Legislature(2017 - 2018)BUTROVICH 205

03/28/2018 03:30 PM RESOURCES

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Audio Topic
03:30:10 PM Start
03:30:36 PM Overview of the State of Alaska's Permitting System for Anadromous Streams
05:53:30 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview of State of Alaska's Permitting System TELECONFERENCED
for Anadromous Streams
- Department of Natural Resources
- Department of Environmental Conservation
- Department of Fish & Game
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                         March 28, 2018                                                                                         
                           3:30 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Cathy Giessel, Chair                                                                                                    
Senator John Coghill, Vice Chair                                                                                                
Senator Natasha von Imhof                                                                                                       
Senator Bert Stedman                                                                                                            
Senator Kevin Meyer                                                                                                             
Senator Bill Wielechowski                                                                                                       
Senator Click Bishop                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
Overview: State of Alaska's Permitting System for Anadromous                                                                    
Streams                                                                                                                         
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
SAM COTTEN, Commissioner                                                                                                        
Alaska Department of Fish and Game (ADF&G)                                                                                      
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided overview of ADF&G's participation                                                                
in Alaska's permitting system for anadromous streams.                                                                           
                                                                                                                                
LARRY HARTIG, Commissioner                                                                                                      
Department of Environmental Conservation (DEC)                                                                                  
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided overview of ADEC's participation in                                                              
Alaska's permitting system for anadromous streams.                                                                              
                                                                                                                                
ANDY MACK, Commissioner                                                                                                         
Department of Natural Resources (DNR)                                                                                           
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided overview of DNR's  participation in                                                             
Alaska's permitting system for anadromous streams.                                                                              
                                                                                                                                
RON BENKERT, Permitting Lead                                                                                                    
Division of Habitat                                                                                                             
Alaska Department of Fish and Game (ADF&G)                                                                                      
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   Provided  overview  of  the   Division  of                                                             
Habitat's  participation   in  Alaska's  permitting   system  for                                                               
anadromous streams.                                                                                                             
                                                                                                                                
WADE STRICKLAND, Manager                                                                                                        
Wastewater Discharge Authorization Program (WDAP)                                                                               
Department of Environmental Conservation (DEC)                                                                                  
POSITION STATEMENT: Provided overview  of ADEC's participation in                                                             
Alaska's permitting system for anadromous streams.                                                                              
                                                                                                                                
HEIDI HANSEN, Deputy Commissioner                                                                                               
Department of Natural Resources (DNR)                                                                                           
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided overview of DNR's  participation in                                                             
Alaska's permitting system for anadromous streams.                                                                              
                                                                                                                                
KYLE MOSELLE, Associate Director                                                                                                
Office of Project Management and Permitting (OPMP)                                                                              
Department of Natural Resources (DNR)                                                                                           
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided overview  of OPMP's participation in                                                             
Alaska's permitting system for anadromous streams.                                                                              
                                                                                                                                
BRENT GOODRUM, Director                                                                                                         
Division of Mining, Land, and Water                                                                                             
Department of Natural Resources (DNR)                                                                                           
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT: Provided overview  of the Division of Mining,                                                             
Land,  and Water's  participation in  Alaska's permitting  system                                                               
for anadromous streams.                                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
3:30:10 PM                                                                                                                    
CHAIR  CATHY   GIESSEL  called  the  Senate   Resources  Standing                                                             
Committee meeting  to order at 3:30  p.m. Present at the  call to                                                               
order were  Senators Coghill, Bishop, Von  Imhof, Stedman, Meyer,                                                               
and Chair Giessel.                                                                                                              
                                                                                                                                
^Overview  of  the  State  of   Alaska's  Permitting  System  for                                                               
Anadromous Streams                                                                                                              
    Overview of the State of Alaska's Permitting System for                                                                 
                       Anadromous Streams                                                                                   
                                                                                                                              
3:30:36 PM                                                                                                                    
CHAIR  GIESSEL  announced  the   overview  of  Alaska's  existing                                                               
permitting  system  for anadromous  streams  and  said Alaska  is                                                               
considering  changing the  laws that  govern its  anadromous fish                                                               
streams  that are  located in  Title 16,  and today's  hearing is                                                               
informational  to  determine   whether  the  existing  permitting                                                               
system works  and to understand  the quantifiable changes  to the                                                               
permitting system if the initiative efforts become law.                                                                         
                                                                                                                                
3:31:00 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
                                                                                                                                
3:31:12 PM                                                                                                                    
SAM  COTTEN, Commissioner,  Alaska  Department of  Fish and  Game                                                               
(ADF&G), Juneau, Alaska, opened remarks  by saying that they were                                                               
here today in response to  Chair Giessel's request to discuss how                                                               
agencies manage and protect fish  and wildlife habitat in Alaska.                                                               
He was joined by Ron  Benkert, Regional Supervisor and Permitting                                                               
Lead for Southcentral Large Projects,  in the Division of Habitat                                                               
and  noted that  he  has  been assigned  to  lead the  division's                                                               
efforts in  the large  projects group. He  said that  Mr. Benkert                                                               
also leads an "integrated approach"  that includes input from the                                                               
Division of Subsistence, the Division  of Sportfish, the Division                                                               
of Wildlife, and  the Division of Commercial Fish  that also have                                                               
an interest in some of these projects.                                                                                          
                                                                                                                                
COMMISSIONER  COTTEN  said  the   department's  core  mission  is                                                               
management  and   protection  of   Alaska's  fish   and  wildlife                                                               
resources, adding  that habitat is  a very high priority  in that                                                               
overall  mission.  Healthy  habitat  is  extremely  important  as                                                               
various interests compete for allocations  - in salmon resources,                                                               
especially -  and find that  they all  have one thing  in common:                                                               
that healthy  salmon habitat  benefits everybody.  The department                                                               
does not take that lightly.  In fact, he has several partnerships                                                               
around the  state with local  governments and many  groups (sport                                                               
fish  organizations,  commercial   fish  organizations,  resource                                                               
development   organizations,   and   dozens   of   non-government                                                               
organizations) that  put a  lot of time  and effort  into habitat                                                               
protection  projects, like  culvert replacements  and other  fish                                                               
passage efforts.                                                                                                                
                                                                                                                                
COMMISSIONER COTTEN  said the chair's  letter suggested  that the                                                               
departments respond  to three general questions,  and Mr. Benkert                                                               
would  respond to  those for  his department.  He cautioned  that                                                               
they  would be  a  little  hesitant to  speculate  on impacts  to                                                               
various stakeholders (question 3), because  a lot of the projects                                                               
have their own parameters and  special needs. He also didn't want                                                               
to appear  to advocate for  or against any  potential initiatives                                                               
or to influence the Supreme Court review.                                                                                       
                                                                                                                                
3:35:53 PM                                                                                                                    
LARRY   HARTIG,   Commissioner,   Department   of   Environmental                                                               
Conservation (DEC),  Juneau, Alaska,  said the department  has no                                                               
position  on the  initiative and  that Wade  Strickland, Manager,                                                               
Wastewater Permitting Program,  was with him today  to talk about                                                               
the details  of their  existing program.  He said  during today's                                                               
hearing, DEC would present on three topics:                                                                                     
                                                                                                                                
     1. How water  quality standards are set  to protect all                                                                    
     aquatic life and  other uses for both  marine and fresh                                                                    
     water.                                                                                                                     
     2. How the  process is used to  incorporate those water                                                                    
     quality standards  into the Alaska  Pollutant Discharge                                                                    
     Elimination System Permits  (APDES) that the department                                                                    
     issues   under  the   authority  granted   it  by   the                                                                    
     Environmental  Protection Agency  (EPA) in  Section 402                                                                    
     of the Clean Water Act.                                                                                                    
     3.  How  the  initiative  would  impact  their  program                                                                    
     fiscally.                                                                                                                  
                                                                                                                                
COMMISSIONER  HARTIG said  water quality  standards are  science-                                                               
based  and  are the  foundation  on  which permitting  and  other                                                               
programs  are  built  to  protect water  quality.  The  EPA  must                                                               
approve those  water quality  standards before  they get  used in                                                               
the  permits. The  water quality  standards  get revisited  every                                                               
three years  to evaluate  data from dischargers  and to  look for                                                               
new science  that could require  a change. DEC consults  with the                                                               
National  Marine  Fisheries  Services (NMFS)  and  other  federal                                                               
agencies. Both  agencies use  a public process  to set  or change                                                               
water quality  standards. A lot  of work goes into  water quality                                                               
standards; sometimes it takes years to get one changed.                                                                         
                                                                                                                                
He explained that the EPA  delegated the authority to issue APDES                                                               
permits to  the DEC in  2008 and the  program was phased  in over                                                               
four  years.  Improvements  that   Alaska  wanted  were  made  on                                                               
updating permits and  getting them out the  door more efficiently                                                               
and  now  the  department  has  worked  through  the  backlog  it                                                               
inherited from  the EPA. They  have issued APDES permits  for all                                                               
the  major operating  mines in  Alaska at  least once  (Pogo) and                                                               
most of them  twice (Red Dog, Kensington, Greens  Creek, and Fort                                                               
Knox). These permits  are issued for five years, but  they can be                                                               
modified  or even  terminated for  certain reasons.  None of  the                                                               
permits have been appealed judicially.                                                                                          
                                                                                                                                
3:40:23 PM                                                                                                                    
ANDY MACK,  Commissioner, Department of Natural  Resources (DNR),                                                               
Juneau,  Alaska, opened  by saying  the state  has an  incredibly                                                               
large portfolio  of property that  includes 105 million  acres of                                                               
land and  about 55  million acres  of fresh  water. The  state of                                                               
Oregon has about  60 million acres by  comparison. The department                                                               
tends to  manage state  lands and waters  through plans  and they                                                               
tend to emphasize multiple use  and sustained yield. They are all                                                               
developed with the direct involvement  of stakeholders across the                                                               
state  and   also  the  influence  and   participation  of  local                                                               
organizations  including  cities  and  communities.  The  state's                                                               
plans  tend  to be  forward-leaning  and  are designed  to  allow                                                               
access  including  resource  development. They  will  be  talking                                                               
about three distinctions:                                                                                                       
                                                                                                                                
     1. general state land                                                                                                      
     2. state parks                                                                                                             
     3. forestry                                                                                                                
                                                                                                                                
He  explained that  state parks  are created  by the  legislature                                                               
along with  public use areas.  The department also  manages state                                                               
lands which  have certain activities  not requiring a  permit and                                                               
certain other activities requiring  a permit or an authorization.                                                               
At each critical  juncture, they work with  their sister agencies                                                               
and take  guidance from them  on business matters. They  view the                                                               
DNR as the  custodian of both the resource, which  lies under the                                                               
land in many cases, and the  surface estate, which is the impacts                                                               
and activities on the surface.                                                                                                  
                                                                                                                                
Presenting with him today will  be Kyle Mossel, Office of Project                                                               
Management and Permitting  (OPMP), who is very  familiar with how                                                               
projects   come   together,   and  Heidi   Hansen,   DNR   Deputy                                                               
Commissioner, who manages many of  the divisions that do the work                                                               
on management of state lands.                                                                                                   
                                                                                                                                
