Legislature(2019 - 2020)BUTROVICH 205

03/15/2019 03:30 PM RESOURCES

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Audio Topic
03:30:21 PM Start
03:30:49 PM SB51
04:05:38 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 51 NATL. RES. WATER NOMINATION/DESIGNATION TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                         March 15, 2019                                                                                         
                           3:30 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Chris Birch, Chair                                                                                                      
Senator John Coghill, Vice Chair                                                                                                
Senator Cathy Giessel                                                                                                           
Senator Lora Reinbold (online)                                                                                                  
Senator Click Bishop                                                                                                            
Senator Scott Kawasaki                                                                                                          
Senator Jesse Kiehl                                                                                                             
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 51                                                                                                              
"An Act requiring  the designation of state  water as outstanding                                                               
national  resource  water  to  occur  by  law;  relating  to  the                                                               
authority of  the Department  of Environmental  Conservation, the                                                               
Department  of  Fish and  Game,  and  the Department  of  Natural                                                               
Resources  to  nominate  water  for  designation  as  outstanding                                                               
national resource  water; relating  to management  of outstanding                                                               
national  resource  water  by  the  Department  of  Environmental                                                               
Conservation; and providing for an effective date."                                                                             
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 51                                                                                                                   
SHORT TITLE: NATL. RES. WATER NOMINATION/DESIGNATION                                                                            
SPONSOR(s): RESOURCES                                                                                                           
                                                                                                                                
02/11/19       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/11/19       (S)       RES, FIN                                                                                               
03/15/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
TREVOR FULTON, Staff                                                                                                            
Senator Birch                                                                                                                   
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided an overview of SB 51.                                                                            
                                                                                                                                
ANDREW SAYERS-FAY, Director                                                                                                     
Division of Water                                                                                                               
Alaska Department of Environmental Conservation                                                                                 
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Answered questions regarding SB 51.                                                                       
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
                                                                                                                                
3:30:21 PM                                                                                                                    
CHAIR CHRIS BIRCH called the  Senate Resources Standing Committee                                                             
meeting to order  at 3:30 p.m. Present at the  call to order were                                                               
Senators Coghill, Giessel, Kiehl, and Chair Birch.                                                                              
                                                                                                                                
         SB 51-NATL. RES. WATER NOMINATION/DESIGNATION                                                                      
                                                                                                                                
3:30:49 PM                                                                                                                    
CHAIR BIRCH  announced the  consideration of  Senate Bill  51 (SB                                                               
51).                                                                                                                            
                                                                                                                                
He detailed  that SB 51  is an  act requiring the  designation of                                                               
state waters as outstanding national  resource waters to occur by                                                               
law,   sponsored  by   the   Senate   Resources  Committee.   The                                                               
designation  of state  waters  as  outstanding national  resource                                                               
waters  could   have  broad  impacts  on   resource  development,                                                               
recreation, and  a range of  other activities on state  lands and                                                               
waters.                                                                                                                         
                                                                                                                                
He  explained  that  he  introduced  SB 51  to  ensure  that  the                                                               
authority  to  designate  state waters  as  outstanding  national                                                               
resource waters lies where the  state constitution intends it to,                                                               
within  the hands  of the  legislature.  Federal regulators  have                                                               
already   signaled  that   legislative  approval   would  be   an                                                               
appropriate   means   of   designation;  likewise,   the   Alaska                                                               
Department  of  Environmental   Conservation's  current  internal                                                               
policy defers designation to the legislature.                                                                                   
                                                                                                                                
He specified  that SB  51 would codify  the designation  of state                                                               
waters  as outstanding  national resource  waters process  and by                                                               
doing  so provides  certainty  for developers,  conservationists,                                                               
and state and local regulators alike.                                                                                           
                                                                                                                                
3:31:18 PM                                                                                                                    
SENATOR KAWASAKI joined the committee meeting.                                                                                  
                                                                                                                                
