Legislature(2019 - 2020)BARNES 124
02/10/2020 01:00 PM House RESOURCES
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| HB138 | |
| Adjourn |
* first hearing in first committee of referral
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| += | HB 138 | TELECONFERENCED | |
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ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
February 10, 2020
1:37 p.m.
MEMBERS PRESENT
Representative John Lincoln, Co-Chair
Representative Geran Tarr, Co-Chair
Representative Grier Hopkins, Vice Chair
Representative Sara Hannan
Representative Chris Tuck
Representative Ivy Spohnholz
Representative Dave Talerico
Representative George Rauscher
Representative Sara Rasmussen
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 138
"An Act requiring the designation of state water as outstanding
national resource water to occur in statute; relating to
management of outstanding national resource water by the
Department of Environmental Conservation; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 138
SHORT TITLE: NATIONAL RESOURCE WATER DESIGNATION
SPONSOR(s): REPRESENTATIVE(s) KOPP
04/17/19 (H) READ THE FIRST TIME - REFERRALS
04/17/19 (H) RES, FIN
04/29/19 (H) RES AT 1:00 PM BARNES 124
04/29/19 (H) Heard & Held
04/29/19 (H) MINUTE(RES)
05/03/19 (H) RES AT 1:00 PM BARNES 124
05/03/19 (H) Heard & Held
05/03/19 (H) MINUTE(RES)
02/10/20 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
REPRESENTATIVE CHUCK KOPP
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as the sponsor of HB 138, provided
a PowerPoint presentation entitled, "HB 138 Outstanding Resource
Water Designation," dated 2/10/20, presented the committee
substitute for HB 138, and answered questions.
TREVER FULTON, Staff
Representative Chuck Kopp
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of Representative Kopp, sponsor
of HB 138, answered questions during the hearing of HB 138.
MARIE MARX, Attorney
Legislative Legal Counsel
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing of HB
138.
JONES PAUL HOTCH JR., Vice-President
Chilkat Indian Village Tribal Council
Haines, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
GUY ARCHIBALD
Juneau, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138, Version K.
KONRAD SCHAAD
Homer, Alaska
POSITION STATEMENT: Testified in strong opposition during the
hearing of HB 138.
MARIO BENASSI
Haines, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
JOE HOTCH
Haines, Alaska
POSITION STATEMENT: Testified during the hearing of HB 138.
DOUG WOODBY
Juneau, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
DAN HOTCH, Spokesperson
Chilkat Indian Village
Haines, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
DAN CANNON
Juneau, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
SKWEIT MORGAN
Juneau, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
ANDREA HERNANDEZ
Point Baker, Alaska
POSITION STATEMENT: Testified during the hearing of HB 138.
SARAH DAVIDSON
Juneau, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138, Version K.
EMILY ANDERSON, Alaska Program Director
Wild Salmon Center
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing of HB 138.
JESSICA PLACHTA, Executive Director
Lynn Canal Conservation
Haines, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
MEREDITH TRAINOR, Executive Director
Southeast Alaska Conservation Council
Juneau, Alaska
POSITION STATEMENT: Testified in opposition during the hearing
of HB 138.
ACTION NARRATIVE
1:37:55 PM
CO-CHAIR JOHN LINCOLN called the House Resources Standing
Committee meeting to order at 1:37 p.m. Representatives
Talerico, Hannan, Hopkins, Rasmussen, and Lincoln were present
at the call to order. Representatives Tarr, Tuck, Spohnholz,
and Rauscher arrived as the meeting was in progress.
HB 138-NATIONAL RESOURCE WATER DESIGNATION
1:38:30 PM
CO-CHAIR LINCOLN announced the only order of business would be
HOUSE BILL NO. 138, "An Act requiring the designation of state
water as outstanding national resource water to occur in
statute; relating to management of outstanding national resource
water by the Department of Environmental Conservation; and
providing for an effective date."
1:39:08 PM
CO-CHAIR TARR moved to adopt the committee substitute for HB
138, labeled 31-LS0811\K, Marx, 2/4/20, (Version K), as the
working document.
1:39:25 PM
CO-CHAIR LINCOLN objected for discussion purposes.