CHAIR GIESSEL remarked that over  the years the committee has had                                                               
meetings  and  talked  about  how   the  three  departments  work                                                               
together  to maintain  the state's  water quality  and this  is a                                                               
wonderful opportunity to hear from all three at once.                                                                           
                                                                                                                                
3:43:59 PM                                                                                                                    
RON  BENKERT,  Permitting  Lead,   Division  of  Habitat,  Alaska                                                               
Department of Fish and Game  (ADF&G), Anchorage, Alaska, he would                                                               
provide  an overview  of how  the division  approaches permitting                                                               
projects  that will  potentially impact  anadromous water  bodies                                                               
and  all other  water bodies,  and then  segue into  what changes                                                               
would have  to occur  within the division  and the  department to                                                               
accommodate the passage of the initiative.                                                                                      
                                                                                                                                
MR. BENKERT  said culvert replacements  are done  routinely. They                                                               
are classified as good or bad  for fish passage. They work from a                                                               
list  and  work  with  Department of  Transportation  and  Public                                                               
Facilities  (DOTPF)  and  various local  governments  to  replace                                                               
culverts whenever roadwork is being done.                                                                                       
                                                                                                                                
SENATOR BISHOP asked how long it  took to permit the fish passage                                                               
pictured in the power point.                                                                                                    
                                                                                                                                
MR.  BENKERT answered  that is  a  culvert project  for DOTPF  in                                                               
Cordova and  a culvert of this  size and scope usually  takes 2-6                                                               
weeks to permit.                                                                                                                
                                                                                                                                
He added that a lot of times  a diversion plan has to be approved                                                               
after the permit  is issued. For instance, if a  channel needs to                                                               
be  diverted, the  contractor  comes  up with  a  design and  the                                                               
department has  to approve  it. The  project gets  another review                                                               
prior to  its initiation to  assure fish passage through  an area                                                               
even when the construction is going on.                                                                                         
                                                                                                                                
SENATOR BISHOP asked if this  initiative passes how long would it                                                               
take to permit this project.                                                                                                    
                                                                                                                                
MR. BENKERT replied that the  initiative requires a public notice                                                               
and that  would add 10-30  days, whatever  was settled upon  as a                                                               
length of time for posting.                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked  if there is any  public process under                                                               
existing law, especially for major projects.                                                                                    
                                                                                                                                
MR. BENKERT  answered there  is currently  no public  process for                                                               
any of  their permitting. He  added that the  public notification                                                               
might  not  cause a  delay  because  when  DOTPF  or one  of  the                                                               
boroughs initiates  a permit application  they usually do  it way                                                               
in advance.                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked if permitting involves fees.                                                                         
                                                                                                                                
MR. BENKERT replied that they  currently have no fee schedule for                                                               
issuance of  permits, but compensation  on larger  projects comes                                                               
to  the department  through a  funding mechanism  managed by  the                                                               
OPMP Division called reimbursable  services agreements. These are                                                               
agreements with  project proponents  to reimburse  the department                                                               
for the  cost of  evaluating large  documents and  for evaluating                                                               
the project on the ground.                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI asked  how many  fish habitat  permits they                                                               
issue  in the  course of  a  year; how  much does  that cost  the                                                               
department and how much are they getting back?                                                                                  
                                                                                                                                
MR. BENKERT answered  they had a peak in 2013  when 5,000 permits                                                               
were issued statewide. That number  has dropped dramatically down                                                               
to 1500 just because of the current fiscal climate.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI asked  how much it costs the  state to issue                                                               
those  permits and  how  much  it is  getting  back through  cost                                                               
sharing.                                                                                                                        
                                                                                                                                
MR.  BENKERT replied  that it  is hard  to place  a cost  on just                                                               
issuance of permits  because the Division of  Habitat is involved                                                               
in a lot of other things. Its budget is around $7 million year.                                                                 
                                                                                                                                
3:51:17 PM                                                                                                                    
SENATOR  VON IMHOF  said  usually an  entire  project is  noticed                                                               
initially -  for instance,  several culverts  that will  take six                                                               
months to replace.                                                                                                              
                                                                                                                                
MR. BENKERT agreed that was  correct, adding that DOTPF initiates                                                               
the  public notice.  If other  components from  other departments                                                               
are involved - for instance, if  water needs to be withdrawn or a                                                               
stream needs  to be  diverted -  then the  DNR Division  of Water                                                               
would  issue a  permit. The  DEC  also issues  permits for  large                                                               
construction projects  - for example,  the Storm  Water Pollution                                                               
Prevention  Plan  (SWPPP)  is  part of  their  APDES  permit.  It                                                               
requires  inserting sediment  controls to  make sure  sediment is                                                               
not  running   off  the  site   into  a  stream   during  project                                                               
construction. Those are public noticed, as well.                                                                                
                                                                                                                                
SENATOR VON IMHOF  thanked him and said it is  very reassuring to                                                               
know that there  is quite a bit of opportunity  for public notice                                                               
already.  She asked  if the  culverts in  his picture  would need                                                               
additional scrutiny  and permits to  replace the same  culvert in                                                               
the event the initiative passes.                                                                                                
                                                                                                                                
MR. BENKERT replied that is  undetermined. The initiative has two                                                               
categories  of permits:  it's either  a major  permit or  a minor                                                               
permit,  and  there   is  no  clear  guidance  as   to  how  that                                                               
determination is made.                                                                                                          
                                                                                                                                
3:53:21 PM                                                                                                                    
SENATOR MEYER asked  if it is safe to say  that if the initiative                                                               
passes  that  it would  create  more  work  on  the part  of  the                                                               
department and require a larger budget.                                                                                         
                                                                                                                                
MR.  BENKERT   replied  yes.  He  said   the  division's  mission                                                               
statement  says to  protect Alaska's  valuable fish  and wildlife                                                               
resources and  their habitats as Alaska's  population and economy                                                               
continue  to  expand.  The  Habitat  Division  is  a  little  bit                                                               
different  than the  other fish  and game  divisions that  mostly                                                               
allocate resources. They are trying  to find that balance between                                                               
allowing   development  and   still  maintaining   Alaska's  fish                                                               
habitats and do a lot of negotiating with project proponents.                                                                   
                                                                                                                                
He  explained that  when a  project  comes into  the office  they                                                               
routinely  look  at  it  and  recommend  alternative  methods  or                                                               
avoidance and minimization measures  that can be implemented into                                                               
the  project to  make  it better.  They always  prefer  to see  a                                                               
bridge over  a creek rather  than a  culvert under the  road; and                                                               
sometimes they  convince the project  proponent that that  is the                                                               
way to  go. It costs a  little bit more initially,  but the long-                                                               
term maintenance costs  are much lower, and bridges  don't have a                                                               
chance of impacting any kind of fish passage.                                                                                   
                                                                                                                                
3:55:44 PM                                                                                                                    
MR. BENKERT  said their workload  priorities are  primarily under                                                               
Title  16 permitting,  but they  do a  lot of  other things  like                                                               
field work,  writing technical reports, developing  new standards                                                               
like the  recent blasting standards, and  information collection.                                                               
Large  projects of  importance to  the state  - hydro  and mining                                                               
projects  -  is another  issue  they  spend  time on.  They  also                                                               
provide  direction for  the Forest  Resources  and Practices  Act                                                               
(FRPA), issue permits  to the Forest Service when  they are doing                                                               
timber harvest and  special area planning, and  permitting on all                                                               
the state game refuges, critical  habitat areas, and sanctuaries.                                                               
They write  the management  plans for  those in  conjunction with                                                               
their wildlife  staff and  DNR. When  activities are  proposed in                                                               
those  special areas  that aren't  covered in  a management  plan                                                               
they will  evaluate those to  see if they can  actually authorize                                                               
that  activity  and  then  write  up  a  "special  area  permit."                                                               
Sometimes fish  need to be  handled or transported properly  if a                                                               
creek  is  being   diverted  or  a  scientific   study  is  being                                                               
conducted,  then a  fish resource  permit  is drafted,  typically                                                               
through the Sport Fish or Commercial Fisheries Divisions.                                                                       
                                                                                                                                
MR. BANKERT said  he would next focus on two  of the department's                                                               
statutory  authorities: the  Fishway Act,  AS 16.05.841,  and the                                                               
Anadromous Fish  Act, AS  16.05.871. He  would first  discuss the                                                               
Fishway Act in  more depth. This is basically a  fish passage act                                                               
that requires that any obstruction  built across a stream provide                                                               
for adequate  fish passage. It  applies to all species,  not just                                                               
anadromous fish, and all resident  fish populations like grayling                                                               
and rainbow  trout. If a culvert  is being put, they  ensure that                                                               
it doesn't block fish passage  and require a long-term commitment                                                               
from  the  contractor  or  project  proponent  to  maintain  that                                                               
passage. It applies only to  fish passage not to other activities                                                               
in  resident  fish waters  like  docks,  for instance,  motorized                                                               
stream crossings, and stream bank protections.                                                                                  
                                                                                                                                
3:59:56 PM                                                                                                                    
SENATOR VON  IMHOF said  one of the  previous speakers  said that                                                               
none of  DEC's permits had been  contested in court and  asked if                                                               
ADF&G  had any  judicial problems  with its  permits like  people                                                               
saying the culvert was built  improperly or is not sufficient for                                                               
fish to move through.                                                                                                           
                                                                                                                                
MR. BENKERT  replied that some  culverts weren't put  in properly                                                               
and  those are  identified by  DOTPF or  the Alaska  Railroad and                                                               
corrected  in  collaboration  with the  entity  that  constructed                                                               
them. In  the case of the  Railroad, sometimes it takes  a little                                                               
while  to  see  how  bad  the fish  passage  problem  really  is.                                                               
Reassessment  is done  by modeling  a  predominant "design  fish"                                                               
from  the stream  into the  program  with velocity  measurements.                                                               
That fish is run  through the model to make sure  it can get back                                                               
through the pipe.                                                                                                               
                                                                                                                                
SENATOR  VON  IMHOF said  she  is  hearing  that they  check  the                                                               
culverts  once they  are finished  to make  sure that  salmon and                                                               
other fish are moving adequately up  the stream and asked if that                                                               
process seems to be working okay.                                                                                               
                                                                                                                                
MR.  BENKERT  answered  yes.  He  added that  a  program  in  the                                                               
Sportfish  Division has  that  as its  primary  task. Really  bad                                                               
culverts are a priority.                                                                                                        
                                                                                                                                
COMMISSIONER COTTEN added  the State of Alaska  installed lots of                                                               
culverts some time  ago that are in dire need  of replacement and                                                               
the funding for these comes  from different sources. For example,                                                               
Crooked Creek  on the Kenai Peninsula  is probably 40 or  50 feet                                                               
below  the  surface of  the  highway  and  they are  waiting  for                                                               
highway funding  to fix  that. About $5  million in  Exxon Valdez                                                               
restoration funds was  secured to correct a culvert  that was put                                                               
in the wrong place.   Either a culvert's conditions have changed,                                                               
or they just need to be replaced for some reason.                                                                               
                                                                                                                                
