coming
together and addresses the real issue." Acknowledging
controversy over finfish farming, he nevertheless pointed out
that it provides a year-round product, maximizes value, and
allows a consistent size.
MR. THOMAS told the committee there is a tremendous market for
[geoducks] and that there is no comparison between the current
utilization and value obtained from the "capture fishery" -
which this year saw an average ex-vessel price of 80 cents a
pound - and an aquatic-farming scenario under which he believes
the value would rise tremendously because there will be
"positive control," ongoing monitoring, and good historical data
on PSP, for example. He surmised that the same people who have
resisted efforts to develop [geoduck] farms will, in three or
four years, be some of the biggest advocates. "We just need a
chance to make this program work," he said.
MR. THOMAS noted that he fished commercially since he was 14
years old, and got out of the Southeast seine business three
years ago to get into this business because he has seen what
aquatic farming has done around the world. He said:
We need to participate in these industries. And if we
can't work these issues out, then ... we're going to
miss this train. I think we're way behind the curve
right now, as it is, with on-bottom aquaculture. I've
been to Washington. I've seen these farms. I see
what they're doing. They're working, and they can
work here. And there's some good people in this state
with "Alaska ability to get it done." And one of the
big things is, we have this hatchery. The state spent
two and a half million dollars on this world-class
shellfish hatchery in Seward, and we need to start
utilizing this thing. I mean, these folks have seed
up there that they can't sell to these farms.
MR. THOMAS concluded by saying he thinks the bill is a good
thing, and that "we're coming together here."
Number 2780
PAUL SEATON testified via teleconference, informing members that
he'd been concerned the bill would overturn the local public
process to determine that shore leases were not appropriate for
critical habitat in Kachemak Bay; however, the change [through
Amendment 1] replacing "shellfish" with "geoduck clams" takes
care of his concern.
MR. SEATON called attention to page 2, subsection (e), where it
says "20 percent of the biomass"; he said there is some question
whether it might be better to say "20 percent of the area",
because biomass would be a changing figure. "It's not
harvestable biomass," he explained. "It's total biomass that,
when you get reseeding, ... what's the calculation going to be
[and] how it's going to be done?" He suggested it would be more
of a problem to administer, for example, if it were 20 percent
of the biomass instead of 20 percent of the area.
CO-CHAIR SCALZI said that would be considered and that it was a
good point because 20 percent of the area is easier to discern.
He added, "From what I understand, you pretty much take them all
when you harvest."
Number 2895
NANCY HILLSTRAND testified via teleconference in opposition to
the bill, noting that she'd also had a problem with using the
word "shellfish". She remarked that with a right comes a
responsibility, including a responsibility to the common
property resource and to allow [ADF&G] to "uphold sustainability
of interrelating fish and wildlife species, because it's very
complex." She suggested the need to spend more time on the
bill. Most important, she said, is the responsibility to not
allow [legislation for] special interests; however, this gives a
special privilege on public land but without an open public
process.
MS. HILLSTRAND, a fish culturist for 22 years, said she has seen
what happens behind the scenes in the business. She pointed out
that with mariculture there are problems worldwide with disease,
predator control, genetics, and so forth when there isn't
oversight. She noted that commercial processors have to go
through a multitude of permits and overlapping regulations.
[Not on tape, but taken from the Gavel to Gavel recording on the
Internet, is that she believes regulation and the whole process
are healthy, and that there is a need to make sure this is open
so that people have a chance to talk about it.]
TAPE 02-29, SIDE B
Number 2980
MS. HILLSTRAND conveyed concern about the speed with which this
happening for people in Southeast Alaska. She concluded by
saying she doesn't think it is a good idea.
Number 2962
JULIE DECKER, Executive Director, Southeast Alaska Dive
Fisheries Association (SARDFA), testified via teleconference,
noting that SARDFA has been involved in the aquatic-farming
discussion since the 1999 application period when the first
geoduck-farm applications were submitted. She said SARDFA has a
large interest in aquatic farming; in fact, three out of eight
of SARDFA's current board members are geoduck-farm applicants.