1:39:36 PM
REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, speaking as
the sponsor of HB 138, said the committee substitute for HB 138
was the result of hearing public testimony about the unmet need
for an administrative process, and a desire for a fair and
balanced approach, to Tier 3 water designation. He directed
attention to a PowerPoint presentation entitled, "HB 138
Outstanding Resource Water Designation," dated 2/10/20, in order
to review for the committee the concept of Tier 3 waters, and
the intent of the bill. He paraphrased from slide 2, which
read:
TIER 3 WATERS
? Defined by EPA as waters of "exceptional
recreational or ecological significance" which shall
be "maintained and protected" from degradation in
perpetuity
? Since 1983, the Clean Water Act has required each
state to establish a Tier 3 designation process
Alaska has yet to formalize a process
? Any water of the state (AS 46.03.900) can be
designated a Tier 3 water, regardless of ownership of
surrounding lands
? Five Tier 3 nominations (oldest dating to 2012) have
been submitted to DEC all five have been returned
and the nominators have been referred to the
legislative process, as per DEC policy
REPRESENTATIVE KOPP explained Alaska has no process for [the
designation of] Tier 3 waters, which may violate the Clean Water
Act (CWA), and thus the U.S. Environmental Protection Agency
(EPA) may impose a process on the state, leaving stakeholders in
Alaska uncertain of the process. Representative Kopp advised
any water of the state can be designated Tier 3 water; water of
the state is defined in AS 46.03.900(37) as follows:
"waters" includes lakes, bays, sounds, ponds, impounding
reservoirs, springs, wells, rivers, streams, creeks,
estuaries, marshes, inlets, straits, passages, canals, the
Pacific Ocean, Gulf of Alaska, Bering Sea, and Arctic
Ocean, in the territorial limits of the state, and all
other bodies of surface or underground water, natural or
artificial, public or private, inland or coastal, fresh or
salt, which are wholly or partially in or bordering the
state or under the jurisdiction of the state.
REPRESENTATIVE KOPP said there have been five Tier 3 water
nominations submitted to the Department of Environmental
Conservation (DEC), all which have been returned to the
nominators and referred to the legislature - as per existing DEC
guidance policy established by former DEC Commissioner Hartig -
to comply with the Alaska State Constitution, Article 8,
Sections 2 and 7, which read (slide 1):
Section 2: The legislature shall provide for the
utilization, development, and conservation of all
natural resources belonging to the State, including
land and waters, for the maximum benefit of its
people.
Section 7: The legislature may provide for the
acquisition of sites, objects, and areas of natural
beauty or of historic, cultural, recreational, or
scientific value. It may reserve them from the public
domain and provide for their administration and
preservation for the use, enjoyment, and welfare of
the people.
1:42:53 PM
REPRESENTATIVE KOPP pointed out the aforementioned sections of
the state constitution direct that the legislature has a role in
the designation process; HB 138 introduces an administrative
process compatible with the legislative process to allow Tier 3
nominations to be reviewed and concluded. He directed attention
to slide 3 and said [the intent of HB 138] - to codify the
process - is consistent with DEC's request for legislative
involvement, preceded by an administrative process.
Representative Kopp stressed the designation process of
nominating [a water body] to DEC currently does not exist [shown
incorrect on slide 3], which explains why current nominations
have been referred to the legislature [shown correct on slide
3]. At this time, 118 state lands and waters have been
designated for special use protection by the legislature
including state refuges and parks, preserves, sanctuaries,
critical habitat areas, marine parks, and recreational rivers.
Representative Kopp further explained establishing special use
protection is a policy call that does not set "too high of a bar
on anybody to carry a policy argument." Therefore, in order to
satisfy the state constitution, the legislature must find a way
to achieve a balance between administrative process and
legislative direction so that state waters are managed to the
maximum benefit of Alaskans. Slide 4 illustrated the committee
substitute for HB 138 process: codifies Tier 3 designation
process as a legislative process with an administrative element
and establishes an advisory commission to review nominations for
Tier 3 waters and make recommendations. He further explained
nominations could also be facilitated through legislation
introduced by a legislator; however, a bill introduced by a
legislator would not benefit from a science-based determination,
vetting, and recommendations from the advisory commission. In
addition, [the committee substitute for HB 138] requires the
governor to submit legislation consistent with the
recommendation of the advisory commission; this requirement was
modeled on the Controlled Substances Advisory Committee,
Department of Law.
1:47:22 PM
REPRESENTATIVE KOPP continued to slide 5 and said the proposed
Outstanding Resource Water Advisory Commission would have seven
members: the commissioners of the Department of Natural
Resources, DEC, and the Alaska Department of Fish and Game;
designated seats for a tribal entity or Native corporation,
environmental or conservation nongovernmental agency (NGO),
resource development NGO, and local government. Thus, the
advisory commission would consist of experts and members with
strong professional knowledge in order to determine whether a
nomination would be accepted for review. Turning to the
nomination, he paraphrased from slide 6, which read:
NOMINATION CRITERIA
? Description of the water
? Upstream/downstream boundaries
? Explanation of what makes it exceptional
? Description of existing water quality
? Cost-benefit analysis
REPRESENTATIVE KOPP remarked:
A cost-benefit analysis is based on policy. ... If
your policy is that whatever project is out there in
the future, whether it be a tourism project, an
industry, natural resource project, whether it be any
kind of development, is weighed against whatever we're
trying to protect or conserve, that a, some type of
cost-benefit analysis be put out there, but note that
the commission has the discretion to either ask for
more or less information. ... We do not look at this
as someone has to be a millionaire to ... put together
basically a report for the commission and, and, submit
this. I think this is a pretty low threshold for such
a significant thing ... but it is certainly not meant
to be cost prohibitive. The bill does, in its current
version, ask the nominator to bear at least this
minimal upfront cost ....