4:04:36 PM                                                                                                                    
MR.  BENKERT  said  it's  not  just the  ADF&G.  They  have  good                                                               
partners  for  culvert  replacements   like  the  U.S.  Fish  and                                                               
Wildlife  Service  for  design and  funding,  Alaska  Sustainable                                                               
Salmon  funding, National  Fish  Habitat  Partnership, and  local                                                               
habitat partners.                                                                                                               
                                                                                                                                
4:05:08 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked what sort of  enforcement tools ADF&G                                                               
has to enforce permit violations now.                                                                                           
                                                                                                                                
MR. BENKERT replied that both  statutes they work under are Class                                                               
A,  nonbailable   citations,  that  require  a   mandatory  court                                                               
appearance.                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked, "misdemeanor?"                                                                                      
                                                                                                                                
MR. BENKERT answered yes. That is  one of the reasons they try to                                                               
work with folks  who have made a mistake or  don't know what they                                                               
are  required  to  do.  Sometimes  landowners  have  a  lakeshore                                                               
property and  laser level  their bank  taking the  whole riparian                                                               
zone out  and put a  boat ramp in  without any permits.  He works                                                               
with  those  guys to  come  up  with  remediation for  the  site,                                                               
because  they  want  to  comply  and realize  they  have  made  a                                                               
mistake. The  department will give  them a permit to  conduct the                                                               
remediation  and  will  monitor  it  to make  sure  it  has  been                                                               
conducted properly.                                                                                                             
                                                                                                                                
For more  egregious situations where  someone is maybe  a blatant                                                               
discharger or  knows they shouldn't  be doing something  and does                                                               
it anyway, they  use the Alaska Wildlife Troopers  to enforce the                                                               
statutes.  They will  issue a  notice of  violation which  can be                                                               
given  directly to  the violator  or to  one of  the troopers  to                                                               
issue on  their behalf. Then  it's just  a matter of  getting the                                                               
district attorney involved and taking it to court.                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI  said throwing someone  in jail as  the only                                                               
available penalty  seems a little  harsh and asked if  they would                                                               
benefit  from  having  some civil  violation  penalties  for  the                                                               
person who just doesn't want to  do anything but at the same time                                                               
you don't want to throw in jail.                                                                                                
                                                                                                                                
MR.  BENKERT replied  they  tried  to get  a  couple of  bailable                                                               
citations  through the  legislature four  or five  years ago  and                                                               
were not  successful. But yes,  they do  see a benefit  in having                                                               
bailable citations for less egregious crimes.                                                                                   
                                                                                                                                
4:07:36 PM                                                                                                                    
MR. BENKERT said next he would  cover the Anadromous Fish Act, AS                                                               
16.05.871,  the  focus  of   the  initiative.  This  jurisdiction                                                               
applies to any  kind of activity that is  happening in anadromous                                                               
fish bearing water bodies and applies  to any live states; so, it                                                               
doesn't  matter  whether  its  eggs   in  the  gravel,  an  adult                                                               
returning  to spawn,  or anything  in between.  It is  limited to                                                               
areas below the ordinary high-water  line of an anadromous stream                                                               
or water body. The water bodies  must be in the Anadromous Waters                                                               
Catalogue, the  department's tool  to identify what  water bodies                                                               
in  the state  that  do have  anadromous fish.  A  team goes  out                                                               
annually  to  assess  and  sample various  areas  of  the  state,                                                               
typically covering about 40,000 square  kilometers a year, to see                                                               
if new water  bodies should be entered into  the catalogue. Other                                                               
consultants  do  it,  too,  those  who are  working  on  a  large                                                               
project,  for   instance,  federal   agencies  and   other  state                                                               
biologists.  There  is  an  annual  nominations  period  for  new                                                               
streams into the catalogue; the new one should come out in June.                                                                
                                                                                                                                
SENATOR WIELECHOWSKI asked if he  has any idea of what percentage                                                               
of anadromous rivers, lakes, and streams are in the catalogue.                                                                  
                                                                                                                                
MR.  BENKERT replied  that  they had  looked a  lot  at that  but                                                               
didn't have a  really good answer. But the  Sportfish website has                                                               
an estimate of  50 percent, which varies  between watersheds. The                                                               
percentage is  higher in urban  areas like the  Matanuska Borough                                                               
where  the  Susitna/Watana  Hydro  project  generated  a  lot  of                                                               
biologists collecting  additional information. Some places  are a                                                               
really  low priority  such as  national parks  where there  isn't                                                               
much chance of development occurring.                                                                                           
                                                                                                                                
He explained that  they use criteria in doing  this analysis. The                                                               
state  has  a  lot  of  waters that  just  aren't  accessible  to                                                               
anadromous  fish like  high alpine  lakes with  a big  waterfall.                                                               
Those  need  to  be  accounted  for, so  there  is  an  elevation                                                               
limitation. Anadromous fish have not  been seen above about 1,100                                                               
meters. So,  they don't sample  there just because there  is very                                                               
low likelihood  of encountering anadromous  fish. It all  adds up                                                               
to the fact that  a lot of waters in the  state that are included                                                               
in that 50 percent just  don't have much likelihood of containing                                                               
anadromous fish.                                                                                                                
                                                                                                                                
4:11:32 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  how   ADF&G  handles  receiving  an                                                               
application for a project on a  stream or lake that is not listed                                                               
in the catalogue, but the department suspects it's anadromous.                                                                  
                                                                                                                                
MR. BENKERT  replied that they  "look pretty hard."  For example,                                                               
the Department  of Transportation  and Public  Facilities (DOTPF)                                                               
was replacing  some culverts  on the  Parks Highway  around Broad                                                               
Pass and  the stream  had been  sampled three  or four  times for                                                               
fish and  nobody found any  anadromous fish; they  found resident                                                               
fish but not  anadromous fish. The reason it was  sampled so much                                                               
is that ADF&G  thought it looked like fish should  be there. Then                                                               
both gas line projects proposed to  go through the same place and                                                               
so both ASAP  and AKLNG consultants sampled that  creek, as well.                                                               
The  Habitat  Division  went  up  there  and  still  didn't  find                                                               
anything. Prior  to issuance  of the permits  they went  up again                                                               
with DOTPF and  didn't find anything. It came time  to permit the                                                               
project and he  sent a biologist up there one  more time, because                                                               
he was there anyway. He put a  minnow trap in that stream and got                                                               
two juvenile cohos. So, it  took five sampling events to identify                                                               
anadromous  fish. When  it looks  fishy, the  department will  do                                                               
everything it can to get in  and try to document anadromous fish.                                                               
Culverts  are  still required  to  provide  fish passage  whether                                                               
there is  an anadromous system  or not;  fish passage is  for all                                                               
fish.                                                                                                                           
                                                                                                                                
4:13:33 PM                                                                                                                    
SENATOR WIELECHOWSKI asked the average cost to survey a stream.                                                                 
                                                                                                                                
MR. BENKERT guessed a typical survey  would be one guy for a day,                                                               
whatever that  would cost, but  remote locations  with helicopter                                                               
supported surveys get expensive really quick.                                                                                   
                                                                                                                                
He said the process of how they issue Fish Habitat Permits is:                                                                  
-The applicant submits a plan and specifications to the division                                                                
-The division  reviews the  plans and  consults with  other staff                                                               
and divisions for what they know and have concerns about                                                                        
-The  division works  with  the  proponent to  try  to avoid  any                                                               
impacts if  there are  special concerns and  negotiates to  get a                                                               
better project.                                                                                                                 
                                                                                                                                
The  timelines  for  issuing permits  vary  widely.  Sometimes  a                                                               
permit  can be  issued  quickly because  it's not  controversial.                                                               
Some projects  take years of  pre-project permitting just  to get                                                               
to the place  where they can put in an  application. That usually                                                               
occurs  on a  large project.  A complicated  project for  a large                                                               
bridge project  with multiple components would  require more back                                                               
and forth  with engineering and  environmental staff at  DOTPF to                                                               
get a  "good handle" as  to what is going  on on the  ground. The                                                               
division has the  ability to issue emergency  exemptions under AS                                                               
16.05.891 such  as in  the instances  of flooding  and preventing                                                               
washouts of bridges.                                                                                                            
                                                                                                                                
4:17:34 PM                                                                                                                    
MR.   BENKERT  said   their  permits   have   a  couple   typical                                                               
stipulations for protection of the  resources; timing windows for                                                               
construction projects is a major  one. The standard window is May                                                               
15-July  15, because  the smolts  have already  migrated out  and                                                               
there is typically  no eggs in the gravel and  the adults haven't                                                               
returned  to spawn.  Their  highest bar  is  to protect  spawning                                                               
fish.                                                                                                                           
                                                                                                                                
The diversion fish passage bypass  has the same stipulations. The                                                               
diversion  plan  has  to  be  approved  to  ensure  fish  passage                                                               
continuously through  the project. They work  with the Department                                                               
of  Environmental  Conservation  (DEC) on  sediment  control  and                                                               
require  revegetation and  stabilization of  any bare  banks with                                                               
native vegetation  to make  sure they get  a jump-start  on being                                                               
stabilized.                                                                                                                     
                                                                                                                                
The department  requires notification from these  projects before                                                               
they divert, so  a biologist can go out and  make sure everything                                                               
is  being done  properly. The  division can  remove the  fish for                                                               
them  if  they know  in  advance  of  the project.  They  inspect                                                               
continuously to  make sure  that the  project follows  the permit                                                               
explicitly and adjust for problems.  They can issue field permits                                                               
if a  project runs into a  problem: if a solution  looked good on                                                               
paper but  didn't turn out so  good on the ground,  for instance.                                                               
This would avoid shutting the  project down and going through the                                                               
application process again.                                                                                                      
                                                                                                                                
4:19:47 PM                                                                                                                    
MR.  BENKERT  said  that concluded  his  explanation  of  current                                                               
business  practices.  Their  cost  statement  contained  the  new                                                               
duties  and  functions  if  the  initiative  passes.  First,  the                                                               
initiative presumes  anadromy on  all waters and,  therefore, any                                                               
waters in adjacent  riparian areas are subject  to the Anadromous                                                               
Fish Act. Currently, their jurisdiction  is at the ordinary high-                                                               
water  mark; they  have little  jurisdiction  in riparian  areas.                                                               
They currently don't  catalogue a stream that is  connected to an                                                               
anadromous stream;  they need a "fish  in hand" to show  a stream                                                               
really contains anadromous fish.                                                                                                
                                                                                                                                
The way  the initiative is  written, if the  proponents disagreed                                                               
with the  assumption that it's  an anadromous system,  they could                                                               
request  a site-specific  determination  that his  staff or  some                                                               
qualified biologist would  have to go out and  determine. That is                                                               
an unknown cost  as they don't know how exactly  that would work,                                                               
yet.                                                                                                                            
                                                                                                                                