Furthermore, aquatic farming also holds potential for underwater
harvesters in Southeast communities who are looking for more
economic opportunities like these.
MS. DECKER expressed appreciation for the efforts of Mr. Fuhs to
come up with a compromise that will "pull the 1999 geoduck-farm
applications out of court and get us all out working again."
She said although the SARDFA board didn't support the original
HB 513, the board hasn't seen the latest proposed CS
[Version J].
Number 2908
MS. DECKER drew attention to Section 1, subsection (d), and
suggested further definition is needed for the phrase, "site
where no preexisting commercial fishery occurs". She offered an
example that she said isn't well defined by that language:
SARDFA has been working along with [ADF&G] on developing and
expanding the geoduck fishery into new areas; the industry has
been conducting reconnaissance surveys, and [ADF&G] has been
conducting biomass surveys that follow the industry's surveying.
This has been funded through a combination of voluntary industry
surveying, voluntary and mandatory industry taxes, and federal
and nearshore-fisheries research funds. Although these newly
surveyed areas haven't yet been fished commercially, much effort
has been put forward [by] the industry and [ADF&G] to eventually
open these areas for commercial fishing.
MS. DECKER also called attention to Section 1. With regard to
subsection (d)(2), she said SARDFA has expressed support in the
past for this general concept of requiring [ADF&G] to conduct a
biomass survey and having that paid for by the farm applicant;
therefore, [SARDFA] is in support of that. With regard to
Subsection 1, subsection (f), she asked what the consequences
will be if a farmer doesn't restore a bed of potentially 400,000
pounds of geoducks to its original population. Noting that
testimony had indicated a bond would be posted through DNR, she
asked whether that bond would "range" and "go higher for the
higher amount of resource that might be there."
Number 2825
MS. DECKER conveyed concern about what happens to other species
on the farm sites; she mentioned limited entry fisheries such as
for sea cucumbers, and unlimited fisheries such as for "horse
clams" that might also be on the farm site. She noted that the
fishery for horse clams, although not currently "online," is one
SARDFA is trying to develop through funding research to survey
areas and so forth. Horse clams and geoducks often inhabit
similar areas and overlap; in fact, in [British Columbia] the
geoduck permit is actually a geoduck/horse clam permit.
Number 2767
MS. DECKER clarified that the commercial divers take 2 percent
per year of the existing biomass, as required by a Board of
Fisheries management plan on geoducks. She also pointed out
that in Washington State, geoducks are being farmed in shallow
intertidal areas where they don't naturally grow. She
explained, "So it's not necessarily true that you have to have
geoducks growing somewhere in order to successfully farm them.
What is necessary is the substrate and nutrients in the water."
MS. DECKER told the committee SARDFA is interested in reaching a
compromise to allow geoduck farming in order to then solve some
larger problems, the largest of which right now is a "PSP
protocol for live shipment" from the Department of Environmental
Conservation (DEC). She said:
With this in mind, the SARDFA board has endorsed a
compromise which it believes would satisfy most of the
current geoduck-farm litigants. The compromise is to
allow geoduck farming on sites where there is an
insignificant amount of wild stock, as Judge Thompson
ruled, and allow the farmers to harvest this
insignificant amount of wild stock so it does not
inhibit their farming activities. Several of the
current litigants do not have ... a large portion of
geoducks on their sites - wild geoducks - but they
were saying that [ADF&G] is not allowing them to
harvest those on their site, and so that poses
problems for them. We believe that this is a
compromise that would solve most of those problems.
CO-CHAIR SCALZI requested Ms. Decker's comments in writing, if
possible, saying there were some good points.
Number 2654
DAVID OTNESS testified via teleconference, noting that he
actually had wanted to comment on "the other bill being
introduced." He said:
In all my years of fishing, from the days of the fish
traps to what we're seeing now in terms of limitations
on our ability to get out and harvest commercially,
for whatever the reasons, I am just a very, very
strong proponent of the legislature's action in trying
to develop this as an alternative, especially on our
coasts, where we have very little in the way of
alternate occupations other than tourism. We've
basically developed a four-month economy that we're
supposed to sustain ourselves on, and it's not working
out. A lot of these towns are just dying on the vine.