REPRESENTATIVE KOPP added the commission has one year to rule
from the time the nomination is accepted. He restated a Tier 3
designation has the highest level of water quality protection
under CWA and is an important tool to balance human
environmental health; however, the designation is a policy
decision that in the future would restrict a significant range
of activities. He concluded the committee substitute for HB 138
would create a designation process that is fair, evidence-based,
and subject to legislative approval; the bill is also a solution
between an administrative process and a political process,
fulfils the federal mandate for Tier 3 water designation, and
would give stakeholders certainty in this regard.
1:52:37 PM
CO-CHAIR TARR asked whether the nomination is accepted by the
commission when the nomination application is complete.
REPRESENTATIVE KOPP said yes. In further response to Co-Chair
Tarr, he clarified when the commission indicates the nomination
packet is complete, the one-year time period begins.
CO-CHAIR LINCOLN removed his objection. There being no further
objection, Version K was before the committee.
REPRESENTATIVE TUCK returned attention to slide 4 and asked for
confirmation that [after the passage of HB 138, Version K, a
nomination could still be advanced directly from a nominator to
the legislature].
REPRESENTATIVE KOPP said correct.
REPRESENTATIVE HOPKINS asked whether DEC can currently designate
water to [Outstanding National Resource Waters (ONRW) Tiers] 1,
2, or 3.
1:55:59 PM
TREVER FULTON, Staff, Representative Chuck Kopp, Alaska State
Legislature, informed the committee current regulations allow
DEC to designate Tier 1 and 2 waters, however, Tier 1 and Tier 2
waters are not ONRW; regarding Tier 3 waters, DEC guidance is
that nominators nominate Tier 3 waters through the legislature.
REPRESENTATIVE HOPKINS suggested if the commission approves the
nomination of a body of water to Tier 3 status, the commission
and DEC should do so without needing duplicative legislation.
REPRESENTATIVE KOPP observed water quality designations are
among the most sweeping actions taken by the state; in fact, to
not have such an action before the legislature would probably be
in violation of the state constitution. The legislature should
be provided with a professional application that has been vetted
and that has garnered science-based recommendations from a panel
of experts in order to make its decision. He restated HB 138
creates a process that would result in a nomination before the
legislature that is complete with public testimony and a
minority opinion. As the bill sponsor, he restated his support
for combining administrative and legislative processes, in order
to balance competing interests, and prevent subsequent
challenges to legislation.
REPRESENTATIVE HANNAN asked for confirmation that the current
five nominations have been offered by tribal entities.
2:00:46 PM
MR. FULTON said DEC has received the following nominations:
• Koktuli River, submitted 4/27/12, by Trout Unlimited,
Alaska Alpine Adventures, Renewable Resources Coalition,
Alaska Independent Fishermen, SnoPac Products, Nushagak-
Mulchatna Wood-Tikchik Land Trust, and Nunamta
• [Draanjik River], submitted 11/7/17, by First Chief Woody
Salmon, Chalkyitsik Village Council and First Chief Nancy
James, Gwichyaa Zhee Gwich'in Tribal Government
• Chandlar River, submitted 7/23/16, by First Chief Jerry
Frank, Venetie Village Council
• Yakutat Forelands, submitted 2/22/16, by the Yakutat
Tlingit Tribal Council
• Chilkat River, submitted 2/13/16, by the Chilkat Indian
Village
CO-CHAIR TARR directed attention to the bill on page 3, line 14,
which read [in part]:
the commission shall provide public notice and an
opportunity to comment on the nomination
CO-CHAIR TARR questioned whether the aforementioned language
means the process would include a public comment period and
public hearings.
REPRESENTATIVE KOPP confirmed the language is prescriptive thus
hearings shall be held.
REPRESENTATIVE SPOHNHOLZ inquired as to whether HB 138 would
prohibit the nomination of a Tier 3 water designation by a
citizens' initiative.
REPRESENTATIVE KOPP said no. He pointed out a prior citizens'
effort related to restrictions on natural resources was deemed
unconstitutional by the court system and deferred the question
to the Department of Law. He restated the intent of HB 138 is
strictly to establish an administrative process for designating
Tier 3 water designations.
2:04:58 PM
MARIE MARX, Attorney, Legislative Legal Counsel, Legislative
Legal Services, Legislative Affairs Agency, clarified HB 138
does not address the initiative process. She opined the
initiative process could not be used to designate water as
outstanding resource water without violating the Alaska State
Constitution, Article 11, Section 7, because initiatives cannot
make or repeal appropriations or restrict the legislature's
authority to use an asset for a public purpose.
REPRESENTATIVE TUCK asked whether any of the aforementioned 118
water designations are Tier 3.
REPRESENTATIVE KOPP said he was unaware of any Tier 3 water
designations in Alaska.
REPRESENTATIVE TUCK further asked whether EPA requirements allow
the legislature to reverse a Tier 3 designation.
MR. FULTON said the designation of a Tier 3 waterbody could be
reversed, and explained information from DEC and EPA indicated
"anything that the legislature puts into statute, it can remove
from statute, and thus undesignate."
REPRESENTATIVE TUCK surmised if the designation is DEC's role,
DEC could also reverse its decision.
MR. FULTON deferred to DEC.