CHAIR  GIESSEL  said  he mentioned  that  they  don't  categorize                                                               
waterbodies that are  above a certain elevation and  asked if the                                                               
initiative would require the department to do that.                                                                             
                                                                                                                                
MR.   BENKERT  replied   that  is   the   assumption:  it's   not                                                               
specifically clear,  but the way  it's written, all  waters would                                                               
be anadromous.                                                                                                                  
                                                                                                                                
4:22:27 PM                                                                                                                    
One  of the  big components  of  the initiative  is developing  a                                                               
public  notice process  and it  requires  noticing "all  permits,                                                               
applications,  or  amendments  to   permits."  It  also  requires                                                               
separate  permits  for  many diminimous  activities  now  covered                                                               
under a general permit (for things  that a lot of people do). For                                                               
instance, a  known anadromous  stream crossing,  because it  is a                                                               
good  place to  cross. The  department  doesn't want  to have  to                                                               
issue  250 permits  to  individuals who  cross  that stream.  The                                                               
general permit  has stipulations to  make sure they  are crossing                                                               
the stream  correctly and  the initiative  would require  them to                                                               
notice those,  as well. Also, they  are not sure what  "any major                                                               
anadromous  habitat permit  assessments"  means,  but they  would                                                               
need  to go  out and  determine if  fish were  there potentially.                                                               
It's unclear  what that would entail,  but it is obviously  a new                                                               
duty  that  requires figuring  out  the  intent. Any  major  fish                                                               
habitat applications  not just the  permit would also have  to be                                                               
noticed.                                                                                                                        
                                                                                                                                
4:23:50 PM                                                                                                                    
SENATOR BISHOP asked how long the  public notice period is and if                                                               
that decision is left up to him.                                                                                                
                                                                                                                                
MR. BENKERT replied  if the initiative were to  pass, he believes                                                               
that a  regulation package  would have to  be developed  to guide                                                               
some of  the general  requirements and  that would  include those                                                               
timelines.                                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI referred  to  section 3  of the  initiative                                                               
that  says,   "The  commissioner  shall  specify   in  regulation                                                               
anadromous fish habitat". So, he  presumes the commissioner could                                                               
say anything  above ordinary high-water  (OHW) could  be presumed                                                               
to not  be anadromous. It  goes on to say  in the absence  of any                                                               
specification   the   commissioner   shall  presume   that   it's                                                               
anadromous,  but  that's  a rebuttable  presumption.  Right?  The                                                               
commissioner  is  given quite  a  bit  of  leeway to  specify  in                                                               
regulation what is anadromous and what's not.                                                                                   
                                                                                                                                
MR. BENKERT responded that that language is vague.                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI  responded that  it says,  "The commissioner                                                               
shall specify in regulation anadromous  fish habitat", and that's                                                               
not vague, at all.                                                                                                              
                                                                                                                                
4:25:58 PM                                                                                                                    
MR. BENKERT  continued that the initiative  would require written                                                               
authorization  for an  individual  to operate  under the  general                                                               
permit, and that's  not necessarily the case  now. Currently, the                                                               
department  requires having  the  permit in  one's possession  to                                                               
know what  the rules are,  but it  doesn't need to  be authorized                                                               
prior to its use.                                                                                                               
                                                                                                                                
New duties they would have  to perform under the initiative would                                                               
be determine  whether a fish habitat  permit is a major  or minor                                                               
permit  (page 3)  and that  criteria is  unclear. The  department                                                               
would have to  respond and address all the public  input on major                                                               
fish habitat  permits. It would  also have to collect  fees equal                                                               
to the  cost of service  for major permits, which  would probably                                                               
apply to the site-specific determinations  he alluded to earlier.                                                               
They do not currently have such a fee schedule.                                                                                 
                                                                                                                                
The  department would  have to  determine  whether a  performance                                                               
bond is necessary for a  project, something they currently do not                                                               
do  (DNR  and DEC  have  that  ability,  but ADF&G  doesn't)  and                                                               
determine  if  the  proposed  activities   are  likely  to  cause                                                               
substantial  damage  to  anadromous habitat,  something  they  do                                                               
currently  but the  initiative's  guidelines would  be much  more                                                               
codified.  It would  have  to determine  if  the anadromous  fish                                                               
habitat will  recover if restored  within a reasonable  period of                                                               
time.                                                                                                                           
                                                                                                                                
MR. BENKERT said  under the initiative, regulation  would have to                                                               
specify what  activities do not  require a permit and  that would                                                               
be an  interesting list  to develop, because  they would  have to                                                               
come up  with everything  that wouldn't require  a permit  and if                                                               
it's not on the list, then it does require a permit.                                                                            
                                                                                                                                
4:28:07 PM                                                                                                                    
In conclusion,  Mr. Benkert said,  the passage of  the initiative                                                               
would  require  hiring  of  additional  staff  including  habitat                                                               
biologists,  an analyst  programmer, and  program technicians  to                                                               
implement and  handle the additional  workloads. They  also think                                                               
it would  be a good  idea to  have a public  education component,                                                               
just  to let  the public  know  the department  has expanded  its                                                               
jurisdictional authority and that  folks that didn't need permits                                                               
before would need them now.  The department believes a regulation                                                               
package would be  required as a companion to  this initiative and                                                               
that could  take at least  two years working with  the Department                                                               
of Law  (DOL), and then the  legislature would have to  adopt the                                                               
new regulations; then they would have to be implemented.                                                                        
                                                                                                                                
4:29:15 PM                                                                                                                    
SENATOR  MEYER  asked  what   he  anticipates  implementing  this                                                               
initiative would cost and commented  that it could affect several                                                               
current development projects, which  could mean they won't happen                                                               
and jobs would be lost in the process.                                                                                          
                                                                                                                                
MR.  BENKERT replied  that they  have estimated  implementing the                                                               
initiative would  cost $1.3  million per  year for  several years                                                               
until it  gets up and  running. Obviously, they would  still need                                                               
to hire  and maintain a  higher level of  staff to work  with the                                                               
new statute.                                                                                                                    
                                                                                                                                
SENATOR  MEYER asked  how  much  more it  would  add  to a  major                                                               
project like the gas pipeline.                                                                                                  
                                                                                                                                
MR. BENKERT replied  that a major project like that  would have a                                                               
reimbursable services agreement (RSA)  attached to it already, so                                                               
the state  is compensated for its  time. It may cost  the project                                                               
applicant  more money,  because of  the additional  criteria they                                                               
would  have to  look at.  It would  not cost  the department  any                                                               
additional money.                                                                                                               
                                                                                                                                
SENATOR MEYER  said the  state is  the one  who owns  the project                                                               
now, so it would cost the state a lot more.                                                                                     
                                                                                                                                
MR. BENKERT agreed  and added that another good  example would be                                                               
the Susitna Hydro project.                                                                                                      
                                                                                                                                
SENATOR MEYER commented  that it would also impact  all the DOTPF                                                               
roads and projects.                                                                                                             
                                                                                                                                
MR. BENKERT agreed  and added that the true  cost of implementing                                                               
the initiative is unknown at this point.                                                                                        
                                                                                                                                
4:31:51 PM                                                                                                                    
SENATOR VON IMHOF  asked if the current system is  working and if                                                               
the proposed changes to Title 16 would make it better or worse.                                                                 
                                                                                                                                
MR.  BENKERT replied  that the  current system  is working;  they                                                               
have  permitted many  projects throughout  the state  and haven't                                                               
had too many problems with those  projects. It is a large concept                                                               
to evaluate.                                                                                                                    
                                                                                                                                
CHAIR GIESSEL asked Commissioner Cotten what he thought.                                                                        
                                                                                                                                
COMMISSIONER COTTEN  responded that the  answer is in the  eye of                                                               
the beholder.  Some view it  as an improvement; others  feel that                                                               
things are working fine now. It's a matter of opinion.                                                                          
                                                                                                                                
SENATOR VON IMHOF said she was asking his opinion.                                                                              
                                                                                                                                
COMMISSIONER COTTEN said  they are cautioned to not  appear to be                                                               
an advocate for or against the initiative.                                                                                      
                                                                                                                                
CHAIR GIESSEL reminded committee  members that asking his opinion                                                               
is crossing a line.                                                                                                             
                                                                                                                                
4:34:14 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  what   ADF&G  currently  allows  as                                                               
mitigation for damage to salmon habitat.                                                                                        
                                                                                                                                
MR. BENKERT  replied the department  follows the  same mitigation                                                               
sequence  as other  state departments  and federal  agencies, and                                                               
the number  one thing is to  avoid an impact altogether.  Then to                                                               
minimize -  negotiate to try to  get certain components of  it to                                                               
change so  that it's not going  to create much of  an issue. What                                                               
can't be  minimize they mitigate  for. Mitigation is  crafted for                                                               
each individual project;  it all depends on what  kind of project                                                               
it is and what is  available to mitigate. Often, mitigation can't                                                               
occur in the  immediate vicinity, so they look  at other projects                                                               
as close to  the disturbance as possible.  Replacing bad culverts                                                               
bank  stabilization  could  be a  mitigation  component.  A  good                                                               
example  of this  is the  Fort Knox  Mine in  Fairbanks. Part  of                                                               
their mitigation  15 or 20  years ago was  to reclaim a  bunch of                                                               
old placer  mining sites below the  project and turn them  into a                                                               
beautiful  wetland complex  that  is used  by  fish and  wildlife                                                               
resources extensively.                                                                                                          
                                                                                                                                
4:36:26 PM                                                                                                                    
SENATOR WIELECHOWSKI asked  what he requires of  the permittee if                                                               
there is  damage to  salmon habitat; what  if there  are actually                                                               
fewer salmon?                                                                                                                   
                                                                                                                                
MR.  BENKERT replied  that several  things can  be done:  develop                                                               
alternative habitat  to compensate  for the  loss of  the damaged                                                               
habitat  and artificial  spawning channels  could compensate  for                                                               
some  section of  habitat.  Taking  fish out  of  the picture  is                                                               
something they  don't want to  see, and  they are trying  hard to                                                               
mitigate for  habitat loss,  at the very  least, to  replace what                                                               
has been  disturbed with something  that will function  the same.                                                               
That  could  be   enhancing  a  bad  piece  of   stream  or  bank                                                               
stabilization  for  old placer  mine  sites  that disturbed  fish                                                               
habitat 20 or  30 years ago that will actually  increase the fish                                                               
population. In these cases, the people  who did it are long gone;                                                               
the  guy  conducting  the  mitigation  wasn't  the  cause.  These                                                               
restoration projects are monitored.                                                                                             
                                                                                                                                
4:38:54 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if replacing wild  runs with hatchery                                                               
runs is a successful technique.                                                                                                 
                                                                                                                                
MR. BENKERT replied  that there are some  new hatchery techniques                                                               
that haven't been used in Alaska,  but the West Coast isn't using                                                               
production hatcheries  and it hasn't  worked out on  the Columbia                                                               
River. They  continue to  pump millions  and millions  of dollars                                                               
into those hatcheries without a whole lot of recovery.                                                                          
                                                                                                                                