MR. OTNESS offered thanks, especially to Representative McGuire.
He concluded, "This is one of the most viable things I've ever
seen come down the pike, and I suggest we get with it."
CO-CHAIR SCALZI invited Doug Mecum from ADF&G and Blaine Hollis
from the Department of Law to the witness stand together.
Number 2550
DOUG MECUM, Director, Division of Commercial Fisheries, Alaska
Department of Fish and Game (ADF&G), thanked Representative
McGuire and Co-Chair Scalzi for their work. He stated:
We obviously support this economic development
opportunity that mariculture represents as well. We
were very much in support of HB 208, which we think is
important legislation that would provide a jumpstart
for the mariculture industry in the state of Alaska.
But we also have been trying to support economic
development through the commercial fishery, as well,
over the course of the past ten years - that is, the
commercial geoduck dive fishery. And, in large part,
these are sort of separate tracks, and they've been on
a collision course.
Let me just talk a little bit about how we've tried to
develop the commercial fishery. The commercial
fishery is not opened in an area unless the department
conducts a detailed and comprehensive biomass survey
of the area. So the department goes out, finds the
sites, and, as Julie Decker from SARDFA talked about,
we do that in cooperation with the industry. These
surveys are funded, in large part, by federal funds
we've been successful in obtaining over the past
several years, but also through taxes that are levied
upon the divers themselves through the Southeast
Alaska Dive Fisheries Association legislation that the
legislature passed some years ago. So the thing that
really has started the development of the commercial
fishery has been the infusion of this capital, this
investment, none of which has occurred from the
legislature, but still an investment and, in large
part, an investment by the divers themselves.
People have asked us, over the years, to open up areas
so that they could harvest these clams, providing this
economic opportunity. And the department has told
them "no," this is the commercial fishermen; "no"
until we have ... adequate funds for monitoring and
management; and "no" until we can ensure the sustained
yield in the management of these resources. They
bought into that, and the legislature bought into that
when they adopted the SARDFA legislation.
So once we got this money online, we started to move
into other areas. I guess we could have just as
easily said, "The whole districts 1 through 14 are
open; go out there and harvest." And those areas
would all be now open to commercial fishing. We did
not do that. We wanted to make sure we were doing it
in a sustainable fashion. ...
Four years ago, we were approached by people wanting
to start farming geoducks. And the biggest problem
that we ran into there was this sort of appropriation
of the common property resource for private
individuals, and we still struggle ... with that
issue.
MR. MECUM returned attention to [Version J], saying he still
personally had some concerns about the constitutionality. He
explained, "It would, in effect, appropriate a public resource
and transfer ownership of those resources to a private
individual for the purposes of financing their farm operations,
for economic opportunity. I don't have a personal problem with
it; I just think there's a legal problem with it."
Number 2350
MR. MECUM expressed appreciation for the attempt to deal with
sustained yield by only allowing a harvest of 20 percent until
[successful] seeding is documented and demonstrated. He offered
his belief, however, that it doesn't go far enough. He
explained:
In essence, what you have here is that in 5 years all
of the naturally occurring geoduck stocks would be
gone. And, as was stated in some of the earlier
testimony, these are animals that, on average in the
commercial fishery, are 30 years old, and they range
upwards of 150 years old. And I don't believe that,
..., just by the simple fact of getting spat from the
hatchery and putting a plastic tube down and putting
four spat in there, you've demonstrated that you're
capable of restoring the stocks back to their original
condition. I don't believe that it does address the
sustained yield questions and concerns that I have.
