Legislature(2019 - 2020)BUTROVICH 205

04/08/2019 03:30 PM RESOURCES

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Audio Topic
03:31:59 PM Start
03:32:23 PM SB51
03:46:21 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
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                         April 8, 2019                                                                                          
                           3:31 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Chris Birch, Chair                                                                                                      
Senator John Coghill, Vice Chair                                                                                                
Senator Cathy Giessel                                                                                                           
Senator Lora Reinbold                                                                                                           
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                                                                           
03/15/19       (S)       Heard & Held                                                                                           
03/15/19       (S)       MINUTE(RES)                                                                                            
03/20/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
03/20/19       (S)       Heard & Held                                                                                           
03/20/19       (S)       MINUTE(RES)                                                                                            
03/27/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
03/27/19       (S)       Heard & Held                                                                                           
03/27/19       (S)       MINUTE(RES)                                                                                            
04/03/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
04/03/19       (S)       <Bill Hearing Canceled>                                                                                
04/08/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JENNIFER CURRIE, Senior Assistant Attorney General                                                                              
Civil Division                                                                                                                  
Environmental Section                                                                                                           
Alaska Department of Law                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT: Offered  to answer  questions regarding  her                                                             
opinion letter for SB 51.                                                                                                       
                                                                                                                                
EMILY NAUMAN, Deputy Director                                                                                                   
Legal Services                                                                                                                  
Legislative Affairs Agency                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT: Offered  to answer  questions regarding  her                                                             
memo that addressed committee questions related to SB 51.                                                                       
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
                                                                                                                                
3:31:59 PM                                                                                                                    
CHAIR CHRIS BIRCH called the  Senate Resources Standing Committee                                                             
meeting to order  at 3:31 p.m. Present at the  call to order were                                                               
Senators  Giessel, Kiehl,  Reinbold,  Bishop, Kawasaki,  Coghill,                                                               
and Chair Birch.                                                                                                                
                                                                                                                                
         SB 51-NATL. RES. WATER NOMINATION/DESIGNATION                                                                      
                                                                                                                                
3:32:23 PM                                                                                                                    
CHAIR BIRCH  announced the  consideration of  Senate Bill  51 (SB
51).                                                                                                                            
                                                                                                                                
3:32:39 PM                                                                                                                    
SENATOR COGHILL moved to adopt  the committee substitute (CS) for                                                               
SB 51, version 31-LS0375\R, as the working document.                                                                            
                                                                                                                                
CHAIR BIRCH announced that without objection  the CS for SB 51 is                                                               
the working document.                                                                                                           
                                                                                                                                
He detailed  that the committee is  hearing SB 51 for  the fourth                                                               
time and  his intention is to  take amendments and hold  SB 51 in                                                               
committee.                                                                                                                      
                                                                                                                                
He noted  that during the  previous hearing  on SB 51  there were                                                               
requests  for  legal analysis  from  the  Department of  Law  and                                                               
Legislative Legal Services.                                                                                                     
                                                                                                                                
3:33:42 PM                                                                                                                    
JENNIFER  CURRIE,   Senior  Assistant  Attorney   General,  Civil                                                               
Division,  Environmental  Section,   Alaska  Department  of  Law,                                                               
Anchorage,  Alaska, said  she was  available to  answer questions                                                               
regarding her April  5, 2019 opinion letter for SB  51 that reads                                                               
as follows:                                                                                                                     
                                                                                                                                
     This  letter  sets  out information  regarding  Tier  3                                                                    
     waters  and   the  regulatory  effect   of  a   Tier  3                                                                    
     designation. It  also sets  out current  Alaska Supreme                                                                    
     Court  law   regarding  how   to  evaluate   whether  a                                                                    
     citizen's     initiative     constitutes     initiative                                                                    
     constitutes an appropriation of state assets.                                                                              
                                                                                                                                
CHAIR BIRCH announced  that Emily Nauman from  Legal Services was                                                               
available to  answer questions regarding  her memo to  the Senate                                                               
Resources Committee.                                                                                                            
                                                                                                                                