MS. MARX informed the committee federal regulation and policy do
not allow or prohibit an action to reverse designation; further,
nothing in the bill prevents a future legislature from repealing
a designation. Similarly, she opined nothing would prevent DEC
from undesignating a [waterbody] as national resource water,
although EPA would address a change in policy.
2:09:33 PM
REPRESENTATIVE TUCK returned attention to slide 2 and read:
Defined by EPA as waters of exceptional recreational
or ecological significance which shall be maintained
and protected from degradation in perpetuity
REPRESENTATIVE TUCK surmised perpetuity is "as long as it's in
statute."
MS. MARX advised to designate water there would be a finding
that said certain water is of exceptional quality, which is a
very high standard, therefore, [the standing to meet] a finding
to undue the designation would also be high. She said without
case law in this regard, a court's decision is unknown.
REPRESENTATIVE RAUSCHER asked whether the legislature could go
around the [advisory commission].
REPRESENTATIVE KOPP said yes, by passing legislation.
REPRESENTATIVE HANNAN questioned how many states have adopted a
process for designation and if states that have not complied
with EPA have been litigated.
REPRESENTATIVE KOPP deferred to DEC and said he was unsure of
the policies of other states.
REPRESENTATIVE TUCK directed attention to the bill on page 2,
beginning on line 16, which read:
(D) one member who represents a statewide organization
of local governments.
REPRESENTATIVE TUCK asked what statewide organizations of local
governments exist.
REPRESENTATIVE KOPP said, in addition to the Alaska Municipal
League, there is a conference of mayors.
REPRESENTATIVE HOPKINS directed attention to page 2, lines 25-
27, which read [in part]:
(e) The commission shall
(1) establish a process for a resident of the
state to nominate water for designation ....
REPRESENTATIVE HOPKINS asked if a resident is defined as an
individual or if an organization or group could bring forward a
nomination.
2:15:23 PM
MR. FULTON explained the residency requirements applicable to
the bill are found in AS 01.10.055; further, [AS 01.10.060(8)]
defines person as a natural person and as corporations and other
organizations of the state. Therefore, resident includes both
people and corporations, organizations, and others.
REPRESENTATIVE HANNAN asked whether a tribe could bring forward
a nomination if it were a federally recognized tribe that was
not incorporated in the state.
REPRESENTATIVE KOPP supported action brought by any tribe in
Alaska; he was unsure as to a tribe's standing as a person.
MR. FULTON read the definition of person [AS 01.10.060(8)] as
follows:
Includes a corporation, company, partnership, firm,
association, organization, business trust, or society,
as well as a natural person.
REPRESENTATIVE HANNAN recalled the membership [of the advisory
commission] established by the bill includes one member who
represents a tribal entity or a Native corporation in the state.
She pointed out tribal entities differ vastly from Native
corporations and thus can have competing interests; in fact,
tribes have been engaged as the primary nominators of water
designations. She suggested the bill must specify that local,
resident, tribal entities and citizens have authority to
nominate, as do corporations and Native corporations.
REPRESENTATIVE KOPP, speaking as the bill sponsor, expressed his
strong support for tribal citizens of Alaska "having a voice in
the process ...." However, he deferred to Ms. Marx's legal
opinion in this regard. He acknowledged a tribal entity may
have a different interest than a Native organization, or may
have a common interest, or may, or may not, have a common
interest with an environmental nongovernmental organization.
2:19:49 PM
MS. MARX directed attention to the bill on page 2, lines [9-17],
which read:
(4) the following members appointed by the governor:
(A) one member who represents a tribal entity or
Native corporation in the state;
(B) one member who represents an environmental or
conservation nongovernmental organization;
(C) one member who represents a resource
development nongovernmental organization; and
(D) one member who represents a statewide
organization of local governments.
MS. MARX agreed that a tribal entity and a Native corporation
are separate and distinctive; a tribal entity - an Indian Tribe
- is an independent entity and is a sovereign, and any member of
an entity of the sovereign tribe could be a member of the
commission. A Native corporation is not a sovereign tribe.
REPRESENTATIVE HANNAN returned attention to page 2, line 26
[text previously provided]. She remarked:
My question is on line 26 of page 2, the term resident
- and then Representative Kopp's staff has given us a
couple of statute citations using a legal definition
of a resident, including that a corporation that was
incorporated in the state is a resident because it's
natural persons and other entities - and I am
wondering whether a tribal entity is considered a
resident of the state if it were incorporated and
recognized by the federal government.
MS. MARX advised not all are tribal entities may be
incorporated, some are just organizations. The issue is who can
bring the nomination forward, and any individual of a tribal
entity or a corporation who is a state resident can bring a
nomination forward. She was unsure whether an entity that is
not incorporated would qualify as a state resident; however, an
individual, who is a part of an organization, can bring forth a
nomination, if they are a state resident.
2:22:50 PM
MS. MARX offered to research whether tribal organizations that
are not incorporated in the state may bring forth a nomination
on behalf of the organization.
CO-CHAIR LINCOLN suggested specifying a nonprofit regional
tribal organization to clarify from individual federally-
recognized tribes that are considered tribal governments.
REPRESENTATIVE RASMUSSEN asked whether appointees to the
advisory commission would be subject to legislative
confirmation.