The National  Marine Fishery Service (NMFS)  and National Oceanic                                                               
and  Atmospheric   Administration  (NOAA)  fisheries   have  been                                                               
working with  local proponents on something  called "conservation                                                               
hatcheries," which  is "a very intense  hatchery situation" where                                                               
they genetically  pair fish  that are at  a low-density  level to                                                               
recover  the  endangered  run.  It   is  a  much  more  selective                                                               
technique as far as developing  a hatchery to not really supplant                                                               
a wild population but to reestablish  it, because they go out and                                                               
try to  find what  is left  of the wild  fish population  and use                                                               
animal  husbandry  to  maintain  that genetic  diversity  and  to                                                               
reestablish that run.                                                                                                           
                                                                                                                                
4:40:14 PM                                                                                                                    
SENATOR  STEDMAN asked  if the  sports and  subsistence fishermen                                                               
and  tourists  who go  up  and  down  the  river banks  on  foot,                                                               
crossing and  kicking dirt in  them and other things,  be subject                                                               
to these  permits. Would a  motorized boat  that has a  jet drive                                                               
need a permit?                                                                                                                  
                                                                                                                                
MR.  BENKERT  replied  that  current  statute  says  a  motorized                                                               
activity  within   an  anadromous  stream,  although   there  are                                                               
exceptions.  On the  Kenai River,  for  instance, local  entities                                                               
have riparian exclusion zones and  have built walk-ways to offset                                                               
human disturbance on  the banks. The department  works with State                                                               
Parks and  local entities to  identify that and try  to remediate                                                               
those sites and get folks going down the right direction.                                                                       
                                                                                                                                
SENATOR  STEDMAN asked  if this  initiative would  change any  of                                                               
that criteria.                                                                                                                  
                                                                                                                                
MR. BENKERT replied that it  depends on the interpretation of the                                                               
wording.                                                                                                                        
                                                                                                                                
SENATOR COGHILL  said in many  of the spawning areas  people will                                                               
be  floating  in  canoes  and other  shallow  draft  boats;  many                                                               
somehow  disturb the  bottom and  asked if  that would  be a  new                                                               
issue he would have to look at.                                                                                                 
                                                                                                                                
MR. BENKERT replied it could be.                                                                                                
                                                                                                                                
4:43:27 PM                                                                                                                    
SENATOR BISHOP asked how he  would rank ADF&G's permitting system                                                               
with the peers he interacts with.                                                                                               
                                                                                                                                
MR. BENKERT replied that he is  familiar only with a couple other                                                               
states' permitting systems and Alaska  is the only state that has                                                               
the  two-tiered system  differentiating  between anadromous  fish                                                               
and resident fish.  California deals with all fish  the same way.                                                               
Alaska has  chosen to elevate  the protection of  anadromous fish                                                               
above the resident fish in the state.                                                                                           
                                                                                                                                
SENATOR  BISHOP remarked  that the  record salmon  runs over  the                                                               
years proves that point.                                                                                                        
                                                                                                                                
CHAIR GIESSEL followed  up on what she heard  Senator Stedman ask                                                               
about the map with the  yellow dots indicating anadromous streams                                                               
and asked if subsistence hunters  that cross streams all the time                                                               
on ATVs will need to get permits and how would that be managed.                                                                 
                                                                                                                                
MR. BENKERT replied  they probably would unless there  is a site-                                                               
specific  determination  requiring  an  anadromous  fish  habitat                                                               
permit.  He  clarified that  the  yellow  dots indicate  sampling                                                               
points.                                                                                                                         
                                                                                                                                
4:46:07 PM                                                                                                                    
SENATOR  WIELECHOWSKI said  on the  point of  boats going  up and                                                               
down  and people  walking  along the  rivers,  that AS  16.05.871                                                               
basically  says the  same thing:  if  you're going  to operate  a                                                               
wheeled,  track,  or excavating  equipment;  if  you're going  to                                                               
pollute, change  the flow of a  bed or specified river,  lake, or                                                               
stream;  divert, use,  or obstruct:  those all  currently require                                                               
contacting the commissioner.                                                                                                    
                                                                                                                                
MR. BENKERT replied that is correct  if that water body is in the                                                               
Anadromous Waters Catalogue.                                                                                                    
                                                                                                                                
CHAIR GIESSEL  thanked him for the  very interesting presentation                                                               
and  Commissioner  Cotten for  being  before  the committee.  She                                                               
invited  the Department  of Environmental  Conservation (DEC)  to                                                               
provide its presentation next.                                                                                                  
                                                                                                                                
4:47:19 PM                                                                                                                    
WADE  STRICKLAND,  Manager,  Wastewater  Discharge  Authorization                                                               
Program (WDAP),  Department of Environmental  Conservation (DEC),                                                               
said his  presentation is structured to  give a little bit  of an                                                               
overview of water  quality standards (WQS), which  is their basis                                                               
for protecting  aquatic and  wild life,  the statutory  and legal                                                               
framework for the  permitting program, the nuts and  bolts of the                                                               
permitting program,  and a  closing slide on  the impacts  of the                                                               
initiative.                                                                                                                     
                                                                                                                                
MR. STRICKLAND  said Alaska water quality  standards are science-                                                               
based  and the  main way  that DEC  maintains and  protects water                                                               
quality and habitat.  They designate existing uses  of the water,                                                               
which includes  protection of  all life  stages of  aquatic life.                                                               
They establish  acceptable levels  of pollutants known  as "water                                                               
quality  criteria."  That is  done  both  numerically (parts  per                                                               
million (ppm)  and narratively  (you shall not  cause a  sheen on                                                               
the  water  body). A  third  prong  of  the  WQS talks  about  an                                                               
enhanced review for discharges to high quality waters.                                                                          
                                                                                                                                
Water Quality Standards  (WQS) are set through  a public process.                                                               
They are  public noticed,  which includes  a response  to comment                                                               
document on the  regulations (regs). The Department  of Law (DOL)                                                               
reviews the  regs for consistency; the  commissioner adopts them,                                                               
and the  lieutenant governor  files them; and  then the  regs are                                                               
actually sent to the Environmental  Protection Agency (EPA). They                                                               
can't be  used in  the APDES permitting  process until  they have                                                               
been  approved  by   the  EPA.  Their  approval   process  is  in                                                               
consultation  with  other  federal services,  endangered  species                                                               
service agencies, and tribes.                                                                                                   
                                                                                                                                
Water  quality standards  are used  to  identify polluted  waters                                                               
through  stream   and  other  water  body   sampling  events.  To                                                               
recognize  high   quality  waters,  the  numeric   and  narrative                                                               
limitations are then  transposed into the permits  to ensure that                                                               
any  discharges  are  authorized   such  that  they  protect  and                                                               
maintain water quality.  The WQS themselves are found  in the R70                                                               
regulations.                                                                                                                    
                                                                                                                                
4:50:58 PM                                                                                                                    
MR. STRICKLAND  said the  Alaska Pollutant  Discharge Elimination                                                               
System Program  (APDES) stems  from the Clean  Water Act  and the                                                               
National Pollutant Discharge  Elimination System Program (NPDES).                                                               
Section 402 of  the Clean Water Act Program  authorizes states to                                                               
request approval  to administer the NPDES.  Forty-six states have                                                               
that authorization. Alaska  was the 46th state to get  it, and as                                                               
of July 1, Idaho will be the 47th state.                                                                                        
                                                                                                                                
4:51:46 PM                                                                                                                    
MR.  STRICKLAND said  DEC started  working to  secure primacy  to                                                               
administer  the NPDES  in the  late 1990s  and after  a long  and                                                               
involved process,  received authority  to administer  the program                                                               
beginning in  October 2008.  The program was  taken over  in four                                                               
phases; the  fourth and final  phase was the transfer  in October                                                               
2012.  Statutory authority  is  provided in  AS  46.03 and  APDES                                                               
regulations are found in chapter 83.                                                                                            
                                                                                                                                
He  said approximately  4,000 facilities  are  covered under  the                                                               
APDES Program: they have both  individual and 26 general permits,                                                               
which authorize 3,400  of them. The types of  facilities that are                                                               
covered  are  oil and  gas,  mining,  seafood, timber,  municipal                                                               
treatment  works, discharges  from  power generating  facilities,                                                               
and many more.                                                                                                                  
                                                                                                                                
4:53:17 PM                                                                                                                    
Under the  Clean Water Act  (CWA), the permits are  restricted to                                                               
only five years.  So, sometime  in the fourth year the department                                                               
receives  a permit  renewal application  from the  proponent. DEC                                                               
reviews the  application to  see if anything  has changed  at the                                                               
facility  and  what  the  potential  impacts  of  the  wastewater                                                               
discharge  is   to  the  receiving   water.  They   consider  the                                                               
pollutants that  would be discharged and  special characteristics                                                               
of the receiving water and any aquatic life that are present.                                                                   
                                                                                                                                
4:53:33 PM                                                                                                                    
Slide 18                                                                                                                        
For  discharges to  fresh water  they  review ADF&G's  Anadromous                                                               
Waters  Catalogue to  determine if  the water  body is  listed as                                                               
anadromous.  If  the water  body  is  listed as  anadromous,  the                                                               
permittee is not eligible to  receive a mixing zone per currently                                                               
approved EPA water quality standards.  A mixing zone is a limited                                                               
area in the water body where  wastewater is allowed to mix in the                                                               
near area  of the outfall  with the ambient water  before meeting                                                               
state  water   quality  criteria.  If  the   area  is  determined                                                               
anadromous, the  WQS basically say  no mixing zone  is authorized                                                               
and all the  state water quality criteria must be  met at the end                                                               
of the pipe.                                                                                                                    
                                                                                                                                
4:54:31 PM                                                                                                                    
Slide 19                                                                                                                        
MR.  STRICKLAND said  this slide  includes some  of the  standard                                                               
provisions in an  APDES permit. The permits  are customized based                                                               
on the industry  being permitted and whether  there are sensitive                                                               
receiving water  requirements. These can fluctuate  but generally                                                               
that is what one sees in a permit.                                                                                              
                                                                                                                                
The  first page  of the  permit has  his signature  on it,  which                                                               
makes it a legal document,  and says the permittee is responsible                                                               
for  complying.    The  permit has  both  numeric  and  narrative                                                               
limitations on the discharge.  Industrial permits, especially for                                                               
oil  and  gas  and  mining,   require  the  entire  facility  and                                                               
treatment to use best management  practices and to operate at the                                                               
most optimal  level. Municipal treatment plants  have operational                                                               
plans with very similar requirements.                                                                                           
                                                                                                                                
The  NPDES or  the APDES  program per  the Clean  Water Act  is a                                                               
self-monitoring and  reporting program. The permit  has extensive                                                               
monitoring, record  keeping, and reporting  requirements. Because                                                               
it's a legal  document, the reporting requirements  are under the                                                               
penalty of  perjury. All APDES  permits have  standard conditions                                                               
including  duty  to   comply  and  duty  to   allow  DEC  on-site                                                               
inspections.                                                                                                                    
                                                                                                                                