3:32:09 PM                                                                                                                    
TREVOR FULTON,  Staff, Senator  Birch, Alaska  State Legislature,                                                               
Juneau, Alaska, explained  that SB 51 would codify  a process for                                                               
designating  Outstanding   National  Resource   Waters,  commonly                                                               
referred to as  "Tier 3 waters." The  Alaska Constitution clearly                                                               
places  the  responsibility  for  significant  land-and-water-use                                                               
decisions in the hands of the legislature.                                                                                      
                                                                                                                                
He detailed  that Article 8,  Section 7, reads,   The legislature                                                               
may provide for  the acquisition of sites, objects,  and areas of                                                               
natural  beauty  or  of   historic,  cultural,  recreational,  or                                                               
scientific value. It may reserve  them from the public domain and                                                               
provide for  their administration  and preservation for  the use,                                                               
enjoyment, and welfare of the people."                                                                                          
                                                                                                                                
He  explained  that  Article  8,  Section  2,  holds  that,   The                                                               
legislature shall  provide for the utilization,  development, and                                                               
conservation  of all  natural resources  belonging to  the state,                                                               
including  land  and  waters,  for the  maximum  benefit  of  the                                                               
people."                                                                                                                        
                                                                                                                                
He said  an example  of the  expressed constitutional  mandate in                                                               
practice is  the 118 State  Legislatively Designated  Areas which                                                               
includes  refuges, sanctuaries,  critical habitat  areas, ranges,                                                               
special  management  areas,  forests,  parks,  recreation  areas,                                                               
preserves, public use areas,  recreation rivers, and recreational                                                               
mining areas  which total nearly 12-million  acres of "designated                                                               
lands and waters"  throughout the state. Each  of the "designated                                                               
lands and waters" areas were  designated by legislative approval,                                                               
not through executive or agency fiat.                                                                                           
                                                                                                                                
He noted  that Alaskan voters  have also spoken clearly  on where                                                               
the  ultimate   authority  for   land-and-water-use  designations                                                               
should reside.  In 2014,  voters approved by  a margin  of nearly                                                               
two-to-one  the  "Bristol  Bay   Forever"  initiative  which  was                                                               
designed to  give the legislature  final say in whether  to allow                                                               
the  development of  large-scale-mining projects  in the  Bristol                                                               
Bay  area.  SB  51  simply  continues  the  strong  precedent  of                                                               
ensuring significant land-and-water-use  decisions; in this case,                                                               
Tier  3  water body  designations  reside  in  the hands  of  the                                                               
legislature. A  Tier 3 designation  bestows the highest  level of                                                               
water quality protection under the federal Clean Water Act.                                                                     
                                                                                                                                
MR.  FULTON  noted that  in  1983,  the Environmental  Protection                                                               
Agency (EPA)  defined Tier 3  waters as, "Waters  of exceptional,                                                               
recreational, or ecological significance"  in which water quality                                                               
shall   be  maintained   and   protected   from  degradation   in                                                               
perpetuity. The EPA further mandated  that each state establish a                                                               
process  for designating  "outstanding national  resource waters"                                                               
(ONRW).                                                                                                                         
                                                                                                                                
He said currently, the State of  Alaska has no formal process for                                                               
designating  Tier  3 waters;  this  puts  the  state at  risk  of                                                               
violating the Clean  Water Act, opens the possibility  of the EPA                                                               
imposing their own designation  process, and leaves stakeholders,                                                               
both  developers  and  conservationists alike,  with  uncertainty                                                               
about the ONRW designation process.                                                                                             
                                                                                                                                
He  set  forth that  SB  51  solves  the designation  problem  by                                                               
codifying a Tier 3 designation  process consistent with how lands                                                               
and  waters  of  the  state   have  always  been  designated  for                                                               
conservation  by legislative  approval  rather than  departmental                                                               
decision; however,  SB 51 does  not entirely  exclude departments                                                               
from these important decisions.                                                                                                 
                                                                                                                                