REPRESENTATIVE KOPP said no, because the intent of the bill is
to avoid politicizing the commission and the professional work
of the commission.
REPRESENTATIVE RASMUSSEN said legislative approval eliminates
some of the politics in a situation where the governor and the
legislative majority represent different political parties. She
directed attention to the zero fiscal note[s] [Identifier: HB
138 DNR-MLW-2-7-2020; Identifier HB 138-DEC-WIF-02-07-20;
Identifier: HB 138-DFG-CO-2-8-20] and pointed out commission
members are entitled to per diem and travel allowances. She
questioned how the commission would begin meeting regularly with
no funding.
2:27:01 PM
REPRESENTATIVE KOPP explained the commission is created within
DEC; although there are five pending nominations, he suggested
the commission will have limited meetings and "what that fiscal
ultimately will be" is unknown.
REPRESENTATIVE SPOHNHOLZ directed attention to the bill on page
3, lines 3-4, and lines 7-9, which read:
(D) a description of the existing water quality and
any technical data on which the description is based;
(F) an analysis of the economic cost and benefit of
designating the water as outstanding national resource
water, including the economic cost and benefit to
communities and current or foreseeable projects; and
REPRESENTATIVE SPOHNHOLZ surmised [subparagraphs (D) and (F)] of
the bill set a very high bar for certain nominators, such as
individuals or small tribes or communities; she asked whether
the sponsor considered tasking the commission with the in-depth
analysis required to inform the legislature on the impact of a
Tier 3 water designation.
[Discussion was directed to the bill beginning on page 2, lines
25-31, and continuing to page 3, lines 1 and 2, which read:]
(e) The commission shall
(1) establish a process for a resident of the
state to nominate water for designation as outstanding
national resource water; the process must at a minimum
require that the nomination be submitted to the
commission in writing and include
(A) the name, description, and location of
the water;
(B) the boundaries upstream and downstream
of the water;
(C) an explanation of what makes the water
an outstanding national resource water, including a
description of the recreational or ecological value
that makes the water exceptional;
REPRESENTATIVE KOPP pointed out the determination of significant
recreational or ecological qualities is more a policy than a
scientific determination. He acknowledged a nominator needs to
accurately describe the upstream and downstream boundaries of
the water and indicate its existing water quality, which could
cost several thousand dollars; for the cost-benefit analysis,
which could vary in scope, he said many nominators work with
partners that would help with the expense. He explained the
bill does not specify facets of the analysis so the commission
can request more information. Representative Kopp advised a
nominator can research websites and he restated the intent is
not to make the [expense of a nomination] prohibitive.
2:32:00 PM
REPRESENTATIVE TUCK directed attention to the bill on page 3,
lines 5 and 6, which read:
(E) a discussion of any nonpoint source activity to be
conducted in the foreseeable future that may affect
water quality;
REPRESENTATIVE TUCK asked for the meaning of nonpoint source
activity.
MR. FULTON directed attention to page 4, lines 21-23, which
read:
(2) "nonpoint source activity" means an activity that
does not produce a discharge from a point source, as
that term is defined in regulations adopted under this
chapter.
MR. FULTON further explained nonpoint source activities are
generally runoff whereas a point source activity is [a
substance] coming out of a discharge pipe.
REPRESENTATIVE TUCK said the nomination process would be a
burden for any entity. He directed attention to Version K on
page 2, lines 27-28, which read [in part]:
; the process must at a minimum require that the
nomination be submitted to the commission in writing
and include
REPRESENTATIVE TUCK questioned how a discussion of nonpoint
activity in the foreseeable future [as provided in Version K,
section 1, subsection (e), paragraph (1), subparagraph (E)],
could be summitted to the commission in writing.
2:35:04 PM
REPRESENTATIVE KOPP remarked:
I would say that means simply what it appears to mean,
is relaying to the nomination commission any nonpoint
source activity that can be conducted in the
foreseeable future ... writing it out on paper, this
is, this is what we're aware of.
CO-CHAIR LINCOLN asked when the first waterbody was nominated.
REPRESENTATIVE KOPP said in 2012.
CO-CHAIR LINCOLN questioned whether there is any risk to the
state because it does not have an established process.
REPRESENTATIVE KOPP said yes; the risk is, if the state fails to
act, EPA could act unilaterally which could lead to litigation.
2:37:25 PM
CO-CHAIR LINCOLN opened public testimony on HB 138.
2:37:48 PM
JONES PAUL HOTCH JR., vice-president, Chilkat Indian Village
Tribal Council, expressed Chilkat Indian Village Tribal
Council's opposition to HB 138. He informed the committee
Chilkat Indian Village of Klukwan is a federally recognized
tribe that believes the Alaska National Interest Lands
Conservation Act (ANILCA) Title VIII is vital to it. He
described the legislative process as a lengthy process to
designate Tier 3 water. Klukwan has lived a traditional
subsistence lifestyle village since time immemorial and seeks to
continue its lifestyle, with life close to food, which is
important to village culture. The Chilkat River is a natural
spawning ground for all five species of Pacific salmon and is
the second largest producer of coho salmon in Southeast, and the
largest producer of sockeye and chum salmon. Mr. Hotch
questioned the requirement of a cost analysis because one cannot
submit a cost analysis on the value of salmon and berries.