3:34:22 PM                                                                                                                    
EMILY NAUMAN, Deputy Director, Legal  Services, Division of Legal                                                               
and Research  Services, Legislative Affairs Agency,  Alaska State                                                               
Legislature,  Juneau, Alaska,  said  she is  available to  answer                                                               
questions regarding her March 29, 2019 memo related to SB 51.                                                                   
                                                                                                                                
CHAIR   BIRCH  noted   that  the   Department  of   Environmental                                                               
Conservation (DEC)  presented committee  members with  a document                                                               
related to an  email conversation DEC had  with the Environmental                                                               
Protection  Agency (EPA)  about  the ability  to  rescind Tier  3                                                               
water designation. He announced that  DEC is online and available                                                               
to provide additional information.                                                                                              
                                                                                                                                
He announced that the committee will take amendments on SB 51.                                                                  
                                                                                                                                
3:35:26 PM                                                                                                                    
SENATOR  GIESSEL   moved  to  adopt  Amendment   1,  labeled  31-                                                               
LS0375\R.8.                                                                                                                     
                                                                                                                                
                                               31-LS0375\R.8                                                                    
                                                      Nauman                                                                    
                                                      4/3/19                                                                    
                                                                                                                                
                          AMENDMENT 1                                                                                       
                                                                                                                                
     OFFERED IN THE SENATE                BY SENATOR GIESSEL                                                                    
     TO: CSSB 51(RES), Draft Version "R"                                                                                        
                                                                                                                                
     Page 1, line 11:                                                                                                           
          Delete "law"                                                                                                          
          Insert "statute"                                                                                                      
                                                                                                                                
3:35:34 PM                                                                                                                    
SENATOR KAWASAKI objected for discussion purposes.                                                                              
                                                                                                                                
SENATOR  GIESSEL explained  that Amendment  1 addresses  the word                                                               
"law" on  page 1, line  11. It  says, "regulation, only  by law."                                                               
The amendment  would change that  to state, "regulation,  only by                                                               
statute."                                                                                                                       
                                                                                                                                
She noted that  originally, she had suggested that  the word, "by                                                               
the  legislature"  be  substituted; however,  Ms.  Nauman's  memo                                                               
dated March 29, 2019 said:                                                                                                      
                                                                                                                                
     3.  Could changing  "by law"  to  "by the  legislature"                                                                  
     preclude   a  waterbody   from   being  designated   as                                                                  
     outstanding national resource water by initiative?                                                                       
     Whether or  not an outstanding national  resource water                                                                    
     could be designated by initiative  is discussed in part                                                                    
     one of this memorandum. However,  use of the phrase "by                                                                    
     the legislature"  is problematic.  It does not  seem to                                                                    
     acknowledge that  the governor has veto  authority over                                                                    
     bills. Also,  it creates an ambiguity  about whether or                                                                    
     not  an outstanding  national resource  water could  be                                                                    
     designated by resolution.                                                                                                  
                                                                                                                                
She  explained that  Ms. Nauman's  recommendation suggested  that                                                               
the use of the word "statute"  is clearer, adding that Ms. Nauman                                                               
articulated her reasoning on page 2, item 2.                                                                                    
                                                                                                                                
3:37:11 PM                                                                                                                    
SENATOR KAWASAKI withdrew his objection to Amendment 1.                                                                         
                                                                                                                                
3:37:18 PM                                                                                                                    
CHAIR BIRCH announced that without objection Amendment 1 passed.                                                                
                                                                                                                                
3:37:29 PM                                                                                                                    
SENATOR  GIESSEL   moved  to  adopt  Amendment   2,  labeled  31-                                                               
LS0375\R.10.                                                                                                                    
                                                                                                                                
                                              31-LS0375\R.10                                                                    
                                                      Nauman                                                                    
                                                      4/5/19                                                                    
                                                                                                                                
                          AMENDMENT 2                                                                                       
                                                                                                                                
     OFFERED IN THE SENATE                BY SENATOR GIESSEL                                                                    
     TO: CSSB 51(RES), Draft Version "R"                                                                                        
                                                                                                                                
     Page 1, lines 2 - 6:                                                                                                       
     Delete "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;"                                                                                             
                                                                                                                                
     Page 1, line 9:                                                                                                            
     Delete "(a)"                                                                                                               
                                                                                                                                
     Page 1, line 12, through page 2, line 13:                                                                                  
     Delete all material.                                                                                                       
                                                                                                                                
3:37:34 PM                                                                                                                    
SENATOR KAWASAKI objected for discussion purposes.                                                                              
                                                                                                                                
SENATOR GIESSEL  explained that the proposed  changes will reduce                                                               
the bill to  two sections. There are no subsections  in Section 1                                                               
because the  language gets into  defining the  waters designation                                                               
process.  She emphasized  that the  purpose  of the  bill was  to                                                               
define  the   authority  for  designating  the   waters  and  the                                                               
amendment simply refines and targets to that subject.                                                                           
                                                                                                                                
3:39:38 PM                                                                                                                    
SENATOR   KAWASAKI   summarized   that  the   amendment   removes                                                               
everything  in the  bill except  for the  process in  statute. He                                                               
asked her to explain how  the department will be implementing the                                                               
statute.                                                                                                                        
                                                                                                                                
SENATOR  GIESSEL answered  that the  purpose  of the  bill is  to                                                               
fulfill  the EPA  requirement  that  the state  have  in place  a                                                               
mechanism to  declare the waters.  She pointed out that  there is                                                               
nothing   in  the   bill  that   precludes  DEC   from  receiving                                                               
nominations, something that is already part of the process.                                                                     
                                                                                                                                
CHAIR BIRCH asked if Senator Kawasaki maintained his objection.                                                                 
                                                                                                                                
SENATOR KAWASAKI replied that he  will withdraw his objection. He                                                               
opined  that the  bill would  be better  if what  the legislature                                                               
would clarify what it wanted to do.                                                                                             
                                                                                                                                
3:41:34 PM                                                                                                                    
SENATOR KIEHL objected to Amendment 2.                                                                                          
                                                                                                                                
He  explained that  the  original  version of  the  bill sets  an                                                               
authority and  process where the  department gets  an application                                                               
from  citizens,  tribes, whomever.  The  department  looks at  an                                                               
application  and  makes  a   recommendation,  but  the  authority                                                               
clearly lies with the legislature.                                                                                              
                                                                                                                                
He said  with the amendment  he questioned  who would ever  go to                                                               
DEC or  the Alaska Department of  Fish and Game about  the waters                                                               
designation issue  because there is no  established framework for                                                               
agencies  to provide  their expertise  to make  a recommendation,                                                               
whether yes  or no. He asserted  that the bill should  set agency                                                               
guidelines, but to take agencies  out entirely takes the state in                                                               
a different direction.                                                                                                          
                                                                                                                                
He said he will maintain his objection.                                                                                         
                                                                                                                                
CHAIR  BIRCH explained  that the  amendment clarifies  the waters                                                               
designation   approval  process   where  the   majority  of   the                                                               
legislature is required to do  so. Designation would be incumbent                                                               
upon   the  legislature   to   require  additional   information,                                                               
engagement, or public comment if required.                                                                                      
                                                                                                                                
3:43:18 PM                                                                                                                    
A  roll call  vote was  taken. Senators  Birch, Bishop,  Coghill,                                                               
Giessel, and Reinbold voted in  favor of Amendment 2 and Senators                                                               
Kawasaki  and  Kiehl voted  against  it.  Therefore, Amendment  2                                                               
passed by a 5:2 vote.                                                                                                           
                                                                                                                                
3:43:54 PM                                                                                                                    
SENATOR GIESSEL moved Amendment 3, labeled 31-LS0375\R.9.                                                                       
                                                                                                                                
                                               31-LS0375\R.9                                                                    
                                                      Nauman                                                                    
                                                      4/5/19                                                                    
                                                                                                                                
                          AMENDMENT 3                                                                                       
                                                                                                                                
     OFFERED IN THE SENATE                BY SENATOR GIESSEL                                                                    
     TO: CSSB 51(RES), Draft Version "R"                                                                                        
                                                                                                                                
     Page 1, following line 7:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Section  1. The  uncodified law  of the  State of                                                                
     Alaska is amended by adding a new section to read:                                                                         
          LEGISLATIVE INTENT. (a) It is the intent of the                                                                       
     legislature  to continue  to contest  the authority  of                                                                    
     the United States Environmental Protection Agency to                                                                       
               (1)  preempt a decision of the legislature                                                                       
     related  to the  development  of state  land or  water,                                                                    
     including by designating  water as outstanding national                                                                    
     resource water;                                                                                                            
               (2)      control   the   authority   of   the                                                                    
     legislature  to decide  which land  or water  should be                                                                    
     off limits to development; and                                                                                             
               (3)  determine whether to remove an                                                                              
     outstanding national resource water designation.                                                                           
          (b) The legislature encourages the attorney                                                                           
     general to  defend the  state's sovereign  interests in                                                                    
     matters related to designation  of water as outstanding                                                                    
     national resource  water, especially  designations that                                                                    
     limit development  of land selected by  the state under                                                                    
     sec. 6  of the Alaska  Statehood Act of 1958  (P.L. 85-                                                                    
     508; 72 Stat. 339), as amended."                                                                                           
                                                                                                                                
     Page 1, line 8:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill section accordingly.                                                                           
                                                                                                                                
3:44:01 PM                                                                                                                    
SENATOR COGHILL objected for discussion purposes.                                                                               
                                                                                                                                
SENATOR  GIESSEL explained  that  Amendment 3  is uncodified  law                                                               
that  is  essentially calling  out  the  State of  Alaska's  10th                                                               
Amendment  right. Amendment  3 is  intent  language which  pushes                                                               
back against  federal commandeering. She  defined "commandeering"                                                               
as follows:                                                                                                                     
                                                                                                                                
       Commandeering refers to a federal requirement that                                                                       
        state officials enact, administer, or enforce a                                                                         
     federal regulatory program.                                                                                                
                                                                                                                                
She opined that  the 10th Amendment is quite clear  that there is                                                               
a  separation  of  powers and  that  separation  preserved  state                                                               
sovereignty  when  the 10th  Amendment  was  written. The  intent                                                               
language  in the  amendment  is  calling out  that  the State  of                                                               
Alaska  continues  to  question  the  authority  of  the  federal                                                               
government to force the state into a federally-mandated program.                                                                
                                                                                                                                
SENATOR  REINBOLD  thanked  Senator   Giessel  for  offering  the                                                               
amendment. She said she is a big believer in state's rights.                                                                    
                                                                                                                                
3:45:34 PM                                                                                                                    
SENATOR COGHILL removed his objection.                                                                                          
                                                                                                                                
3:45:41 PM                                                                                                                    
CHAIR  BIRCH  announced  that   without  objection,  Amendment  3                                                               
passed.                                                                                                                         
                                                                                                                                
He noted  that the committee  has three additional  amendments by                                                               
Senator Kawasaki,  all of which  relate to subsection (b)  of the                                                               
bill,  which  were  removed  by Amendment  2.  He  asked  Senator                                                               
Kawasaki if he wished to offer his amendments.                                                                                  
                                                                                                                                
SENATOR KAWASAKI answered no.                                                                                                   
                                                                                                                                
3:46:00 PM                                                                                                                    
CHAIR BIRCH held SB 51 in committee.                                                                                            
                                                                                                                                
3:46:21 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Birch adjourned the Senate Resources Standing Committee                                                                   
meeting at 3:46 p.m.                                                                                                            

Document Name Date/Time Subjects
SB51 Amendments 4.8.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 DOL Letter to SRES 4.5.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 Legal Services Memo 3.29.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 EPA Email to DEC Re Undesignation 1.29.16.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 Laura Stats Email 4.1.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 George Campbell Email 3.27.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 Lynette Campbell Email 3.27.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51
SB51 SEACC Letter 4.2.19.pdf SRES 4/8/2019 3:30:00 PM
SB 51