He  explained  that  by  law,  the  Department  of  Environmental                                                               
Conservation (DEC)  is the state  agency responsible  for meeting                                                               
Clean  Water Act  requirements and  for establishing  the Tier  3                                                               
designation.  By  requiring  DEC   to  consult  with  the  Alaska                                                               
Department of  Natural Resources (DNR) for  evaluation impacts on                                                               
land uses  and the  Alaska Department  of Fish  and Game  for the                                                               
evaluation of impacts to habitat  and wildlife prior to setting a                                                               
Tier  3 recommendation  to the  legislature, SB  51 also  ensures                                                               
that  Tier 3  nominations  benefit from  scientific scrutiny  and                                                               
technical  review by  the  appropriate  executive branch  subject                                                               
matter experts.                                                                                                                 
                                                                                                                                
He said  Tier 3 designation  could be  an important tool  for the                                                               
protection  of human  and environmental  health; however,  such a                                                               
designation is a significant policy  decision that could restrict                                                               
a range of  activities not only on state waterbodies  but also on                                                               
adjacent lands.  Mining activity  and other large  scale resource                                                               
development  projects  would  obviously  be impacted  by  Tier  3                                                               
designations,  but  other  examples of  perhaps  less  considered                                                               
activities would  include road  and building  construction, motor                                                               
boats,  seafood   processing,  municipal   wastewater  discharge,                                                               
residential   and    commercial   septic    systems,   stormwater                                                               
discharges,  landfills,  timber   harvesting,  and  quarries  and                                                               
gravel  pits located  near Tier  3 watersheds.  Such wide-ranging                                                               
impacts effectively make  Tier 3 designation a  de facto land-use                                                               
decision;  as such,  the final  decision for  Tier 3  designation                                                               
should  properly and  definitively  reside in  the  hands of  the                                                               
legislature, SB 51 does just that.                                                                                              
                                                                                                                                
3:37:38 PM                                                                                                                    
CHAIR BIRCH announced that Senator Reinbold is online.                                                                          
                                                                                                                                
SENATOR REINBOLD confirmed being online.                                                                                        
                                                                                                                                
SENATOR KAWASAKI  pointed out that  Alaska is not the  only state                                                               
that is taking  over primacy with respect to water.  He asked how                                                               
other states have decided to nominate Tier 3 designations.                                                                      
                                                                                                                                
MR.  FULTON referenced  a "frequently  asked questions"  document                                                               
for SB 51  that addressed Tier 3 designations in  other states as                                                               
follows:                                                                                                                        
                                                                                                                                
     Examples  from other  states  include  waters that  are                                                                    
     part  of national  or state  parks, wildlife  refuge or                                                                    
     wilderness  areas, special  trout waters,  federal Wild                                                                    
     and  Scenic  Rivers  or  other  unique  waters.  States                                                                    
     including  Washington,  Idaho,   and  Nevada  have  not                                                                    
     designated  any  ONRWs;   Oregon  has  designated  one;                                                                    
     California has  designated two; all waters  in national                                                                    
     parks are ONRWs in  Montana; and Arizona has designated                                                                    
     22 waters as ONRWs.                                                                                                        
                                                                                                                                
He pointed out  that Alaska's constitution is  different than any                                                               
other state.  The Alaska Constitution explicitly  states that the                                                               
designation decision process should be a legislative process.                                                                   
                                                                                                                                
SENATOR  KAWASAKI  asked  if  the  bill  sponsor  is  taking  the                                                               
constitutional  requirement in  Article  7  to deal  specifically                                                               
that every time something comes up  the legislature has to do it,                                                               
or in  other parts  of the constitution  it says  the legislature                                                               
has  the responsibility  for  supporting  education; however,  it                                                               
does not mean  that the legislature does it every  time, it means                                                               
that  the   legislature  creates   the  body   of  law   and  the                                                               
administration implements it.                                                                                                   
                                                                                                                                
3:39:58 PM                                                                                                                    
MR. FULTON replied that the  Alaska Constitution's mandate places                                                               
the decision in the hands of the legislature.                                                                                   
                                                                                                                                
SENATOR KAWASAKI  opined that  the decision is  more of  a policy                                                               
call where alternatively, like other  states that were mentioned,                                                               
the  state  could  create  the  law. He  noted  that  Mr.  Fulton                                                               
mentioned  that  designation  was an  important  policy  decision                                                               
where a  law is created.  He pointed out that  alternatively, the                                                               
legislature could proceed in a different  way where it can veto a                                                               
designation by DEC. He opined  that it is the chair's prerogative                                                               
to consider alternatives.                                                                                                       
                                                                                                                                
CHAIR BIRCH explained  that the objective is to  try and identify                                                               
a path  forward that would  recognize and respect  the importance                                                               
of having a  process identified as well as  the people identified                                                               
that  would  want to  participate.  He  remarked that  given  the                                                               
importance  and magnitude  of designation  decisions  as well  as                                                               
being consistent  with other aspects  of the state's  code, going                                                               
back to the legislature seems like the right thing to do.                                                                       
                                                                                                                                
SENATOR KIEHL noted that Mr.  Fulton used the phrase "perpetuity"                                                               
in his overview. He said he  had not seen the use of "perpetuity"                                                               
in his  research on  prior legislation. He  pointed out  that the                                                               
American College of Environmental Lawyers  have said they did not                                                               
believe  the  designations were  in  "perpetuity."  He asked  Mr.                                                               
Fulton to explain  the notion that a Tier 3  designation would be                                                               
irrevocable.                                                                                                                    
                                                                                                                                
MR. FULTON explained that when  he says, "in perpetuity," just as                                                               
any bill  enacted by the  legislature can  be undone by  a future                                                               
legislature or alternatively by a  voter initiative, it would not                                                               
be in perpetuity in the sense that it would go counter to that.                                                                 
                                                                                                                                
He said  as far as the  permanence of the designation  outside of                                                               
the legislative process,  the Clean Water Act, 40  CFR 131.12, is                                                               
the federal regulation code where  the Tier 3 designation process                                                               
stems from. The  code essentially reads that Tier  3 waters would                                                               
have to be  maintained and protected; however, the  code does not                                                               
explicitly  say "in  perpetuity," but  the  code does  set up  an                                                               
anti-degradation policy  that says nothing can  be contributed to                                                               
the designated water  beyond a limited duration  that would cause                                                               
more  or less  permanent degradation  to the  water, noting  that                                                               
there is  no timeframe  on a  short-term duration.  He summarized                                                               
that "in perpetuity" is implied.                                                                                                
                                                                                                                                
3:43:59 PM                                                                                                                    
SENATOR  KIEHL  replied that  he  read  Mr. Fulton's  explanation                                                               
differently   regarding    "short   term"    versus   "permanent"                                                               
degradation. He noted that Mr.  Fulton also mentioned that Tier 3                                                               
designations would stop roadbuilding,  but the bill's "frequently                                                               
asked question" document  as well as the  EPA's website mentioned                                                               
temporary degradation, like roadwork, would be allowed.                                                                         
                                                                                                                                
3:44:31 PM                                                                                                                    
SENATOR BISHOP joined the committee meeting.                                                                                    
                                                                                                                                
MR.  FULTON  specified  that  his  intent was  to  say  that  the                                                               
potential to impact road construction  activities would depend on                                                               
the  duration   and  the  runoff   from  the   road  construction                                                               
activities;   however,   just   as   any   large-scale   resource                                                               
development project  could impact  water quality,  so can  a road                                                               
construction project.                                                                                                           
                                                                                                                                
SENATOR  KIEHL addressed  Article  2 in  the Alaska  Constitution                                                               
regarding constraint on  the legislature's power to  pass a bill,                                                               
noting that the bill states  that the legislature cannot consider                                                               
designation without commissioner approval.                                                                                      
                                                                                                                                
MR. FULTON explained  that the sponsor's intent is  that the bill                                                               
would not tie the hands  of a future legislature. Per discussions                                                               
with  Legislative Legal,  SB  51 would  not tie  the  hands of  a                                                               
future  legislature. The  process  that SB  51  creates could  be                                                               
circumvented  by any  legislator at  any  time. SB  51 would  not                                                               
prohibit   an  individual   legislator   or   a  committee   from                                                               
introducing a bill to nominate a water body as Tier 3.                                                                          
                                                                                                                                
SENATOR KIEHL asked why the step in the legislation.                                                                            
                                                                                                                                
MR.  FULTON asked  if  he  was referring  to  the three  resource                                                               
departments that would be included in the conversation.                                                                         
                                                                                                                                
SENATOR KIEHL answered yes.                                                                                                     
                                                                                                                                
MR. FULTON explained that it  adds a level of scientific scrutiny                                                               
and subject matter expertise to  the process that is much needed.                                                               
The  legislature does  not necessarily  have  the same  resources                                                               
that  the departments  have to  give  the subject  matter a  fair                                                               
shake.                                                                                                                          
                                                                                                                                
3:47:12 PM                                                                                                                    
SENATOR  COGHILL  expressed   appreciation  for  Senator  Kiehl's                                                               
questions.  He opined  that the  expectation  is the  legislature                                                               
could  designate  as  well  as   un-designate.  Having  a  by-law                                                               
requirement is the better way  to designate; for example, putting                                                               
a  park system  together where  the legislature  could undo  some                                                               
parks too. He  asked if the Tier 3 designation  is something that                                                               
the federal government  says, "This is what it is,  we can accept                                                               
it or not,  but once that designation is given  it's really under                                                               
the requirements of the federal law."                                                                                           
                                                                                                                                
MR.  FULTON  explained  that  the  EPA  would  sign  off  on  the                                                               
designation process,  not on  a designation  of a  specific water                                                               
body.                                                                                                                           
                                                                                                                                
SENATOR COGHILL  asked him to  confirm that the state  would have                                                               
to  follow the  federal rule  regarding degradation  requirements                                                               
once a designation is established.                                                                                              
                                                                                                                                
MR. FULTON deferred the question to the department.                                                                             
                                                                                                                                
SENATOR COGHILL  inquired how flexible  a designation is.  "Do we                                                               
always have to  say what the Clean  Water Act says or  do we have                                                               
flexibility?"                                                                                                                   
                                                                                                                                
3:49:24 PM                                                                                                                    
ANDREW   SAYERS-FAY,   Director,   Division  of   Water,   Alaska                                                               
Department   of  Environmental   Conservation,  Juneau,   Alaska,                                                               
explained that  the federal government  sets up  the requirements                                                               
once a  Tier 3 designation  occurs. The designation does  not tie                                                               
the  hands of  a future  legislature. In  conversations with  the                                                               
EPA, the agency  made it clear that the intent  for a designation                                                               
by law be in perpetuity, but  the state legislature can choose in                                                               
the  future  to  change  the   designation.  He  noted  that  the                                                               
designation only  allows temporary  and limited degradation  in a                                                               
Tier 3 water.                                                                                                                   
                                                                                                                                
SENATOR GIESSEL noted that a  similar bill was entertained by the                                                               
Senate  Resources  Committee in  2016  where  DEC indicated  that                                                               
there  is   not  federal  regulation  or   guidance  specifically                                                               
addressing how  or whether  a state's Tier  3 designation  can be                                                               
reversed  or modified.  The  EPA  has said  there  is no  federal                                                               
regulation regarding  Tier 3 reversal  or modification.  She said                                                               
it  sounds  like  the  state  could reverse.  She  asked  if  her                                                               
recollection  was correct  that  Montana  added reversibility  to                                                               
Tier 3 water designation.                                                                                                       
                                                                                                                                
MR.  SAYERS-FAY  answered  that  he  would  follow  up  with  the                                                               
information.  He   explained  that   when  the  EPA   approves  a                                                               
designation  process, the  agency  expects  that the  designation                                                               
will be followed.                                                                                                               
                                                                                                                                
3:52:24 PM                                                                                                                    
SENATOR GIESSEL asked  how many states have not  completed a Tier                                                               
3 designation process.                                                                                                          
                                                                                                                                
MR. SAYERS-FAY answered that he did not have an answer.                                                                         
                                                                                                                                
CHAIR BIRCH  announced that SB 51  will be held in  committee. He                                                               
said his  intent is to bring  SB 51 back up  for consideration on                                                               
March 20 where public testimony will be heard.                                                                                  
                                                                                                                                
3:53:21 PM                                                                                                                    
SENATOR KAWASAKI  asked to  put questions on  the record  so that                                                               
committee members can get answers  at the bill's next hearing. He                                                               
referenced a  new section that the  bill will add to  AS 46.03 as                                                               
follows:                                                                                                                        
                                                                                                                                
   • AS 46.03.085 (b):                                                                                                          
        o The department shall accept nominations of water for                                                                  
          designation  as  outstanding national  resource  water.                                                               
          The   department   may   forward   a   nomination   for                                                               
          outstanding national resource  water to the legislature                                                               
          only   if the  department, the  Department of  Fish and                                                               
          Game, and the Department  of Natural Resources agree to                                                               
          recommend designation of the water to the legislature.                                                                
                                                                                                                                
He  noted  Senator Kiehl's  question  regarding  the legality  of                                                               
whether the new  section meant that the  legislature cannot bring                                                               
something forward.  He asked that  the committee receive  a legal                                                               
opinion on the proposed section.                                                                                                
                                                                                                                                
He  referenced  similar  legislation  in 2016  where  a  list  of                                                               
nomination  criteria  was  enumerated that  included:  relatively                                                               
pristine  condition;  and  exceptional ecological,  economic,  or                                                               
recreational significance. He  asked why the list in  the Code of                                                               
Federal Regulation  (CFR) is not  being used for the  criteria in                                                               
SB 51.                                                                                                                          
                                                                                                                                
3:55:39 PM                                                                                                                    
MR.  FULTON  answered  that  the   legality  issue  that  Senator                                                               
Kawasaki  questioned is  being addressed  and  something will  be                                                               
shared  with the  committee  when  the bill  is  heard again.  He                                                               
addressed  the  second  question  on why  a  list  of  nomination                                                               
criteria  was  not  listed  in  SB  51  and  explained  that  the                                                               
sponsor's intent  is to  start with  something cleaner  and build                                                               
from  there,  perhaps  leaving   the  criteria  questions  to  be                                                               
answered in regulation.                                                                                                         
                                                                                                                                
SENATOR KAWASAKI  asked what other states  do and if there  are a                                                               
number  of  states  that  do  not currently  have  Tier  3  water                                                               
nominations in their  state statute and who does that  in lieu of                                                               
the Tier 3 nominating process.                                                                                                  
                                                                                                                                
MR. FULTON replied that he will get back to Senator Kawasaki.                                                                   
                                                                                                                                
3:57:40 PM                                                                                                                    
MR.  SAYERS-FAY   explained  that   all  states  are   under  the                                                               
obligation to  have a  Tier 3 designation  process and  so states                                                               
over  time have  been fulfilling  that obligation,  the remaining                                                               
states that  do not have one  are still working towards  that. He                                                               
said  the division  will get  back  to Senator  Kawasaki on  what                                                               
processes the states that have adopted something looks like.                                                                    
                                                                                                                                
SENATOR  KAWASAKI  addressed a  memo  that  states DEC  has  some                                                               
statutory authority  under the  Clean Water  Act and  whether the                                                               
statute language in  SB 51 is necessary or if  the department can                                                               
do the nominating process on their own through regulation.                                                                      
                                                                                                                                
MR. FULTON answered  that it is the  sponsor's understanding that                                                               
DEC could have the authority on  their own without SB 51, but the                                                               
larger  question   pertains  to  satisfying   the  constitutional                                                               
mandate  regarding   large,  significant   land  and   water  use                                                               
decisions are ultimately being decided  by the legislature as per                                                               
the  118  other  land-use  designations  that  are  legislatively                                                               
designated land units.                                                                                                          
                                                                                                                                
3:59:45 PM                                                                                                                    
SENATOR   GIESSEL   addressed   the  bill's   "frequently   asked                                                               
questions" document and noted that  there are five nominated Tier                                                               
3  water designations.  She surmised  that the  legislature would                                                               
take the five nominations and  determine whether the designations                                                               
should be adopted as Tier 3 water.                                                                                              
                                                                                                                                
MR. FULTON answered yes.                                                                                                        
                                                                                                                                
MR. SAYERS-FAY concurred with Senator  Giessel and explained that                                                               
the federal requirements  under the Clean Water  Act dictate that                                                               
a designation process be in  place. DEC has received nominations,                                                               
but the  department does not have  a process to address  them. He                                                               
detailed that  amendments have been  made to the Clean  Water Act                                                               
over  time so  the authority  that the  department may  have been                                                               
granted raises  the question  as to  the legislature's  intent to                                                               
grant DEC the authority to designate  a Tier 3 water, that is why                                                               
the  department  has not  felt  comfortable  on the  question  of                                                               
designation. He  said the department thinks  that the legislature                                                               
should be on the record to make a designation.                                                                                  
                                                                                                                                
4:01:44 PM                                                                                                                    
SENATOR COGHILL  emphasized that legislators are  the trustees of                                                               
the  public's trust  doctrine, both  in the  state's constitution                                                               
and in case law.                                                                                                                
                                                                                                                                
SENATOR KIEHL  asked Mr. Fulton  to address the  sponsor's intent                                                               
that the legislature is making land-use decisions.                                                                              
                                                                                                                                
MR. FULTON  answered that  the sponsor's  belief is  that because                                                               
Tier 3 water designations could  have such significant impacts on                                                               
land-use activities,  they are de  facto land-use  decisions. The                                                               
regulations  requiring the  state to  have a  Tier 3  designation                                                               
process in place speaks specifically  to water quality standards,                                                               
but the implications are much larger than that.                                                                                 
                                                                                                                                
SENATOR  COGHILL  explained  that   that  a  Tier  3  designation                                                               
prohibits   any  new   activities  and   expansion  of   existing                                                               
activities that  changes the water  quality. He pointed  out that                                                               
Alaska has a lot of land around a lot of water.                                                                                 
                                                                                                                                
SENATOR KIEHL  noted earlier testimony  about what  expertise the                                                               
legislature and  the agencies have.  He said he is  concerned for                                                               
the future of water where decisions are made based on land use.                                                                 
                                                                                                                                
4:04:25 PM                                                                                                                    
CHAIR BIRCH held SB 51 in committee.                                                                                            
                                                                                                                                
4:05:38 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair  Birch adjourned  the Senate  Resources Standing  Committee                                                               
meeting at 4:05 p.m.                                                                                                            

Document Name Date/Time Subjects
SB51 Sponsor Statement.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB 51 Version K.PDF SRES 3/15/2019 3:30:00 PM
SB 51
SB51 Fiscal Note DEC-WIF 3.8.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 Fiscal Note DFG-CO 3.8.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 Fiscal Note DNR-MLW 3.10.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 DEC ONRW FAQ 3.14.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 DNR Fact Sheet Legislatively Designated Areas.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 AML Letter 3.13.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 Elisabeth Genaux Email 2.27.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 Bonnie Demerjian Email 2.26.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51
SB51 Joel Hubbard Email 2.26.19.pdf SRES 3/15/2019 3:30:00 PM
SB 51