MR. MECUM noted that he'd only seen [Version J] about 30 minutes
before this hearing began and said:
Off the top of my head, I would say something that
would actually be more conservative with respect to
sustained yield would be perhaps some period of growth
would occur and then you would say, "Yes, in fact they
are growing and have become established in this area,"
not just the fact that you've seeded them. So, as was
stated in earlier testimony, we think it's probably
around seven years. We've never farmed geoducks in
Alaska, so we don't know. But from what we know about
what's happened elsewhere, perhaps seven years, maybe
as soon as five, but ... probably seven years before
you'd actually have a geoduck raised up to what would
be a marketable size.
So all I'm saying is, I don't believe one calendar
year provides me with the kind of comfort that I would
need to have to ensure that, in fact, sustained yield
would be possible through this approach, because, as
[Co-Chair] Scalzi said, I think this is essentially
adopting a 20-percent-harvest-rate approach, whereas
in a commercial fishery we believe a 2-percent harvest
rate is sustainable. And the 20-percent-harvest-rate
sustainability is all premised on seeding, which may
or may not work. I certainly hope it does, because we
are permitting geoduck-farming sites in some areas,
... but it's not been proven. So that's a concern of
mine.
MR. MECUM offered that changing the language [through
Amendment 1] to address just geoducks rather than all shellfish
is a good idea. Acknowledging that DNR would be better suited
to address the issue, he also related his belief that the
restoration bonds that exist in statute deal "just with sort of
the cleanup of the site" if someone has a lease, making sure
that structures are removed and that net pens and so forth are
taken care of. However, they wouldn't deal with issues of
either the value of the standing stocks being removed or the
sustainability.
MR. MECUM therefore suggested the need for additional statutory
language in Title 38 to deal specifically with that, and that
the legislature would need to decide whether that bonding
requirement "went to the value of the resource or went with
seeding and restoration costs of the resource, or both, and
whether that bonding value that's in that bond deals with just
the current value of the resource - what that value's based on -
and whether there's any ... value in perpetuity that you [might]
consider." He emphasized the need to flesh that out.
Number 2170
REPRESENTATIVE STEVENS asked about the size of the resource
currently, and how the size of a site is established.
MR. MECUM replied:
As far as the total population or biomass of geoducks
in Southeast Alaska, I don't think we know. We
haven't surveyed all areas yet; we're still doing
that. It's probably over ... 10 million pounds, at
least. And I think one of ... the sites that was in
... not this last application period but the period
before sought to gain title to somewhere around half a
million pounds in one area. ...
Geoducks are ... not widely distributed in Southeast
Alaska. Southeast Alaska ... is pushing on the
northern extremes of the range of the species.
Geoducks are much more abundant as you go further
south; the epicenter of production is ... somewhere in
British Columbia. So we don't have very large
populations up here. Recruitment is very sporadic and
infrequent, and they exist in isolated pockets [and]
beds in various areas around Southeast Alaska, in
areas of particular types of substrate, that is,
primarily sandy bottoms.
And as far as the site question, you're talking about
... how the mariculture sites would be determined.
The way that ... HB 208 envisions these areas' being
determined is that the department, the agencies, would
go out and find areas that are, quote, unquote,
"suitable for mariculture." The way that the current
process works is that individuals apply for specific
sites, and HB 513, as far as I can tell, ... would
fall under the existing process. So, in that case,
the applicants would be determining where these
harvests are occurring; it's not the department.
Number 2036
REPRESENTATIVE STEVENS referred to Ms. Decker's concerns about
impacts on other species on the sites. He asked whether that is
a concern of Mr. Mecum as well.
MR. MECUM answered:
Well, there could be some impacts on other species,
but one could argue that there could be impacts on
other species in the commercial fishery as well. I
guess it would depend upon a case-by-case evaluation
of each site. I really couldn't answer that in a
general sense.
Number 2003
REPRESENTATIVE McGUIRE expressed appreciation for Mr. Mecum's
hard work on this issue. She referred to testimony suggesting
perhaps it would be better to allocate 20 percent of an area
rather than 20 percent of the biomass. She expressed concern
that if someone picks [the area] that has 80 percent of the
biomass on the site, that wouldn't be good management of the
resource. She asked for Mr. Mecum's thinking on this.