MR. STRICKLAND  said their permits  come with annual  or one-time                                                               
fees.                                                                                                                           
                                                                                                                                
4:57:13 PM                                                                                                                    
Slide 20                                                                                                                        
He  said  their individual  and  general  permits  go out  for  a                                                               
variety of  different reviews. A  letter to  potentially affected                                                               
tribes  and local  governments in  the area  of the  discharge is                                                               
sent. All the  governments and tribes are  notified for statewide                                                               
general permits.                                                                                                                
                                                                                                                                
They  then prepare  the  draft  permit and  provide  that to  the                                                               
permittee and  state and federal  agencies for a  10 business-day                                                               
applicant review period. During that  time, the DEC can meet with                                                               
anyone who wants  to discuss the permit  documents, although they                                                               
do  not  respond to  those  comments  in  writing. It's  more  of                                                               
working with  stakeholders to further  develop the next  stage of                                                               
the draft  permit, and that  is the  permit that is  released for                                                               
public notice. The  draft permit is associated with  a fact sheet                                                               
that  describes the  legal and  technical basis  for the  permit.                                                               
They are public noticed for a  minimum of 30 days. Typically, the                                                               
more complex  general permits are  extended and depending  on the                                                               
season,  if they  are  proposing  to go  to  public  notice on  a                                                               
seafood  permit in  the middle  of  summer, they  will extend  it                                                               
because  everyone is  busy with  competing  priorities. So,  they                                                               
often do 60-day public notices for general permits.                                                                             
                                                                                                                                
All major and  general permits are public noticed  in a newspaper                                                               
of local  circulation. For statewide general  permits, that means                                                               
hitting Juneau,  Anchorage, Fairbanks, and sometimes  for oil and                                                               
gas permits the North Slope will be included.                                                                                   
                                                                                                                                
The program  description in  their 83  regulations for  the APDES                                                               
program  talk about  having public  meetings and  hearings should                                                               
there  be significant  interest or  if the  department determines                                                               
that it's appropriate  to do so. After that, they  will prepare a                                                               
formal  written response,  the comment  document,  for all  major                                                               
comments.  They will  then issue  a proposed  final permit  for a                                                               
five-day applicant  review, which isn't like  the comment period.                                                               
It is  more of "this is  their last chance  to take a look  at it                                                               
and meet with  us to make sure they understand  the intent of the                                                               
permit, and  catch any typographical  errors, and things  of that                                                               
nature." Then they issue the permit.                                                                                            
                                                                                                                                
4:59:59 PM                                                                                                                    
Slide 21                                                                                                                        
Once  the permit  is issued  (for up  to five  years), if  anyone                                                               
disagrees with his decision, they  can administratively appeal to                                                               
the  commissioner,  and after  a  certain  time  if they  do  not                                                               
administratively appeal, then they can appeal to Superior Court.                                                                
                                                                                                                                
5:00:33 PM                                                                                                                    
Slide 22                                                                                                                        
During  the five-year  permit cycle,  a  separate Compliance  and                                                               
Enforcement  Program  will  inspect  the  facilities  during  the                                                               
permit  term.   They  will  review  records,   both  on-site  and                                                               
submitted reports  during the permit  term. Because it's  a self-                                                               
monitoring report  program, there is  an emphasis on  making sure                                                               
all the submittals are definitely looked at in the permit term.                                                                 
                                                                                                                                
MR.   STRICKLAND  said   in  the   standard  conditions   and  83                                                               
regulations and at the end of  all permits there is a requirement                                                               
to  timely   notify  DEC  of   any  non-compliance   events  that                                                               
potentially threaten  public health or the  environment. For less                                                               
dire non-compliance events there  is a five-day written follow-up                                                               
instead of a quicker response.                                                                                                  
                                                                                                                                
During the  permit period the  permit can be opened  and modified                                                               
based on  new information, or if  an application was found  to be                                                               
false, it can be terminated.                                                                                                    
                                                                                                                                
5:02:02 PM                                                                                                                    
SENATOR COGHILL asked  if it's up to the permittee  to figure out                                                               
requirements and  commented that the  fact that they  are already                                                               
cooperating extensively at this point is interesting.                                                                           
                                                                                                                                
MR.  STRICKLAND answered  that they  coordinate extensively  with                                                               
ADF&G and DNR on certain  permits with known overlapping areas of                                                               
concern.  For  the  larger  projects  the  OPMP  makes  sure  the                                                               
permittee  is   aware  of  the   state  agencies'   multitude  of                                                               
requirements.                                                                                                                   
                                                                                                                                
5:03:35 PM                                                                                                                    
Slide 23                                                                                                                        
Impacts  to  DEC  relating  to   the  potential  passage  of  the                                                               
initiative:                                                                                                                     
                                                                                                                                
The initiative  has a rebuttable  presumption that all  waters in                                                               
Alaska are anadromous and to be consistent with currently EPA-                                                                  
approved mixing  zone regulations, no dischargers  to fresh water                                                               
would be eligible for a mixing zone.                                                                                            
                                                                                                                                
DEC would have to work with  ADF&G to review all existing permits                                                               
with fresh water  to see if the initiative allows  for a case-by-                                                               
case  analysis  to rebut  the  presumption.  If they  found  that                                                               
facilities  were  discharging   to  anadromous-receiving  waters,                                                               
those facilities  would have to upgrade  their treatment facility                                                               
to meet  water quality  criteria at  the end  of the  pipe, which                                                               
would  increase the  complexity of  the treatment  systems, which                                                               
would  require  engineering  plan   reviewers  to  look  at  more                                                               
detailed plan  sets. It would  require increased  coordination by                                                               
permit writers to work with ADF&G  to look at all these different                                                               
sites and to  draft new permits that would  have new limitations.                                                               
Therefore,  their cost  statement  included hiring  a new  permit                                                               
writer and an engineer.                                                                                                         
                                                                                                                                
5:05:34 PM                                                                                                                    
SENATOR  MEYER  asked  if  their budget  would  increase  if  the                                                               
initiative passes.                                                                                                              
                                                                                                                                
MR. STRICKLAND  answered that  the cost  statement says  it would                                                               
increase by about $270,000.                                                                                                     
                                                                                                                                
SENATOR MEYER asked  if it is safe to assume  that there would be                                                               
additional  cost to  municipalities,  too. For  instance, if  the                                                               
Anchorage  Waste Water  Utility (AWWU)  in Anchorage  upgraded or                                                               
changed their  system, would they  have to meet  this initiative,                                                               
or do  they have to make  the current system meet  the initiative                                                               
as far as the discharge from the end of the pipe.                                                                               
                                                                                                                                
MR.  STRICKLAND  replied  if  a  discharge  is  being  made  into                                                               
anadromous waters  and the treatment  facility is  not sufficient                                                               
to meet water qualify criteria at  the end of the pipe, yes, they                                                               
would have to upgrade. And those tend to be expensive.                                                                          
                                                                                                                                
SENATOR VON IMHOF  asked if there is no upgrade  or change to the                                                               
project,  yet the  permit  is being  renewed,  if the  initiative                                                               
passes, what existing projects would be affected.                                                                               
                                                                                                                                
MR. STRICKLAND  answered that language  at end of  the initiative                                                               
talks about  renewals and indicates that  initiative requirements                                                               
would  be  triggered  based  on permit  renewals.  It's  hard  to                                                               
quantify. Most  large mines  don't have mixing  zones or  if they                                                               
do, the  receiving water has  been sampled robustly  to determine                                                               
if  there were  anadromous  fish to  begin  with. Existing  large                                                               
mines are not of great concern.                                                                                                 
                                                                                                                                
SENATOR VON IMHOF asked about the 4,000 small mines.                                                                            
                                                                                                                                
MR.  STRICKLAND replied  that there  are 4,000  APDES permittees,                                                               
which  includes the  whole spectrum  of oil  and gas  mining, and                                                               
small villages  that discharge. The  existing permits  with their                                                               
diligent  follow-up aren't  of  great concern,  but  a number  of                                                               
facilities  were  inherited from  the  EPA  that are  "backlogged                                                               
permits." Some of those have not  been looked at for a long time,                                                               
and those are more concerning.                                                                                                  
                                                                                                                                
5:09:23 PM                                                                                                                    
CHAIR GIESSEL asked  about the initiative's impacts  on water use                                                               
for ice roads on the North Slope.                                                                                               
                                                                                                                                
MR.  STRICKLAND  replied  that  ice  roads  are  more  of  a  DNR                                                               
function.  However, one  of their  permits  has a  little bit  of                                                               
overlap but they defer largely to DNR.                                                                                          
                                                                                                                                
CHAIR GIESSEL  said she  wanted to follow  up on  Senator Meyer's                                                               
question about the waste water  treatment plant in Anchorage that                                                               
has a  waiver, because they require  a mixing zone. She  asked if                                                               
that  was correct  and if  the initiative  would no  longer allow                                                               
that.                                                                                                                           
                                                                                                                                
MR.  STRICKLAND answered  that the  Anchorage Asplund  Wastewater                                                               
Treatment  Facility  has  a  "Clean Water  Act  Section  301  (h)                                                               
Waiver."  EPA authorized  certain communities  that discharge  to                                                               
marine waters  to apply for these  waivers back in the  1970s and                                                               
he believed the  sunset for application was in the  late 1970s or                                                               
early 1980s. So, no new facilities  can apply for the waiver, but                                                               
as their further  permit reissuance occurs every  five years, EPA                                                               
is required to  look at their waiver and that  is currently being                                                               
evaluated. Those  discharges that  have that  waiver are  only to                                                               
marine  waters,  and  since the  initiative  only  affects  fresh                                                               
water,  he didn't  see a  concern about  the Asplund  mixing zone                                                               
going away.                                                                                                                     
                                                                                                                                
He added  that the  waiver is  to secondary  treatment standards,                                                               
which is  a requirement  for all  publicly owned  treatment works                                                               
and  municipal discharges.  The  waiver says,  "if you  discharge                                                               
from one of these facilities you  have to meet a certain level of                                                               
treatment," but  section 301(h) says  if you have these  types of                                                               
receiving  water  conditions:  high  flushing  or  if  wastewater                                                               
discharge mixes and disburses quickly,  you may not have to spend                                                               
the money to treat to this level.                                                                                               
                                                                                                                                
CHAIR GIESSEL pointed out that salmon  do exist in Cook Inlet and                                                               
asked if  he was  saying the  initiative does  not apply  in that                                                               
fish-bearing water?                                                                                                             
                                                                                                                                
MR.  STRICKLAND replied  his read  is that  the initiative  talks                                                               
about  anadromous  fresh  water. Their  mixing  zone  regulations                                                               
still do contemplate  all life stages of  different aquatic life,                                                               
so they still  would consider the salmon in  that receiving water                                                               
when they look at the mixing zone authorization.                                                                                
                                                                                                                                