2:42:09 PM
GUY ARCHIBALD disclosed he is a staff scientist for Southeast
Alaska Conservation Council and is testifying on his own behalf.
He expressed opposition to HB 138 [Version K] and questioned how
a process that has to go through the legislature would not be a
political process. In response to previous statements, he
explained protecting Tier 3 waters "in perpetuity" refers to
protection from permanent or long-term degradation; in fact, all
Tier 3 designations in other states have exemptions for short-
term degradation from activities such as such as roadbuilding,
flood control, and river restoration. Mr. Archibald referred to
the sponsor's statement, that Alaska does not have a formal
process for Tier 3 designations, and said Alaska has two other
mechanisms for designating Tier 3 water included in [DEC's] 2010
policy and procedures guidance that have been approved by EPA.
Further, in response to statements that Tier 3 designations
would impact upland activities including motorized vessels,
residential and commercial septic systems, and road
construction, mining, and timber harvesting, he said the
aforementioned are nonpoint source discharges and almost every
state that regulates Tier 3 water only limits new or expanded
point source discharges. He directed attention to his written
testimony [previously submitted] explaining Arizona water
quality policy related to mixing zones. Mr. Archibald concluded
Alaska has permitted many point source discharges and making a
process easier for a corporation to pollute water, and harder
for residents to protect water, is a violation of the state
constitution.
REPRESENTATIVE HANNAN asked for clarification of Mr. Archibald's
reference to EPA [approval].
MR. ARCHIBALD said the information can be found in his written
testimony.
2:46:01 PM
KONRAD SCHAAD informed the committee he has lived in Homer for
40 years and has fished commercially in Bristol Bay since 1985
with his sons. He said Alaskans are proud of their fish
management that has resulted in the last great salmon runs on
Earth; however, management is not effective without clean water.
He has heard Alaska has the strongest protection for its salmon
streams but cautioned that the passage of HB 138 would create a
carte blanche for mining companies that seek [mining] permits.
Mr. Schaad said more science and less politics are needed to
ensure state waters stay clean. He cautioned if the nomination
for Tier 3 designation becomes cumbersome and burdensome, few,
if any, will achieve designation, and urged the committee to not
weaken the existing process. Mr. Schaad expressed his strong
opposition to HB 138.
2:47:42 PM
MARIO BENASSI expressed his opposition to HB 138. He said he
assumed that currently DEC designates Tier 1 and Tier 2 waters,
which are issued permits allowing the pollution of rivers. In a
fair process, it would be as easy to designate rivers that would
not be polluted as it would be to designate rivers that are
going to be polluted; once a river is polluted, the pollution is
in perpetuity. Mr. Benassi opined HB 138 would further
politicize the process through legislative approval. Because
DEC already makes decisions based on policy and criteria, he
urged that the designation of Tier 3 water remain with DEC.
2:49:37 PM
JOE HOTCH said Alaska National Interest Lands Conservation Act
[Title VIII] Section 804 is related to Tlingit traditional use
for his children and grandchildren. Also, [Title VII, Section
12 of the Alaska State Constitution] disclaims right and title
to land held by Indian, Eskimo, or Aleut. He urged the
committee to adhere to the state constitution, and said he was
speaking for all children.
2:51:25 PM
DOUG WOODBY informed the committee he retired from ADFG as chief
fisheries scientist for the commercial fisheries division, and
during his career, worked in all regions of the state. He
opined the primary reason the state is successful in managing
its renewable fish resources is that the state began with
pristine conditions; the state cannot afford to lose its
pristine conditions, which are central to Alaska. He expressed
his concern the bill removes access to a democratic process and
creates a more policy-based process that will not provide
science-based solutions or protect pristine waters. Mr. Woodby
said he opposed the bill.
2:53:13 PM
DAN HOTCH, Spokesperson, Chilkat Indian Village, expressed his
opposition to the bill. He informed the committee he comes from
Klukwan. Klukwan means "the eternal village" and he told a
story of a long-ago person who was discovered with salmon
remains, which illustrates that salmon existed 10,000 years ago.
He reported elders and others in Klukwan are donating moose and
fish for school lunches to replace the school lunch program that
was not funded. Mr. Hotch asked for the committee's help in
protecting rivers, streams, cultural foods, and cultures; the
impact of HB 138 on the village would be irreparable because the
eternal village cannot be sustained with polluted water: there
could be no salmon, no bears, no eagles, nor an intact
ecosystem. Mr. Hotch surmised some people do not understand the
land - or want to protect the land - as do the residents of
Klukwan.
2:55:29 PM
DAN CANNON pointed out a Tier 3 designation denies new permits
for long-term degradation and does not address cleaning fish,
motorboats, culture camps, or private septic systems. Speaking
hypothetically as a nominator, he opined the governor's seven-
person committee would not accept a cost-benefit analysis based
on information from websites, and he could not afford a
professional analysis, thus he would not be able to bring a
nomination. If his nomination were accepted, he described the
multi-step process that would follow, and concluded HB 138
creates a maze of bureaucracy, which would be extremely hard for
Alaskans to overcome in order to protect their waters. Mr.