MR. MECUM concurred that it is a big problem with the area
concept, noting that 20 percent of the area could be 100 percent
of the [biomass].
REPRESENTATIVE McGUIRE addressed the constitutionality, offering
her own understanding with regard to sustained yield that these
farmers will be [remunerating] the state by replanting the seed
stock. She said:
Now, your idea about adding in a provision, perhaps a
delayed number of years to see that that growth
occurs, I'm ... not necessarily saying is a bad idea;
that might be something that we could incorporate in.
... We do it with other resources in the state, and we
are a resource-based state, and we admit that right
away. We have common property. And that's why that
amendment to the constitution that was passed by ... a
wide range of voters on limited entry was such an
issue. There were people at that time that said,
"Wait a second. ... Why should certain individuals be
given an exclusive right to go into any fishery and
access that for their money, for their wealth?" And
... you touched upon that briefly.
Certainly, the farmers would be using some of the
profits to offset the cost of their brood stock. But
it seems to me we've already addressed that ...
through the constitution. And I agree with you that
the original draft of the bill had constitutional
problems, but I really, firmly believe ... that by
controlling it at 20 percent and saying you're going
to put back -- in fact, if anything, I think it's
requiring a higher threshold than we do in other
limited entry situations. Certainly, we give leases
to limited entry, and we don't ask them to replenish
the resource, ever. In this case, we're going above
and beyond and saying, ... "We're really going to
satisfy sustained yield; we're going to put it right
back ... into the ground, so to speak."
REPRESENTATIVE McGUIRE asked to hear more on Mr. Mecum's train
of logic on that.
Number 1830
MR. MECUM replied:
Obviously, there's some interpretation that has to
occur here relative to the tension between the
constitution and what is ... too exclusive and what
isn't. I think you'd agree that one is pretty
exclusive. The limited entry program has come under
challenge before. It's been shown to be
constitutional, but it's been pretty clear from the
decisions that have been reached that anytime you
start getting too exclusive and too small of a class,
the court has thrown that out. And I guess that's
about as far as I can go with it, because the reality
is that this specific issue - Mr. Fuhs is correct and
you're correct - ... has not been litigated; it has
not been decided by a court what that provision means
specifically. And this specific issue of transferring
ownership to one individual for private ownership ...
has not been tested, as far as I know.
REPRESENTATIVE McGUIRE responded:
You're representing it as transferring it to one
individual for private ownership, and I want to take
issue with that, to make sure that the committee isn't
confused by that, because that's not what's happening
here. What you're doing is, you're giving a lease,
much like we do for oil leases or limited entry
permits. You're giving an opportunity for an
individual Alaskan to access the resource for personal
gain. And we do it all the time. What you're not
doing is transferring permanent title of a common
resource of the state to an individual. ...
The second thing is, we are saying, in perpetuity,
that so long as this lease is in existence, you can
access it for personal use, for subsistence use, for
all those things. And it's the same thing that we do
in the commercial ... fishing industry. We say, "You,
... Representative Stevens, have a commercial ...
limited entry permit," but we don't say, "You, village
of wherever, do not have access to, then, go in and
fish," or, "You, personal sport fisher that wants to
put fish in your freezer, do not have access." We
have a history in this state already, through the
limited entry provision in the constitution, of
balancing user groups. And I want to make that clear
on the record, that that's something that I considered
very thoroughly ... in doing this bill.
So what we are saying, though, is that we have user
groups out there, and if you want to have all the
commercial users come in, that's probably going to be
too much pressure.
REPRESENTATIVE McGUIRE, on another issue, said:
Don't you think that it matters that in the
constitutional provision it was specifically stated
"and to promote the efficient development of
aquaculture in the State"? And even though it hasn't
been interpreted, there's a statement made. And
that's one of the things when you go down in a court
case: if the legislature says it and touches on it,
there was clearly an intent for that to be a part of
it. ... How do you respond to that part of it?
Number 1654
MR. MECUM responded:
I guess, from my perspective, if this specific sort of
a practice had been envisioned by the legislature, by
that statement, then, I think they would have
developed the statutory framework, and the legal and
regulatory framework would have been built around that
to allow it to occur.