CHAIR GIESSEL thanked Mr. Strickland  and Commissioner Hartig for                                                               
their   very   information    presentations   and   invited   DNR                                                               
Commissioner Mack to provide his presentation.                                                                                  
                                                                                                                                
5:13:01 PM                                                                                                                    
Slide 25                                                                                                                        
DNR  COMMISSIONER  MACK  said  the  department's  mission  is  to                                                               
develop,  conserve,  and maximize  the  use  of Alaska's  natural                                                               
resources consistent with the public  interest. Really, what they                                                               
do is manage  all state-owned land, water,  and natural resources                                                               
with the exception of fish and game on behalf of Alaskans.                                                                      
                                                                                                                                
He said they  have an interesting dueling  responsibility: one is                                                               
making  sure  that subsurface  resources  are  maximized for  the                                                               
benefit  of the  State  of Alaska  and  then to  try  to do  that                                                               
consistent  with the  qualities that  all Alaskans  enjoy on  the                                                               
surface.  It's very  clear  from testimony  that  they rely  very                                                               
heavily on  the Alaska  Department of Fish  and Game  (ADF&G) and                                                               
Department of  Environmental Conservation (DEC) when  it comes to                                                               
fish management and water quality and  in many cases, he looks to                                                               
their guidance and expertise.                                                                                                   
                                                                                                                                
5:15:19 PM                                                                                                                    
Slide  26  poses the  question  of  how  DNR contributes  to  the                                                               
protection of fish and wildlife  resources. They have three broad                                                               
land  use  planning  processes in  three  large  categories.  The                                                               
largest  category is  general  state lands,  which  cover a  vast                                                               
majority of the  state's portfolio of land and water.  In most of                                                               
those cases,  some sort of  planning document has  been developed                                                               
over time.  He had  a list of 8 or 10 pages  of the titles to the                                                               
actual  plans and  a short  synopsis. One  of the  most important                                                               
plans  is the  North  Slope area-wide  plan. It  was  a plan  for                                                               
development on the  North Slope put together  in conjunction with                                                               
local communities, stakeholders, and  industry input. The plan is                                                               
obviously  geared  towards resource  development,  but  it has  a                                                               
strong  component of  subsistence  use, as  well,  which is  very                                                               
important to the local communities there.                                                                                       
                                                                                                                                
COMMISSIONER  MACK said  the department  also  has authority  for                                                               
state parks, which are established  by this body through statute.                                                               
In some  cases, the benefit of  a state park is  that legislators                                                               
get to  design what they  want to  see, identify the  contours of                                                               
what the  park will  look like  and the  rules of  engagement and                                                               
use. State Parks has a  broad statutory framework and inside that                                                               
is a  park plan,  and in  many cases,  local advisory  boards and                                                               
people who provide input.                                                                                                       
                                                                                                                                
The department has  forest lands, as well, that  exist on general                                                               
state lands  but are a particular  type of state land,  the State                                                               
Forest, which the department manages.                                                                                           
                                                                                                                                
In addition,  Commissioner Mack  said, they  have land  and water                                                               
authorizations, which are a little  different from what they have                                                               
heard  from ADF&G  and  DEC.  Typically, DNR  is  an agency  that                                                               
parcels out  leases and manages  and authorizes uses of  land and                                                               
water. When they  sit at the table and  contemplate those permits                                                               
and authorizations, they  are really looking to ADF&G  and DEC to                                                               
decide  what the  impacts  are  with respect  to  fish and  water                                                               
quality standards.  His job  is to contemplate  what the  term of                                                               
the lease  is, what its  benefit are,  and what the  access terms                                                               
are.                                                                                                                            
                                                                                                                                
COMMISSIONER MACK stated  that in Alaska it  sometimes feels like                                                               
the process has dueling plans. DRN  is the prime state agency for                                                               
creating  land  use   plans  and  in  many   cases,  the  federal                                                               
government - the  National Park Service (NPS), the  U.S. Fish and                                                               
Wildlife Service  (USFWS) (which has  a plan for the  1002 area),                                                               
the Bureau  of Land  Management (BLM) has  a plan  which includes                                                               
the  National  Petroleum  Reserve-Alaska (NPR-A)  and  the  Kenai                                                               
Wildlife Refuge.  So, the department  often looks at  the state's                                                               
objectives in broad terms and makes  sure they are working on the                                                               
plans as the state develops and continues to grow.                                                                              
                                                                                                                                
5:19:06 PM                                                                                                                    
Slide 27                                                                                                                        
HEIDI   HANSEN,  Deputy   Commissioner,  Department   of  Natural                                                               
Resources (DNR),  Juneau, Alaska, said  this slide speaks  to the                                                               
fact  that  by  statute  DNR  is required  to  prepare  land  use                                                               
management plans that  cover the use and management  of the land.                                                               
Area  plans  are generally  the  broadest  plans; the  management                                                               
plans cover  areas that have  high use  such as the  Hatcher Pass                                                               
Management Plan. Site-specific plans  are utilized in areas where                                                               
there isn't an existing area or management plan.                                                                                
                                                                                                                                
5:19:55 PM                                                                                                                    
Slide 28 flags the coordination  between the Alaska Department of                                                               
Fish and  Game (ADF&G)  and the  Department of  Natural Resources                                                               
(DNR). DNR's land use  planning processes incorporate significant                                                               
opportunities  for agency  and public  participation and  comment                                                               
throughout the process.                                                                                                         
                                                                                                                                
5:20:31 PM                                                                                                                    
She said  slide 29 speaks  to some  of the activities  related to                                                               
state parks, which include habitat  for fish and wildlife. In the                                                               
instance of  the Kenai  River Special Management  Area, a  lot of                                                               
riverbank restoration  work, boardwalks, and  infrastructure were                                                               
put  into  place  to  protect  habitat.  This  was  all  done  in                                                               
consultation  with ADF&G.  Signage that  echoes the  conservation                                                               
message is coordinated, as well.                                                                                                
                                                                                                                                
MS. HANSEN said  the Fish and Game Troopers and  Park Rangers are                                                               
all authorized  to enforce  fish and  game regulations,  which is                                                               
seen predominantly in the Kenai, but happens all over Alaska.                                                                   
                                                                                                                                
5:21:53 PM                                                                                                                    
Slides 30 & 31                                                                                                                  
KYLE MOSELLE,  Associate Director,  Office of  Project Management                                                               
and  Permitting (OPMP),  Department of  Natural Resources  (DNR),                                                               
Juneau, Alaska,  continued explaining  that the  Forest Resources                                                               
and Practices Act  (FRPA) applies to all non-federal  land in the                                                               
state of Alaska and legislatively  designated state forest lands.                                                               
The specific  intent in  FRPA relates  to protection  of riparian                                                               
areas  from  significant  adverse  effects  from  timber  harvest                                                               
activities  and  provides  for   adequate  preservation  of  fish                                                               
habitat.  Those are  balanced  with  economic activities  derived                                                               
from forest resources.  This sets up a situation  where they need                                                               
to work with partner agencies,  ADF&G and DEC, to fully implement                                                               
the intent.                                                                                                                     
                                                                                                                                
He said  the Board of Forestry  oversees FRPA and has  a spectrum                                                               
of interests  ranging from  conservation to  timber to  mining to                                                               
wildlife interests. He said ADF&G,  DNR, and DEC together hold up                                                               
FRPA.                                                                                                                           
                                                                                                                                
5:23:39 PM                                                                                                                    
Slide 32: Land and Water Authorizations                                                                                         
MR. MOSELLE  said a  lot of  uses are  generally allowed  uses by                                                               
state  regulation. A  provision in  11 AAC  96.025 speaks  to all                                                               
those  generally allowed  uses  which do  not  require a  written                                                               
authorization; it  says, "must minimize  disturbance to  fish and                                                               
wildlife resources."                                                                                                            
                                                                                                                                
The  written  permits,  authorizations,  and  approvals  cover  a                                                               
number of things:  floating docks, weirs, uses  of water, mineral                                                               
exploration, placer  mining, and  a gamut of  uses on  state land                                                               
and  water. The  DNR Division  of  Mining, Land,  and Water  will                                                               
consult with DEC and ADF&G  on enforceable conditions that can be                                                               
added  to  the written  authorizations  for  those activities  if                                                               
there  is  a need  to  address  a  fish  or wildlife  habitat  or                                                               
possible  impact issue  to  those resources.  The  same goes  for                                                               
easements and leases,  he said, but those have a  higher level of                                                               
authorization because it is an  individual right to the person or                                                               
entity.                                                                                                                         
                                                                                                                                
SENATOR VON IMHOF  said she feels like they  have a comprehensive                                                               
understanding  of land  and water  authorizations and  permits go                                                               
with  the other  departments, and  it looks  like the  process is                                                               
working.  It protects  salmon and  allows  commerce to  continue:                                                               
people  can build  a dock,  enjoy  a recreational  cabin, make  a                                                               
living placer  mining, hunting, trapping, and  guiding. She asked                                                               
what needs to be fixed.                                                                                                         
                                                                                                                                
MR.  MOSELLE  responded  that  he  shared  her  perspective.  The                                                               
agencies  do  well  as  far  as recognizing  that  each  one  has                                                               
individual authorities,  yet from  a users' perspective  they are                                                               
overlapping authorities and subject them  to a number of laws and                                                               
regulations.  If an  individual user  contacts one  of the  three                                                               
agencies here  today, that agency  will put them in  contact with                                                               
the others  and give them a  brief explanation of what  they need                                                               
to  do. Larger  projects need  a conscious  effort to  coordinate                                                               
agencies  and  that's  where  OPMP comes  into  play.  The  three                                                               
agencies strive to work together  at the various levels; it's not                                                               
by accident.                                                                                                                    
                                                                                                                                
SENATOR VON IMHOF said interagency  coordination is happening now                                                               
and this initiative doesn't necessarily create it.                                                                              
                                                                                                                                
MR. MOSELLE  replied yes; that coordination  is already happening                                                               
at  various  levels. The  initiative  will  affect the  statutory                                                               
authority  of only  one of  the  three agencies,  ADF&G, but  the                                                               
interagency  piece will  continue.  The need  to  work with  that                                                               
department  will  not  change,  but their  level  of  review  and                                                               
activity might.                                                                                                                 
                                                                                                                                
5:28:49 PM                                                                                                                    
SENATOR  COGHILL said  it looks  like OPMP  would go  into places                                                               
where an  extensive review  is needed  like for  an Environmental                                                               
Impact  Statement (EIS)  and  permits are  already  open to  very                                                               
extensive reviews. Was he missing something?                                                                                    
                                                                                                                                
MR.  MOSELLE   replied  that  he  wasn't   missing  anything  but                                                               
clarified  that the  Environmental  Impact Statement  (EIS) is  a                                                               
document that  stems from the  National Environmental  Policy Act                                                               
(NEPA), a  federal law that  is triggered  in one of  three ways:                                                               
that the proposed  activity is on federal land,  that it requires                                                               
a federal authorization, or it is  using federal funds. It is not                                                               
a state process.  However, when NEPA is triggered  for a proposed                                                               
activity, the state  has a framework that allows  the three state                                                               
agencies to plug into that  process as a cooperating agency. That                                                               
gets  to the  question of  how the  state authorizations  fold in                                                               
with   the   federal   process  for   reviewing   the   potential                                                               
environmental impacts.                                                                                                          
                                                                                                                                