Cannon observed the committee's vote to move HB 138 out of
committee will indicate to constituents whether a legislator is
voting on the side of the people and science, or on the side of
unnecessary government bureaucracy and corporate polluters. He
urged the committee to oppose HB 138.
2:57:54 PM
SKWEIT MORGAN began her testimony in her Native language. She
said her English name is Jessie Morgan and she is a child of the
Eagle/Killerwhale and is Raven/Sockeye from Haines. Speaking as
Tlingit, and an Alaskan, she said she opposes HB 138; the bill
does not create a nomination or designation process, because
both already exist, but is intended to increase barriers to
tribal governments who seek to restore sovereignty over their
land and waters. Ms. Morgan said the Chilkat Indian Village and
Klukwan are owned by the Tlingit people, and because of their
respect for salmon and the knowledge of their ancestors, Alaska
still has salmon; however, the mismanagement of the fishery has
impacted communities that depend on the Chilkat River and its
salmon. She said salmon returns are unpredictable and the
government should not remove the right to protect clean waters.
Ms. Morgan said Alaska is not open for business and restated her
opposition to HB 138.
3:00:07 PM
ANDREA HERNANDEZ said she is a 46-year resident of Southeast
Alaska. She expressed her understanding that rivers have been
nominated for Tier 3 designation, but nominations are waiting
for a specific process with which to officially designate the
rivers. Ms. Hernandez urged the committee to hear further
public testimony if the legislation is necessary. She spoke in
opposition to HB 138 because she does not want to take science
out of the process and thereby make the process more political,
which would not work. She said all Alaskans value clean water
and need to be assured there is a fair and science-based process
in place to protect water resources; as a resident who relies on
commercial salmon fishing for her livelihood, nothing is more
important. Ms. Hernandez agreed with previous testimony that it
should be easier to protect waterways than to pollute them.
3:02:42 PM
SARAH DAVIDSON disclosed she manages the water program at the
Southeast Alaska Conservation Council and is speaking on her own
behalf. She expressed her opposition to HB 138, [Version K],
noting the committee substitute, like the previous version of
the bill, does not provide an adequate pathway for Alaskans to
protect the waters on which they depend. A three-step political
process, rather than an administrative science-based process,
ensures there will never be a Tier 3 water designation in
Alaska. Further, requiring that the nominator pay all costs
puts the onus on local communities that have fewer resources to
prevent, mitigate, and respond to contaminated water and food
sources. She said by continuing to permit pollution without the
consent of - or response from - the most affected communities,
the state puts profit over public health and safety. Water is a
common good that belongs to all and must be actively managed for
the good of all; local knowledge and local experts should have a
place and a voice in protecting waters. A Tier 3 designation is
the only way for Alaskans to protect their pristine waters, and
the designation process must be accessible, affordable, and
science-based, in order to meet the purpose of EPA's
antidegradation mandate. Ms. Davidson strongly urged the
committee to oppose the bill.
3:05:46 PM
EMILY ANDERSON, Alaska Program Director, Wild Salmon Center,
informed the committee she is an attorney who specializes in
natural resource law and who has followed the outstanding
national resource water (ONRW) issue for ten years. She pointed
out the process to establish Tier 3 waters in the state is a
mandate of the Clean Water Act. The legislature has delegated
to DEC the authority to set water quality standards and to
classify Alaska waters into tiers; DEC has established a process
to regulate Tier 1, 2, and 3 waters, but has refused to
establish an administrative process to nominate and designate
Tier 3 waters. She urged for the committee to question whether
the process drafted in HB 138 is fairly balanced and accessible
to the public. She opined the decision should be based on
whether Alaskans can act to protect clean water and fisheries;
furthermore, decisions to protect water should be science-based
and not based on political policy. Ms. Anderson said DEC is in
the best position to make a science-based decision, rather than
the legislature. In addition, the proposed nominations do not
need to be processed twice, and HB 138 establishes a highly
political process in doing so. If the legislature chooses to
establish an advisory commission, it should include parameters
for members of the commission and delegate nominating authority
to the commission; in addition, commission members should have
minimum subject matter qualifications. She concluded the state
constitution reserves fish, wildlife, and water for its
citizens.
REPRESENTATIVE SPOHNHOLZ asked for the meaning of science-based.
MS. ANDERSON explained if the nomination process is not based in
an understanding of the value of the waterway to residents,
fisheries, water quality, and other scientific aspects, the
process becomes political; if so, the reasons to pollute the
water could outweigh the other values.
CO-CHAIR TARR recalled there is disagreement between legislative
and executive branch attorneys as to whether DEC is authorized
by the state constitution to independently make a Tier 3
designation.
MS. ANDERSON expressed her support for the opinion put forth by
legislative legal services, because the legislature has broad
authority to delegate appropriation powers to the executive
branch, and thereby through DEC. The issue addresses water
quality standards, and DEC holds the authority to create water
quality standards and thus antidegradation policy.