REPRESENTATIVE McGUIRE replied by citing the aquatic farm Act,
but noted that she and Mr. Mecum disagree what the intent of
that Act is. She added, "After the constitutional amendment
passed, another legislature came in and said, 'Not only is it in
the constitution, but now we have the aquatic farming Act, which
allows for permits and allows for ... the development of this
industry. That's kind of where we started on this problem."
MR. MECUM said that is a good point. He said the aquatic farm
Act that sprang from this set of laws talks about this specific
issue. He continued:
It talks about people obtaining ownership of standing
stocks, but only for the purposes of brood-stock
culture and propagation. So when the legislature did,
in fact, develop the legal and regulatory framework of
the statutory framework to implement this, they spoke
to this issue and they provided for a limited purpose.
And don't get me wrong: I don't have a problem with
somebody doing these things. ... But ... as an agency
employee, I have a responsibility to interpret ... the
existing laws and statutes, which is what we've ...
tried to do to the best of our ability.
And just one philosophical comment, and that is that
... I understand very well, and I appreciate your
comment about trying to strike a balance. I know
that's your interest, and it's my interest as well.
And we've tried, to the best of our ability, to strike
that balance, and one of the ways that we've
determined we might be able to do that - and has been
reaffirmed by the court and through a lot of public
testimony and a lot of public hearings, and even
suggested by some of the farmers themselves - is to go
to areas where there are not significant populations
of geoducks, and areas that appear to have the
suitable substrate type, [to] go to the hatchery,
purchase the seed, ... take the brood stock back,
raise the juveniles, bring them back and plant them
and farm, and reap what you sow.
And that's the balance that we've tried to strike. It
hasn't worked for everybody, has worked for some; some
people are being permitted to do this. In fact, I
believe three or four of the six applications during
this ... last application period will be approved or
are approved to do this, in this way and in this
balance that we've tried to strike. And ... the ones
that were not permitted were either in areas where
there were these abundant populations or they simply
did not respond to requests for information (indisc.)
on their permit. So those that wanted to go into
these areas to do this ... will be allowed to do it.
Number 1455
REPRESENTATIVE McGUIRE highlighted the difficulty of DNR's
ability to survey all the possible sites in the state. For
example, where would the state be if it had relied on DNR to
survey all the possible sites for oil without any effort by the
oil companies? She said although she agrees there may be the
ability to develop farms on suitable substrates with the right
amount of nutrients, she believes there is a role to play for
some sites that have existing stock, and "that farmers can go
out and use their resources and their dollars, as ... was
stated, to pay for and ... kind of help in the process."
Representative McGuire said that is the balance she is trying to
strike, and suggested that if somebody finds a site where there
happens to be existing stock, [the legislature] should try to be
visionary and see what can be done.
Number 1355
MR. MECUM responded, "I certainly agree with that provision of
the bill; I think that's a good concept, yes."
CO-CHAIR SCALZI acknowledged that gold cannot be reseeded, for
example, but asked what approach would be used for timber for
"the same type of lease of standing stocks."
MR. MECUM said he wasn't prepared to answer that, but that the
constitutional provisions governing forestry are different from
those for fisheries. For example, there is a "no exclusive
right of fishery" clause in the constitution, but no
corresponding clause for forestry. Therefore, there could be a
different determination about constitutionality.
CO-CHAIR SCALZI asked whether anyone else wished to testify;
there was no response.
Number 1252
CO-CHAIR SCALZI offered his intention of holding the bill over,
noting that some good questions had been raised. He noted that
this would set a big precedent on how mariculture is promoted,
which he certainly advocates, but suggested the need to answer
the constitutional issues. He asked Mr. Hollis of the
Department of Law to address the issue of how this relates to
timber [in the future], suggesting the need to be consistent
with the renewable-resource policies in the state. [HB 513 was
held over.]
ADJOURNMENT
Number 1133
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:35 p.m.
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