SENATOR COGHILL  said he knows  that almost everything  that uses                                                               
water  in  Alaska has  to  go  through a  404-wetland  mitigation                                                               
permitting process that gets nearly to a level of an EIS.                                                                       
                                                                                                                                
MR. MOSELLE  responded that Alaska  has around 63 percent  of the                                                               
nation's wetlands, so it's' fairly  hard to do anything in Alaska                                                               
that  doesn't  require a  404  authorization  from the  Corps  of                                                               
Engineers.                                                                                                                      
                                                                                                                                
SENATOR  COGHILL said  he  was just  trying  to demonstrate  that                                                               
almost everything  done in Alaska  is either  greenfield, federal                                                               
land,  or  some  land  use   planning  that  requires  a  lot  of                                                               
oversight.                                                                                                                      
                                                                                                                                
5:31:42 PM                                                                                                                    
SENATOR WIELECHOWSKI asked  if DNR lets the U.S.  Army Corps move                                                               
forward on  an expedited schedule  with NEPA permitting  when use                                                               
of state lands and waters has not been authorized by Alaska.                                                                    
                                                                                                                                
COMMISSIONER  MACK  asked if  he  was  referring to  the  project                                                               
proposed by Pebble.                                                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI replied either that or any other project.                                                                  
                                                                                                                                
COMMISSIONER  MACK answered  they work  with stakeholders  in the                                                               
state  to ensure  that if  a federal  project is  impacting state                                                               
lands that they appropriately participate.  The recent issue that                                                               
has  come  up is  a  scoping  period  proposed  by the  Corps  of                                                               
Engineers with  respect to  that project, and  the DNR  has asked                                                               
for more  time to be  included in the  process to make  sure that                                                               
stakeholders have a very thorough chance to engage.                                                                             
                                                                                                                                
As  a general  matter, DNR  deals with  large projects  in Alaska                                                               
that typically  have some federal component  triggering NEPA. The                                                               
next  part of  the analysis  is whether  an Environmental  Impact                                                               
Statement (EIS)  or an  EA is  needed, and  the state  is usually                                                               
heavily engaged in  those. The department makes  sure the state's                                                               
voice  is heard  and  makes  clear what  they  think the  federal                                                               
agencies  should do  and  how  they should  do  it. Some  federal                                                               
agencies are easier to work with than others.                                                                                   
                                                                                                                                
5:34:31 PM                                                                                                                    
SENATOR WIELECHOWSKI  said the legislature  has issued  dozens of                                                               
resolutions in support  of development in the ANWR  and the NPRA,                                                               
but the  state has  not authorized the  Pebble Mine  Project. So,                                                               
why  would  the  state allow  the  Army  Corps  to  go in  on  an                                                               
expedited basis to work on it?                                                                                                  
                                                                                                                                
COMMISSIONER MACK replied they have  asked for additional time in                                                               
the  scoping process  for that  project and  he thinks  the state                                                               
should speak  about the project, because  it is an issue  of high                                                               
public concern in  Alaska. Their general perspective  is that the                                                               
Corps of  Engineers has been  an agency which has  worked through                                                               
many delicate issues in Alaska,  but every project comes with its                                                               
characteristics  and  the  department  will make  sure  that  the                                                               
state's interest  in that case  - it's on  state land -  is fully                                                               
engaged.                                                                                                                        
                                                                                                                                
SENATOR BISHOP remarked that some  folks differ with the Corps of                                                               
Engineers' interpretation  of the  '87 field  manual's definition                                                               
of wetlands.                                                                                                                    
                                                                                                                                
CHAIR  GIESSEL asked  if permitting  for ice  roads will  be more                                                               
stringent if the initiative passes.                                                                                             
                                                                                                                                
5:37:12 PM                                                                                                                    
BRENT  GOODRUM, Director,  Division of  Mining, Land,  and Water,                                                               
Department  of   Natural  Resources  (DNR),   Fairbanks,  Alaska,                                                               
answered  that  whenever  the water  resources  section  gets  an                                                               
application for water use, they  always contact ADF&G and DEC. If                                                               
the  initiative passes,  ADF&G's  requirements  might change  and                                                               
that could impact permitting for ice roads on the North Slope.                                                                  
                                                                                                                                
5:38:20 PM                                                                                                                    
CHAIR  GIESSEL asked  if  the generally  allowed  uses listed  on                                                               
slide 32 would change under the initiative.                                                                                     
                                                                                                                                
MR.  MOSELLE  replied  that  they  wouldn't  necessarily  change,                                                               
because they are identified expressly  in regulation. Although it                                                               
is not  an exhaustive  list. Some  authorities could  overlap for                                                               
written authorizations where they consult  with ADF&G and DEC, so                                                               
there could be some interplay.                                                                                                  
                                                                                                                                
5:39:11 PM                                                                                                                    
Slide 33 Land and Water Authorizations                                                                                          
                                                                                                                                
COMMISSIONER  MACK  said  this  slide  points  out  that  DNR  is                                                               
custodian of the  molecules of water and relies on  ADF&G and DEC                                                               
to decide  the sufficiency of  the quality  of the water  and the                                                               
amount of  water which  is required  to remain  in the  stream so                                                               
that it  continues to  be receptive to  reproduction of  fish, if                                                               
that  is the  case.  A  process is  established  in statute  with                                                               
criteria.  The Division  of Mining,  Land,  and Water  determines                                                               
appropriateness  of an  application  to issue  an in-stream  flow                                                               
reservation to protect some of the water.                                                                                       
                                                                                                                                
COMMISSIONER  MACK   said  a  corresponding  issue   is  a  water                                                               
appropriation, which is  when an entity needs to use  water for a                                                               
particular purpose in  a particular area or  temporarily use some                                                               
water. The department relies very  heavily on ADF&G for informing                                                               
those types of decisions.                                                                                                       
                                                                                                                                
5:42:04 PM                                                                                                                    
MR.   MOSELLE   said   slide  34   reiterates   complex   project                                                               
coordination activities  that happen  any time  multiple agencies                                                               
need to  be involved  because of  their individual  statutory and                                                               
regulatory authorities.  This is  where the  OPMP will  come into                                                               
play.  Typically, they  coordinate  for  transportation, oil  and                                                               
gas, mining, or  alternative energy projects and they  do this by                                                               
forming   multi-disciplinary   agency   teams   to   review   the                                                               
applications. They try  to identify issues early,  be creative in                                                               
addressing them,  and ensure  that as they  address an  issue for                                                               
one agency they are not creating a conflict for another.                                                                        
                                                                                                                                
MR. MOSELLE summarized their main  points: DNR manages all state-                                                               
owned  land, water,  and natural  resources except  for fish  and                                                               
game on behalf of Alaskans.  DNR contributes to the protection of                                                               
fish and  wildlife through its  land use planning  and permitting                                                               
processes, and  coordinates with ADF&G and  DEC, specifically, on                                                               
management   plan   guidelines,    authorizations,   and   permit                                                               
conditions related to fish and wildlife resources.                                                                              
                                                                                                                                
Because  he  is a  visual  learner,  Mr.  Moselle said  he  likes                                                               
diagrams and  the last slide  is a visual representation  of that                                                               
coordination;  at  the  very  center is  the  Office  of  Project                                                               
Management  and Permitting  (OPMP).  Aside from  ADF&G, DEC,  and                                                               
DNR,  it is  surrounded by  the Department  of Health  and Social                                                               
Services (DHSS),  Department of  Law (DOL) (to  advise regulatory                                                               
agencies in the executive branch),  and the Department of Revenue                                                               
(DOR)  (advising  on  proof   of  financial  responsibility).  He                                                               
offered to answer questions.                                                                                                    
                                                                                                                                
5:45:45 PM                                                                                                                    
SENATOR VON IMHOF thanked them  for the "great" presentations and                                                               
commented that  after listening  to them  she has  grave concerns                                                               
about  this  initiative. She  thinks  it  will affect  the  state                                                               
economically. At this  time, Alaska has a  very robust permitting                                                               
process   and  something   like  this   initiative  will   hammer                                                               
unnecessary  layers   on  it.  Aside  from   the  big  commercial                                                               
projects, she wonders how this  initiative would affect the small                                                               
home builder, the placer miner,  projects to build hiking trails,                                                               
and the  small businesses that  are already paying the  high cost                                                               
of health  care and energy, that  will now have layer  upon layer                                                               
of delays and permits.                                                                                                          
                                                                                                                                
SENATOR MEYER  asked what financial impact  this initiative would                                                               
have on DNR.                                                                                                                    
                                                                                                                                
COMMISSIONER MACK  replied that DNR  is not included in  the cost                                                               
estimate.                                                                                                                       
                                                                                                                                
SENATOR  BISHOP editorialized  on ice-road  water use.  The state                                                               
has  a comprehensive  permitting  system going  above and  beyond                                                               
federal  requirements.  It  is well  coordinated  and  well  run.                                                               
Talking  about a  fiscal note,  he remarked  how one  facilitates                                                               
access to  a Point Thomson  or an Alpine  and not hit  the bottom                                                               
line to the State of Alaska!                                                                                                    
                                                                                                                                
CHAIR GIESSEL thanked everyone again  for their presentations and                                                               
asked for any closing remarks.                                                                                                  
                                                                                                                                
MR. BENKERT  said he  appreciated the  opportunity to  speak with                                                               
the  committee today.  The three  departments  work very  closely                                                               
together to  make sure  project is  the best  possible. Sometimes                                                               
it's a very long process, but  they really try to cover all their                                                               
bases.                                                                                                                          
                                                                                                                                
5:51:06 PM                                                                                                                    
SENATOR  COGHILL wondered  if the  initiative's ambiguities  will                                                               
cause a new liability for litigation.                                                                                           
                                                                                                                                
5:53:30 PM                                                                                                                    
CHAIR GIESSEL  said she  was "very  impressed" with  the biologic                                                               
sciences the  departments are applying to  the permitting process                                                               
in guarding  Alaska's water  and fish  resources. It  informs the                                                               
committee  and  the  public, which  is  key,  because  advocating                                                               
regulation of these resources to  the ballot box can creates some                                                               
very serious  outcomes that are  not particularly  helpful. "That                                                               
is why the best protection  of liberty is an informed electorate,                                                               
as one of our founders once said."                                                                                              
                                                                                                                                
She  adjourned the  Senate Resources  Committee  meeting at  5:53                                                               
p.m.                                                                                                                            
                                                                                                                                
                                                                                                                                

Document Name Date/Time Subjects
Senate Resources Hearing Agenda - 3 - 28 - 18 .pdf SRES 3/28/2018 3:30:00 PM
ADFG DEC DNR Presentation to Senate Resources 3-28-18.pdf SRES 3/28/2018 3:30:00 PM