3:11:53 PM
JESSICA PLACHTA, Executive Director, Lynn Canal Conservation,
informed the committee Lynn Canal Conservation (LCG) is based in
the Chilkat Valley and represents over 300 local members. She
spoke in opposition to HB 138 and in support of Tier 3
nominations put forth by Alaska Native Tribes. The Chilkat
Valley was formed by the Chilkat River which has been recognized
as one of America's top ten most endangered rivers, and that
five years ago was nominated by the Chilkat Indian Village for
Tier 3 designation. She opined HB 138 is worse than nothing
because it would drown DEC's informed science-based authority in
red tape. Further, HB 138 would give the governor veto power
over Tier 3 designations, the governor's appointed commission
would vet nominations, and the right to clean water would be
politicized. Health, subsistence-based food security, and
economies depend upon clean water, as do the fishing and tourism
industries. Endangering water quality also endangers health,
wealth, well-being, the rights of indigenous people, and one of
the world's last valuable and healthy salmon runs. The bill
also takes away the rights of Alaskans and risks Alaska's most
sustainable and lucrative industries; HB 138 is unnecessary,
unjust, and scientifically unsound. She suggested the bill
should be referred to the House Special Committee on Fisheries
and the House Special Committee on Tribal Affairs.
3:14:51 PM
MEREDITH TRAINOR, Executive Director, Southeast Alaska
Conservation Council (SEACC), informed the committee SEACC is a
regional conservation nonprofit based in Juneau. She said she
was speaking on behalf of over 2,500 Alaskan SEACC supporters
and 530 supporters who have signed a petition rejecting a
political process for evaluating Tier 3 nominations. In its
current form, HB 138 would make it nearly impossible that any
Tier 3 waterbody would ever be designated in Alaska. The
ability of a citizen to nominate waters for Tier 3, or ONRW,
status is a necessary complement to the ability of private
citizens and industry to pollute some of Alaska's waters.
Further, if some of Alaska's waters are of exceptional
significance, there must be a mechanism to achieve Tier 3
designation. She said the appropriate body for evaluating
nominations is DEC; DEC's mission is to protect human health and
the environment, which aligns with the purpose of a Tier 3
designation. However, DEC's ability to fulfil its mission has
been diminished in recent years by funding cuts and changes in
leadership. Ms. Trainor stressed sufficient funding must be
restored to DEC in order that it may evaluate the type of
projects that impair or damage state waters, and using the best
science available, evaluate nominations of Tier 3 waters. She
pointed out it is the responsibility of the legislature to do no
additional harm to Alaska's natural environment and to ensure
residents have the ability to identify parts of the environment
that are truly exceptional and should be protected. She
concluded SEACC opposes HB 138 as written.
[HB 138 was held over with public testimony open.]
3:18:45 PM
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:18 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 138 Draft CS v. K.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM HRES 3/13/2020 1:00:00 PM |
HB 138 |
| HB 138 Sectional Analysis v. K 2.4.2020.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM HRES 3/13/2020 1:00:00 PM |
HB 138 |
| HB 138 Sponsor Statement 2.4.2020.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM HRES 3/13/2020 1:00:00 PM |
HB 138 |
| HB138 18 AAC 70.016 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 House Natural Resources Request for a Hearing 4.22.2019.pdf |
HRES 2/10/2020 1:00:00 PM |
|
| HB138 40 CFR Part 131 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Sponsor Statement version U 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material Commissioner Hartig Letter to Senate 4.22.2019.PDF |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Final Tier 3 Guidance 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Tier 3 response 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Tier 3 Water Designation FAQ 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DNR Fact Sheet Legislatively Designated Areas 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 version A 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Chilkat Indian Village Letter of Opposition 4.26.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC P&P re Tier 3 Nomination 11.21.18.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Fiscal Note 4.26.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Cook Inletkeeper Letter of Opposition 4.26.19.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Letters of Opposition 4.29.19.pdf |
HRES 2/10/2020 1:00:00 PM |
|
| HB138 Coalition Letter of Support 4.28.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Letters of Opposition 4.29.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 Suppporting Document - Doyon Letter of Support 4.26.19.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC attachment sent to EPA 3.6.2018.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - AML Presentation Tier 3 Designation Impact 05.03.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Legal Opinion re HB 138 and Ballot Initiatives 5.1.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB 138 Supporting Documents - SEACC Letter and Reference Material 05.01.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Letters of Opposition 05.02.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Suppporting Document - Doyon Letter of Support 4.26.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 Coalition Letter of Support 4.28.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 Supporting Documents - Chilkat Indian Village.pdf |
HRES 2/10/2020 1:00:00 PM |
|
| HB138 Supporting Document - DEC State Tier 3 Review 5.3.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM |
|
| HB138 Supporting Document - EPA to DEC Email 11.23.18.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Legal Opinion re DEC Statutory Authority to Designate Tier 3 Waters 5.2.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Opposing Document - Letter in Opposition to House Resources Committee from SEACC - 5.1.19 (002).pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Conitz Letter of Opposition 05.02.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Additional Letters of Opposition.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB 138 Slides 2.8.20.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |