Legislature(2003 - 2004)
03/10/2003 03:34 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 10, 2003
3:34 p.m.
MEMBERS PRESENT
Senator Scott Ogan, Chair
Senator Thomas Wagoner, Vice Chair
Senator Fred Dyson
Senator Ben Stevens
Senator Kim Elton
MEMBERS ABSENT
Senator Ralph Seekins
Senator Georgianna Lincoln
OTHER LEGISLATORS PRESENT
Representative Paul Seaton
Representative Les Gara
COMMITTEE CALENDAR
Executive Order 106 - Coastal Policy Council and Office of
Coastal Management to DNR
SCHEDULED BUT NOT HEARD
Executive Order 107 - Fish Habitat Functions to DNR
HEARD AND HELD
PREVIOUS ACTION
EO 106 - No previous action to record.
EO 107 - No previous action to record.
WITNESS REGISTER
Mr. Kevin Duffy
Acting Commissioner
Department of Fish & Game
PO Box 25526
Juneau, AK 99802-5226
POSITION STATEMENT: Presented EO 107 for the Administration
Commissioner Tom Irwin
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Presented EO 107 for the Administration
Chris Kennedy
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about EO 107
Aurah Landau
Southeast Alaska Conservation Council
419 6th St.
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Bruce Baker
PO Box 211384
Auke Bay, AK
POSITION STATEMENT: Opposes EO 107
Bruce Schactler
PO Box 2254
Kodiak, AK 99615
POSITION STATEMENT: Supports EO 107
Owen Graham
Alaska Forest Association
PO Box 9023
Ketchikan, AK 99901
POSITION STATEMENT: Supports EO 107
Marilyn Crockett
Alaska Oil and Gas Association (AOGA)
121 West Fireweed Lane
Anchorage, Alaska 99503
POSITION STATEMENT: Supports EO 107
Roberta Highland
Kachemak Bay Conservation Society
3734 Ben Walters Lane #202
Homer, AK 99603
POSITION STATEMENT: Opposes EO 107
Bob Churchill
Alaska Fly Fishers
3415 Wentworth
Anchorage, AK 99508
POSITION STATEMENT: Opposes EO 107
Garvan Bucaria
PO Box 870298
Wasilla, AK 99687
POSITION STATEMENT: Opposes EO 107
Nancy Morris
No address provided
POSITION STATEMENT: Opposes EO 107
Doug Yates
No address provided
POSITION STATEMENT: Opposes EO 107
Tim Ciosek
PO Box 2911
Sitka, AK 99835
POSITION STATEMENT: Opposes EO 107
Julie Decker
Southeast Alaska Dive Fishery
Box 2138
Wrangell, AK 99929
POSITION STATEMENT: Supports EO 107
Gabriel Scott
Cascadia Wildlands Project
PO Box 853
Cordova, AK 99574
POSITION STATEMENT: Opposes EO 107
Frank Rue
7083 Hendrickson Rd.
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Keith Bayha
10443 High Bluff
Eagle River, AK
POSITION STATEMENT: Opposes EO 107
Bill Stevens
Cassandra Energy Corporation
Kenai, AK
POSITION STATEMENT: Supports EO 107
John Winther
Box 509
Petersburg, AK
POSITION STATEMENT: Supports EO 107
Steve Borrell
Alaska Miners Association
3305 Arctic
Anchorage, AK 99503
POSITION STATEMENT: Supports EO 107
Mike Sallee
PO Box 7603
Ketchikan, AK
POSITION STATEMENT: Opposes EO 107
Paul Shadura
Kenai Peninsula Fishermen's Association
Soldotna, AK
POSITION STATEMENT: Encouraged members to improve EO 107
Tadd Owens
Resource Development Council
121 W Fireweed #250
Anchorage, AK 99503
POSITION STATEMENT: Supports EO 107
Scott Metzger
PO Box 999
Cordova, AK 99574
POSITION STATEMENT: Opposes EO 107
Robert Zyanich
Alaska Seine Boat Owners
726 O Place #201
Anchorage, AK 99501
POSITION STATEMENT: Supports EO 107
Deb Spencer
PO Box 619
Pelican, AK
POSITION STATEMENT: Urged the Legislature to fully review the
impacts of EO 107 before taking action
Dick Coose
PO Box 9533
Ketchikan, AK 99901
POSITION STATEMENT: Supports EO 107
Dr. David Person
148 Beacon Hill Lane
Ketchikan, AK 99901
POSITION STATEMENT: Opposes EO 107
Dr. Eric Knudsen
5000 Whispering Spruce
Anchorage, AK 99516
POSITION STATEMENT: Opposes EO 107
Joel Bennett
Defenders of Wildlife
15255 Pt. Louisa Rd.
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Paula Terrell
Alaska Marine Conservation Council
5025 Thane Rd.
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Jan Dawe
Alaska Boreal Forest Council
PO Box 84530
Fairbanks, AK 99708
POSITION STATEMENT: No position on EO 107, asked questions
Dave Hanna
PO Box 20834
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Jan Konigsberg
Trout Unlimited
1399 W 34th
Anchorage, AK 99503
POSITION STATEMENT: Opposes EO 107
Harold Heinze
2917 Jackson
Juneau, AK 99801
POSITION STATEMENT: Supports EO 107
Mike Robbins
ASEA Local 52
626 F Street
Anchorage, AK 99501
POSITION STATEMENT: Opposes EO 107
Bill Hauser
3621 Hazen Circle
Anchorage, AK 99515
POSITION STATEMENT: Opposes EO 107
Mack Meiners
Kodiak Seiners Association
Kodiak, AK
POSITION STATEMENT: Supports EO 107
Ben Kirkpatrick
521 W 12th St.
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Maggie Wigen
General Delivery
Tenakee Springs, AK
POSITION STATEMENT: Opposes EO 107
Josh Pierce
6446 West Circle
Anchorage, AK 99516
POSITION STATEMENT: Opposes EO 107
Doug Hill
PO Box 220236
Anchorage, AK
POSITION STATEMENT: Opposes EO 107
Eric Lee
PO Box 858
Petersburg, AK
POSITION STATEMENT: Opposes EO 107
Neil MacKinnon
Hyak Mining Company
Juneau, AK
POSITION STATEMENT: Supports EO 107
Chip Dennerlein
1627 W 14th Ave.
Anchorage, AK 99501
POSITION STATEMENT: Opposes EO 107
Steve Albert
17708 Kiloaua
Eagle River, AK 99577
POSITION STATEMENT: Opposes EO 107
Katherine Paul
Juneau, AK
POSITION STATEMENT: Opposes EO 107
Ellen Simpson
2900 Porcupine Trail Rd.
Anchorage, AK 99516
POSITION STATEMENT: Opposes EO 107
Celia Rosen
3711 Amber Bay Loop
Anchorage, AK 99515
POSITION STATEMENT: Opposes EO 107
Jerry McCune
United Fishermen of Alaska
211 4th Street, Suite 110
Juneau, Alaska 99801-1172
POSITION STATEMENT: Supports EO 107
Rodger Painter
PO Box 20704
Juneau, AK
POSITION STATEMENT: Asked committee members to hold an oversight
hearing next year to review how the transfer is working.
Cevin Gilleland
19136 Birchwood Loop
Eagle River, AK 99567
POSITION STATEMENT: Opposes EO 107
Larry Houle
Alaska Support Industry Alliance
4220 B St.
Anchorage, AK 99503
POSITION STATEMENT: Supports EO 107
Jeanne Walter
19658 Creek Way
Chugiak, AK 99567
POSITION STATEMENT: Opposes EO 107
Cindy Anderson
Serenity Circle
Anchorage, AK 99502
POSITION STATEMENT: Opposes EO 107
Daniel Sharp
2821 Cutwater Ct.
Anchorage, AK 99516
POSITION STATEMENT: Opposes EO 107
ACTION NARRATIVE
TAPE 03-10, SIDE A
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 3:34 p.m. Senators Wagoner, Stevens, Elton
and Chair Ogan were present. Senator Dyson arrived shortly after
the committee convened. The first order of business to come
before the committee was EO 107.
EO 107 - FISH HABITAT FUNCTIONS TO DNR
MR. KEVIN DUFFY, Acting Commissioner of the Alaska Department of
Fish and Game (ADF&G), told members that he and Commissioner
Irwin were present to provide a description of the Governor's
proposal to move the functions and positions of the Division of
Habitat and Restoration from ADF&G to the Department of Natural
Resources (DNR), along with a number of functions that will be
incorporated into the Divisions of Sport Fish, Wildlife
Conservation, Commercial Fish, and the Exxon Valdez Oil Spill
(EVOS) office. He provided members with a handout detailing that
proposal. He noted that one page of the handout provides a
description of the anticipated layoffs and position deletions.
The handout also includes a proposed organizational chart of DNR
and a chart of where the habitat biologists will be located in
the Division of Sport Fish.
COMMISSIONER DUFFY told members that he and Commissioner Irwin
talked about some of these issues last Friday. He said the focus
of EO 107 is to streamline permit processes. It will move a
significant number of habitat biologists who currently work for
ADF&G to DNR. The Division of Habitat and Restoration has many
talented biologists; he hopes that expertise is transferred to
DNR through this effort so that the [two departments] have a
relationship in which the streamline permitting functions with
habitat biologists' presence is effective. He and Commissioner
Irwin will sign a memorandum of agreement describing the new
structure and how the relationship between ADF&G and DNR will
work.
MR. TOM IRWIN, Commissioner of DNR, introduced the staff that
worked on EO 107: Kerry Howard, Kevin Brooks and Randy Bates;
and Nancy Welsh and Chris Kennedy (who were participating via
teleconference). He told members that these staff members
represent the "best of the best" and are from ADF&G, DNR, and
the Department of Law (DOL). He welcomed the biologists who will
be transferred to DNR.
COMMISSIONER IRWIN showed and described to members an
organizational chart of DNR. The regional and field offices will
be changed to seven area offices located in Anchorage, Kenai,
Mat-Su, Fairbanks, Juneau, Petersburg and Prince of Wales. They
will report to an operations manager who will report to a
director linked to the Commissioner's Office, giving the habitat
biologists a direct line to the Commissioner's Office. He told
members that the memorandum of agreement is very appropriate. He
and Commissioner Duffy feel the two departments will need a tie-
in, which the memorandum will do.
COMMISSIONER IRWIN said he heard a presentation a few weeks ago
named "Perception is Reality," which was based on the Frazer
Report. That report is mining related but speaks for [the
mining] industry in general. That report is a summary of the
results of a poll of all of the large significant mining
companies worldwide about the desirability of investing in
mining activities in each state, province, and country
throughout the world. Alaska, as a desirable location in which
to invest, has dropped in that poll during the last several
years. Last year, on a scale from zero to 100, public companies
ranked Alaska 50th based on their perception of the desirability
of investing here. He said that perception is reality - when
people vote with their purses they take their exploration and
development dollars elsewhere. He feels it is critical, in the
messages DNR sends to the outside world, that the state has very
efficient procedures that protect habitat and the environment.
He stated, "With that said, we fully need to and we can and we
will change the perception and move resource development forward
in our state."
CHAIR OGAN noted that Senators Seekins and Lincoln had excused
absences and that Representative Seaton joined the committee. He
then took questions for the commissioners.
SENATOR ELTON referred to the new DNR organizational chart and
pointed out that the Sitka and Ketchikan habitat offices would
be closed. He asked if any other habitat offices in the state
would be closed.
COMMISSIONER IRWIN said he did not believe so.
SENATOR ELTON asked if the only new office is in the Mat-Su.
COMMISSIONER IRWIN replied, "These were designed based on
workload. The groups that were together wanted to prioritize
where the quantity of work was, what was required, and the
decision was made that this is the most efficient, effective way
that we can serve Alaska and access the permitting to the
habitat." He affirmed the Mat-Su office is the only new office.
SENATOR ELTON said he has heard the Frazer Report mentioned
before but he feels the Division of Habitat and Restoration move
creates a certain amount of cognitive dissidence because both
Commissioner Irwin and the Governor have pledged that no habitat
degradation will occur. He said the only way Alaska will improve
its rank of 50th would be to make changes that could degrade
habitat. He asked how the business climate can be improved
otherwise.
COMMISSIONER IRWIN said it is all about efficiency: people
working together, communicative steps, streamlining, and
conveying to the outside world that the state will not accept
any degradation of habitat. He emphasized that people working
together in the same groups communicate therefore the steps are
much more efficient. He said this approach is based on the
business and environmental success of large projects in Alaska.
SENATOR ELTON said it is difficult to separate the definition of
"efficiency" from the definition of "layoffs." He said the
handout shows that 14 biologist positions will be eliminated in
this process. He thought that may not induce efficiency but
instead may change a system that has processed 2,000 permits in
14 or 15 days each.
COMMISSIONER IRWIN said one thing to be mindful of is that the
routine permits need to continue. Those are the simple permits
that could be labeled as standard. He said on the other side of
the coin are the large significant project issues that must be
addressed. He said he has experienced, during his entire career,
that when the right decision has to be made about critical
issues, the process works when those involved work in the same
areas, discuss the same issues and have the same priorities. He
said it is important to understand that the habitat employees in
DNR will have their own system of accountability, which is why
that office was set up separately. He does not think, when one
sees the people involved in those jobs, they will be concerned
that DNR will run over the environment.
COMMISSIONER DUFFY asked Senator Elton to keep in mind that
biologists do a whole host of activities, not just permitting.
He explained:
It is very important to us that with this executive
order that an adequate number of trained habitat
biologists who deal with permitting are transferred
over to DNR. There [are] a number of other functions
within the department that aren't necessarily
permitting and within that whole paradigm, Senator, is
where there [are] some efficiencies and some
reductions in staff. So, it is not necessarily just in
the permitting arena but it's all the activities that
the current Division of Habitat and Restoration
operates.
CHAIR OGAN asked what statutory functions will be eliminated
with this transfer.
COMMISSIONER DUFFY said no Title 16 permitting responsibilities
will be eliminated.
CHAIR OGAN asked if everything the Division of Habitat and
Restoration is required to do in ADF&G by statute will still be
required under DNR.
COMMISSIONER DUFFY said that is correct.
CHAIR OGAN asked Commissioner Irwin to address a concern that he
will be the "fox watching the henhouse."
COMMISSIONER IRWIN said he believes his record speaks for
itself. He said DNR will still be accountable to the legislature
and the governor and he has never compromised the environment
for business. By working with both interests in mind, he has
created a situation where both sides have won in the past. He
said this system has clear sideboards and DNR will be
accountable. He pointed out that every commissioner who takes
this oath of office swears to work for all people in Alaska.
CHAIR OGAN said, like many people, he lives in Alaska to hunt
and fish and because he loves the natural resources. He said he
will publicly commit to personally take action if someone can
show him where the habitat has been damaged as a result of this
transfer taking place. He said he is very pro-development but he
does not want to see the resources that God has endowed Alaska
with compromised in any way. He believes the Constitution set up
a tension between the legislature and the executive branch; the
legislature's role is to oversee what the executive branch is
doing and to set policy.
COMMISSIONER IRWIN said he believes that is most appropriate.
REPRESENTATIVE SEATON informed the audience that the Fisheries
Committee will be holding a hearing on EO 107 on Monday night
from 7:00 to 10:00 p.m. He then referred to the DNR
organizational chart and pointed out that all of the functions
of the Office of Habitat Management and Permitting will be
delegated to the deputy commissioner rather than the
commissioner. He asked Commissioner Irwin what his function will
be within that structure.
COMMISSIONER IRWIN deferred to Chris Kennedy for a detailed
answer but said the purpose is to provide a mechanism for
elevation. He explained:
The elevation - again, we kept them separate so you
could still have the two competing entities - one may
want development and one may want to protect habitat.
We very much wanted that progression. You would get up
to the deputy commissioner where you'd have one final
elevation to the commissioner who again has the
accountability to make sure both sides are protected.
REPRESENTATIVE SEATON asked if the deputy commissioner or the
commissioner will have the authorities under the permitting
process.
COMMISSIONER IRWIN again deferred to Mr. Kennedy.
SENATOR ELTON asked if the commissioner will be allowed to get
involved in the decision making down the line since he will be
the first point of appeal.
CHAIR OGAN announced an at-ease for the purpose of rearranging
the room to accommodate the large number of participants. When
CHAIR OGAN reconvened the meeting, he asked committee members to
limit their questions to give the many people who have come to
testify priority at this time. He then asked Mr. Kennedy to
respond to Senator Elton's question.
MR. CHRIS KENNEDY, assistant attorney general, told members the
overall thrust of the executive order was to preserve the
separate functions of the habitat staff where those need to be
maintained as an independent influence on policy. He said that
is most true in the Forest Practices Act. The legislature set up
a series of checks and balances between the habitat staff, who
reported to the commissioner of ADF&G, and the forestry staff,
who reported through the state forester to the commissioner of
DNR. He explained that since both the habitat and forestry staff
will reside in DNR, it was necessary to create a mechanism to
preserve those checks and balances. To do that, the habitat
staff has been assigned to the deputy commissioner of DNR, a new
position, while the forestry functions have been assigned
directly to the state forester. The two positions will be
legally equal; the commissioner can resolve any impasse between
them.
SENATOR BEN STEVENS asked if Senator Elton was asking whether
the commissioner's decision will override the deputy
commissioner's decision.
SENATOR ELTON said his understanding, under EO 107, is that
powers are delegated to the deputy commissioner and the first
point of appeal is to the commissioner. He questioned whether
the commissioner could be involved in any of the new Division of
Habitat and Restoration's processes.
SENATOR BEN STEVENS asked Commissioner Duffy whether the ADF&G
commissioner currently has that same authority on these
decisions.
COMMISSIONER DUFFY said historically, as decisions get elevated
in the department, the commissioner makes the decisions on these
types of issues rather than the deputy commissioner.
SENATOR BEN STEVENS asked if under the new structure, the
commissioner will have overruling authority over the deputy
commissioner's decisions.
COMMISSIONER DUFFY said he cannot answer that definitively from
ADF&G's standpoint.
SENATOR BEN STEVENS asked the same question of Commissioner
Irwin.
COMMISSIONER IRWIN asked that Mr. Kennedy clarify the procedure.
SENATOR BEN STEVENS said the point he is trying to make is that
the commissioner always has the overruling authority in the
decision making process in any department.
MR. KENNEDY said he believes the structure will be different
now. The deputy commissioner's decision is the final agency
action. An appeal would be made to the Superior Court. The
deputy commissioner does report to the commissioner in the same
way the governor could have intervened in the past in a dispute
between the commissioners of ADF&G and DNR. The commissioner of
DNR can now intercede or mediate a dispute between the state
forester and the deputy commissioner.
MR. KENNEDY said he would have to talk about a specific instance
to give a more direct answer on how the deputy commissioner
would interact with the commissioner.
SENATOR BEN STEVENS said he would like a better definition and
asked for an example.
MR. KENNEDY said a common example would be an anadromous stream
permit under AS 16.05.870. If the staff denied a permit, a
hearing would be held under the Administrative Procedures Act
(APA). The hearing officer would recommend a decision to the
deputy commissioner of DNR who would make the final department
decision on that permit.
CHAIR OGAN announced that Representative Gara had joined the
committee.
SENATOR ELTON said his understanding is that AS 44.37.011(b)
provides that the deputy commissioner will make the decision and
the first appeal would be made to the commissioner. His
interpretation is that if the commissioner is the first point of
appeal, the commissioner could not be involved in decisions that
were made up to the deputy commissioner level.
CHAIR OGAN asked Mr. Kennedy to get back to committee members
with a response.
MR. KENNEDY told members he was not really speaking to the issue
of whether the commissioner could be involved in the decision
and said he would get back to committee members.
REPRESENTATIVE SEATON ccommented that EO 107 establishes the
authority with the deputy commissioner, not the commissioner.
COMMISSIONER DUFFY said that both he and Commissioner Irwin have
open door policies and would be happy to provide committee
members with a thorough evaluation.
CHAIR OGAN announced the committee would take public testimony.
He said that due to the large number of participants, the
committee will have to limit the testimony time and that he
would rotate throughout the legislative teleconference sites.
MS. AURAH LANDAU, representing the Southeast Alaska Conservation
Council (SEACC), a coalition of 18 volunteer community
conservation groups and 14 communities around Southeast Alaska,
told members that SEACC's mission is to guard the integrity of
Southeast Alaska's natural resources and to provide for
sustained, balance use of them. SEACC has talked to people
around the region to see how EO 107 will potentially impact
communities. Those people have said that commercial charter
operators and guides are dependent on the health of wildlife
habitat. The forests and streams are enormous economic engines
for the towns around Southeast. In 1953, Alaska was declared a
natural disaster area because fish traps decimated the
fisheries. Protection of fisheries resources was a driving force
behind statehood and the first legislators wisely solved the
problem of bad management by assigning fisheries to ADF&G to
ensure that Alaska's renewable wildlife resources and habitat
are managed on sustained yield principles. That is a sound
approach that balances the interests of all Alaskans now and for
future years.
MS. LANDAU informed members that Southeast residents want
logging jobs but they want enforcement of straight laws that are
designed to protect the resources. Many habitat permits are
issued after consultation with development sponsors and private
landowners and the original proposals are modified to create
better projects. If the Division of Habitat and Restoration is
transferred to DNR, protection of wildlife habitat will not be
on equal footing with resource development. Without balanced and
knowledgeable oversight, projects could be permitted without
modifications that benefit fish habitat, such as larger culverts
and avoiding spawning areas. Fish habitat is lost one piece at a
time; the cumulative effects have compounded impacts. Prevention
of habitat loss is more economical than habitat restoration.
MS. LANDAU cautioned that one only has to look to the Pacific
Northwest to see that salmon runs are only a fraction of what
they once were, partially due to habitat loss. Those states are
spending hundreds of millions of dollars to restore those
habitats and most fishing jobs have vanished.
MS. LANDAU said an example of another way EO 107 could cause
significant problems is in Section 18, which repeals the
requirement that the state forester provide detailed plans of
operations for logging. Those plans show stream crossings,
anadromous and high value resident fish streams, buffers to be
retained, and other ways to prevent non-point source pollution.
This information is critical to people who live near a sale area
as well as other agencies looking at the project to determine
what other resources will be affected. Removing this type of
public information ensures further conflicts between communities
and developers.
MS. LANDAU said protecting fish and wildlife habitat is very
important to all Alaskans. She thanked the committee for holding
public hearings and stated there must be better ways to
streamline permitting that do not eliminate vital checks and
balances. She urged members to support the resolution opposing
EO 107 and to bring it to the full Senate for a vote.
SENATOR DYSON asked what process SEACC used to verify that its
members support the position Ms. Landau presented.
MS. LANDAU repeated that SEACC has 18 member groups and all
SEACC decisions are made on the board level with representatives
from each community. She explained, "This is something that they
were concerned about and specifically spoke to us - asked us to
get information about - get information to our members about
with a series of many calls, lots of research into what
potentially this could mean and then understanding what
particular projects had been stopped and that sort of thing."
SENATOR DYSON asked if the decision to present a viewpoint was
made at a board level and whether Ms. Landau was inferring that
each board member went through a rigorous process to contact
their membership.
MS. LANDAU said each board member uses a different process but
they are elected by their groups and are comfortable in giving
staff advice and recommendations.
MR. BRUCE BAKER, a Juneau resident, urged members to bring the
resolution to reject EO 107 to the Senate floor for a vote. He
said the state needs to maintain the checks and balances between
ADF&G and DNR that have benefited Alaska's economy since
statehood. ADF&G's fundamental mission is to protect Alaska's
fish and wildlife resources. DNR's fundamental mission is to
develop the state's other natural resources. These two missions
balance each other in a way that ensures adequate protection of
the state's economically important fish and wildlife habitats
while allowing legitimate natural resource development to
proceed in a timely manner. By eliminating the permitting
authority of one agency, EO 107 eliminates essential checks and
balances.
MR. BAKER opined that EO 107 is a solution looking for a problem
because the timeliness of ADF&G's permitting is exemplary. Of
1,926 permit applications received last year, over 99 percent of
the applicants either received permits or were told they did not
need one. The average processing time was only 14 days. He
pointed out a process is already in place that allows
commissioners to quickly resolve issues consistent with the
Governor's policies. He pointed out that DNR has a backlog of
over 700 permit applications, some 20 years old, and 3,000
miscellaneous applications, such as water right transfers, that
have yet to be processed. He noted the Administration plans to
layoff 22 ADF&G habitat staff and transfer 36 others to DNR but
believes to boost its natural resource development without
costly delays and lawsuits, Alaska needs to increase, rather
than eliminate, habitat staffing and leave it in the department
that has expertise to draw on. He provided committee members
with two ADF&G memoranda with specific information that was not
available to the Governor when he made his public statements. He
said that EO 107 is not about making state government more
efficient: it is a thinly veiled effort to lower the habitat
protection bar for permit applicants.
SENATOR ELTON asked Mr. Baker to describe his experience with
the Division of Habitat and Restoration.
MR. BAKER told members he is currently a natural resources
consultant and is testifying strictly on his own behalf. He
retired from ADF&G 10 years ago, where he served as the deputy
director of the Division of Habitat and Restoration for about 11
years. He said he is very familiar with the degree of commitment
and interaction between the departments and how well the
existing system works.
TAPE 03-10, SIDE B
MR. BRUCE SCHACTLER, testifying from Kodiak, said that EO 107
may save over $1 million from the Commercial Fisheries budget.
He completely supports the Governor's position on this matter
and does not believe there will be any degradation of habitat.
He agreed with Chair Ogan that the Legislature will call for a
review if problems occur and stated support for EO 107.
MR. OWEN GRAHAM, representing the Alaska Forest Association,
stated support for EO 107. He said the current permitting and
Alaska Coastal Management Program (ACMP) commenting process
under ADF&G is unnecessarily costly and contentious. Alaska
needs an agency that encourages responsible development rather
than an agency that believes in protecting the environment from
development. State support for development is essential to
restore resource industry jobs, particularly timber industry
jobs. In addition, significant cost savings should result.
MS. MARILYN CROCKETT, Deputy Director of the Alaska Oil and Gas
Association (AOGA), told members that AOGA spent 18 months
identifying permitting programs that need updating and
streamlining. Early in the process, AOGA adopted a guiding
principle, which was to accomplish permit streamlining without
compromising the environment or safety standards. That principle
mirrors the Administration's proposals. These proposals are long
overdue and will be giant steps forward in making Alaska more
competitive with other resource development states and
provinces. AOGA appreciates the work and commitment of the
Governor and the Legislature to move forward in this area.
MS. ROBERTA HIGHLAND, Kachemak Bay Conservation Society (KBCS),
stated opposition to EO 107. KBCS urges committee members to
recommend overriding EO 107 and to keep the Division of Habitat
and Restoration within ADF&G. Protecting fish and wildlife is a
bipartisan issue: as the habitat of fish and wildlife goes, so
go those resources. Salmon populations in the Lower 48 have been
greatly reduced by habitat modification to the point of
endangered species status for some populations. Alaska's
economic development needs the careful oversight of an
independent watchdog that will protect the public interests by
protecting its resources. Placing habitat permitting within DNR
makes protection of fish and wildlife secondary to DNR's mission
to conserve and develop state lands. ADF&G currently has habitat
permitting authority over projects on various types of land
ownership, including private and federal lands. DNR and ADF&G
have very different mandates. K
MS. HIGHLANDS said that KBCS is further concerned with DNR's
development mandate. The Title 16 requirements regarding fish
passage will increase protection of our fisheries. An example of
DNR's less than adequate protection of fisheries streams
occurred in 1992 when the Division of Oil and Gas proposed a
reduction or elimination of some production rig setbacks. The
state will lose its system of checks and balances and the
oversight of fish and wildlife. DNR's primary mission to develop
land will take precedence. The physical separation of habitat
biologists from ADF&G will make sharing of essential research
more difficult, time consuming and expensive. The facts do not
show any clear and convincing reasons to change the current
system, a system that has worked well for more than 40 years.
MR. BOB CHURCHILL, Alaska Fly Fishers, told members that Alaska
is one of the premier destinations for wilderness fishing
experiences for people from all over the world. This industry
not only brings dollars into the state, it also provides for a
great many local businesses, both rural and urban. His concern
with moving habitat biologists out of ADF&G is the contentious
issue of buffer zones along streams and culverts. These agencies
were intentionally placed in Alaska's constitution to provide
accountability.
MR. GARVAN BUCARIA, a retired biologist, who worked for both
state and federal agencies and on oil rigs, said he has seen
some problems over the years such as mercury contamination of
fish resources and forest areas denuded, principally in the
[indisc.] reservoir in North Carolina. He is also aware of lead
problems at the Red Dog mine. EO 107 is not compatible with
objective decision-making. He referred to written testimony he
submitted to members and said items 4, 5, and 6 relate to monies
that might be encumbered because of shifting the organizational
structure. He also noted that people are not necessarily
compatible just because they work in the same agency.
CHAIR OGAN clarified that the Red Dog Mine has improved the
quality of local streams to the point that fish are inhabiting
them for the first time.
MS. NANCY MORRIS, a sports fisher from Bristol Bay, told members
she has dealt with the permitting process several times and has
never experienced efficiency problems with ADF&G. She expressed
concern that EO 107 removes accountability because, "You cannot
have two entities that are not in cahoots with each other being
able to be objective." Development projects in the Bush are
often initiated by outside interests; residents do not feel
their interests are being looked after. She said she has never
seen ADF&G work against development; instead, it has had a major
role in taking steps to ensure responsible development. If ADF&G
is removed from the permitting process, that will no longer be
the case. She asked that the status quo remain.
MR. DOUG YATES, testifying from Fairbanks, expressed opposition
to EO 107 because the transfer is egregious to the long-term
best interests of the state. He said the move is a transparent
effort to give more power and control to resource developers at
the expense of Alaska's fish and game resources. Rather than
make it easier to log and drill, the precarious condition of
Alaska salmon should be considered. Throughout the Pacific
Northwest, hundreds of salmon runs have gone extinct or are
seriously depleted. The same will occur in Alaska if EO 107
takes effect. EO 107 protects corporations, not the people of
the state.
MR. TIM CIOSEK, a Sitka resident, stated strong opposition to EO
107. Many of his friends are commercial fishermen, charter
operators and guides. All of these people rely on a healthy and
productive environment. This transfer will eliminate a critical
system of checks and balances and any meaningful environmental
review of proposed projects. In addition, the elimination of
habitat biologists will result in weaker field review that will
lead to permit delays. He asked members to disapprove EO 107.
MS. JULIE DECKER, Director of the Southeast Alaska Regional Dive
Fishers Association (SARDFA), said SARDFA supports resource
protection. SARDFA believes that a healthy resource is necessary
to have a healthy industry. SARDFA is confident that DNR will
fulfill the responsibilities of Title 16. EO 107 will protect
fish and wildlife habitat and make government more efficient.
MR. GABRIEL SCOTT, Alaska field representative for the Cascadia
Wildlands Project based in Oregon, said he would like to give a
concrete example of the impact EO 107 would have on the Katalla
exploration project. The Cassandra Energy Corporation is
proposing to explore for oil in the Copper River delta, an
incredibly important fish habitat. All five species of wild
Pacific salmon and two species of trout are at risk. That delta
supports two fishing guide lodge businesses, as well as
commercial and subsistence fisheries. EO 107 will kill salmon,
breach the public trust, and result in increased conflict. All
other agencies involved in the permitting process have relied
extensively on the Division of Habitat and Restoration. The
Division of Habitat and Restoration biologists have done a great
deal of logistical planning work for the oil company. Those
biologists have conducted three separate site inspections; no
one else has with the exception of the USFS. DNR's biologists
have never been to Katalla. The Cassandra Energy Corporation
originally proposed bringing a couple hundred barge loads up the
Katalla River, traveling over one-half mile of salmon spawning
habitat. Division of Habitat and Restoration biologists
conducted stream channel surveys on the river, which showed
those areas are only three feet deep while Cassandra planned to
use barges with a four to five foot draft. The Division of
Habitat and Restoration issued a permit with stipulations
containing the maximum size of the barge and the minimum depth
of river travel. After EO 107 goes into effect, it is highly
unlikely that any state official will ever monitor standard
barge operations near spawning habitat. That means permit
stipulations will have to be revised by someone with no
knowledge of the Katalla River. The lead agency authorizing
Katalla is the USFS, which bases many of its decisions on the
Division of Habitat and Restoration's decisions.
MR. FRANK RUE, former commissioner of ADF&G, said EO 107 is a
very significant issue that was dealt with by the first
legislature of Alaska. The Division of Habitat and Restoration
program has been in existence for 43 years, therefore EO 107
will make a significant change.
MR. RUE informed members that he worked for DNR for nine years
and has nothing but admiration for DNR employees. He worked with
Tom Irwin when he was with the Fort Knox mine, and feels Mr.
Irwin did a great job getting the mine developed. Mr. Rue said
he also worked as the habitat director for seven years under two
administrations and was the commissioner of ADF&G for eight
years. He stated that this issue is not about personalities; it
is about how the Legislature wants Alaska's fish to be managed
and where it wants to put the priority for that protection. He
provided members with copies of two handouts: one a letter from
the last five commissioners of ADF&G; and a letter he wrote to
Representative Gara in response to questions about the impact of
this move and how it might play out. He then asked to address
some of the myths that are causing people to be too comfortable
with this transfer.
MR. RUE said the first myth is that the level of protection will
remain the same. The second myth is that this approach has been
successful in other states, such as Oregon. Regarding the first
myth, he asked why transfer the division if the level of
protection will remain the same? In response to the rationale
that the transfer will result in a timelier permit process, the
current average permit processing time is 14 days. On a recent
Glen Highway project with 6,000 Coho per acre, ADF&G issued
permits in two hours to enable the developer to get the project
done quickly. He said he does not think the transfer will speed
that up if 22 people are being laid off. It will only be faster
if permits are issued with a rubber stamp. Regarding 107
instream permitting authority, DNR rarely has a presence, so the
transfer will not remove layers of bureaucracy.
MR. RUE said the layers of protection will not remain the same
because the standards of the Anadromous Fish Act and the Fish
Ways Act provide a lot of discretion by containing terms like
"to protect important anadromous fish habitat" and "to give it
proper protection." In the Fish Ways Act, the commissioner
determines when it is necessary to provide a fish way. When the
first legislature passed that statute, it gave that discretion
to the commissioner of ADF&G because the legislature wanted a
cabinet level person responsible for getting out the catch. The
legislature felt that person would give it the proper weight
when decisions were made. If this change happens, the deputy
commissioner of DNR, a department whose mandate is not to get
out the catch, will make the decisions. DNR's mission to develop
oil, gas, timber, and other resources is very legitimate.
However, that downgrading of responsibility will give higher
stature to a potato than to salmon spawning habitat. That potato
will have a cabinet level commissioner to look out for the
Division of Agriculture's interests. Salmon will have the deputy
commissioner as their final advocate.
CHAIR OGAN said with all due respect, he believes the
commissioner is looking out for the farmers more than the
potatoes.
MR. RUE said the USFS refused to talk to ADF&G about instream
structures for years and would not apply for Title 16 permits
because, as a federal agency, it argued that it had sovereignty.
The USFS had internal biologists that looked at the road plans,
but the road engineer or the forester in the U.S. Department of
Agriculture made the final decision. The USFS and ADF&G finally
signed a memorandum of understanding so that the USFS submitted
all of its plans for stream crossings to ADF&G. ADF&G and the
USFS did a collaborative survey in the Tongass and found that 70
percent of the culverts issued by USFS biologists impeded or
blocked fish. That is when the USFS decided to work with ADF&G.
ADF&G had a similar experience with the Department of
Transportation and Public Facilities (DOTPF) and a lot of old
problems are now being fixed.
MR. RUE's final point was that Oregon has been held up as a
successful model. However, of the 300 stocks of Coho along the
coast, about 100 are extinct. All of Oregon's stocks are on the
endangered species list. EO 107 would make the responsibilities
of ADF&G weaker than Oregon's Department of Fish and Wildlife in
its authority to permit instream structures. In Oregon, DNR
issues the permits but by law it has to give deference to the
Oregon Department of Fish and Wildlife for the standards for the
stream crossings. EO 107 takes ADF&G totally out of the picture.
He said that ADF&G has acted in a timely manner when issuing
permits and if problems occur, the Governor could appoint a new
director of the Division of Habitat and Restoration. However, EO
107 makes a structural change and he expects a significant
downgrade of fish and wildlife in 40 to 60 years.
5:08 p.m.
SENATOR ELTON asked Mr. Rue if he and Mr. Rosier would submit a
written response to the committee on the question of whether
federal agencies will do more of their own assessment work if EO
107 takes effect.
MR. RUE said he believes that federal agencies have often
deferred to ADF&G more often in relation to EO 106, for gravel
pits and North Slope wetland fills. He believes the federal
agencies will take a much more aggressive approach if ADF&G has
no voice. He noted the federal agencies have never involved
themselves in instream permitting because ADF&G has done a good
job of it.
SENATOR BEN STEVENS noted that Mr. Rue said he was the director
of the Division of Habitat and Restoration under Governors
Hickel and Cowper and asked how many people worked in the
Division of Habitat and Restoration during that time period.
MR. RUE said the number was around 60 to 70.
SENATOR BEN STEVENS asked if Governor Knowles then appointed Mr.
Rue as the commissioner of ADF&G in 1994.
MR. RUE said that is correct.
SENATOR BEN STEVENS asked Mr. Rue if he could recall the request
for personnel in the Division of Habitat and Restoration in
1996.
MR. RUE said the Division of Habitat and Restoration staff was
combined with the Exxon Valdez restoration staff that year.
SENATOR BEN STEVENS said the EVOS restoration had a separate BRU
that year.
MR. RUE said he would have to research that information.
SENATOR BEN STEVENS asked if the statutory requirements of the
Division of Habitat and Restoration's authority changed during
Mr. Rue's tenure as director and commissioner.
MR. RUE said the statutory responsibilities did not change
although some of the issues changed. He noted the statutes
changed in 1989 with the Alaska Forest Practices Act, which put
greater responsibility on ADF&G.
SENATOR BEN STEVENS asked what occurred in 2001 to 2002. He
cited from the Division of Habitat and Restoration '96-'03
management plan and gave the following numbers of positions
funded in the Division of Habitat and Restoration BRU:
· in 1996, 12 positions
· in 2000, 16 positions
· in 2001, 20 positions
· in 2002, [indisc. - tape change]
· In 2003, 69 positions.
TAPE 03-11, SIDE A
He asked why a threefold increase occurred between '01 and '02.
MR. RUE explained that a budget restructuring took place and he
would have to look at the BRUs to refresh his memory. He noted
the division did not add that many more people. He believed the
increase resulted from a structural change.
SENATOR BEN STEVENS said the division had a permitting BRU, an
EVOS restoration BRU and one other.
MR. RUE repeated it was simply due to reorganization rather than
a staff increase. The EVOS Trustee Council decided to have ADF&G
manage its program.
SENATOR BEN STEVENS said the EVOS portion stays within ADF&G
under EO 107.
MR. RUE commented:
... when we combined the restoration division, which
you know, it used to be a whole separate division of
fish and game, when the cleanup part changed and we
went into restoration, we got rid of that division and
combined it with habitat so that was another jump in
numbers. And then when Forest Practices happened, we
added some biologists to Forest Practices in the early
- late '89, '90. That was the only times when we saw
significant numbers of positions.
SENATOR BEN STEVENS said when Mr. Rue was director he had about
60 or 70 staff.
MR. RUE said that is correct to his recollection.
MR. KEITH BAYHA told members he is a hunter, fisher, trapper and
a retired biologist with the U.S. Fish and Wildlife Service
(USFWS). He considers the work done by the Division of Habitat
and Restoration biologists to be vital to the protection of the
public trust, fish and wildlife, and water and wetlands. The
role the Division of Habitat and Restoration plays under the
Fish and Wildlife Coordination Act is the key to successful
mitigation of projected damages of resource development to fish
and wildlife habitat and to the enhancement of these resources
when the opportunity is present. That role cannot be
successfully executed from DNR, especially with a 20 percent
reduction in staff. He asked members to reject EO 107 and send a
message to Governor Murkowski that this is not a "rubber stamp"
Legislature.
MR. BILL STEVENS, President of Cassandra Energy Corporation,
stated support for EO 107. He told members he has a five-page
timeline for the Cassandra Energy Corporation's project. After
29 months, that project is still not permitted to get into the
Katalla area. Seven months of that time has been directly due to
the system being broken, partly in the Division of Habitat and
Restoration. He believes it would best be operated under DNR.
MR. STEVENS said he would like to clear up some statements made
earlier about the Katalla project. Never in the plan of
operations was it entertained that Cassandra would use 100-foot
barges with four or five foot drafts. He said he will do
everything he can to make sure no fish or potatoes die from that
project.
CHAIR OGAN said that committee members have been told the permit
turnaround time is two weeks. He said that could mean two weeks
once all of the preliminary work is done but the preliminary
work could take months and be costly. He asked if that is an
accurate assessment.
MR. STEVENS said most of the delays have been with the USFS, not
with the state agencies. The state permit process, since the
first pre-application, has taken about one year. He noted there
has been a tremendous amount of interest and activity involved
in this particular project. It was scrutinized with a fine-
toothed comb resulting in turf wars between agencies.
CHAIR OGAN asked where Cassandra Energy Corporation is
operating.
MR. STEVENS said Cassandra Energy wants to drill from the old
Katalla oil fields under federal land and exploit the oil and
gas rights given to the Chugach Native Corporation back in 1981
or 1982.
He bHe
CHAIR OGAN asked if those fields are in the Yakutat area.
MR. STEVENS said they are in the old town of Katalla, about two
miles East of the Katalla River.
REPRESENTATIVE SEATON asked Mr. Stevens to fax a copy of his
timeline to members.
MR. JOHN WINTHER, a commercial fisherman for 39 years from
Petersburg, stated support for EO 107. He told members that the
community of Petersburg is entirely dependent on commercial
fishing and its residents are confident that DNR will protect
the marine environment. He said he is assuming that the buffer
strip protections will also be transferred to DNR. He told
members that 80 percent of Petersburg's population supported
Governor Murkowski, which he believes makes a strong statement
that they are comfortable with his proposals. He told members he
was on Governor Murkowski's fish and game transition team and
participated on the habitat committee. The information he heard
convinced him the Division of Habitat and Restoration should be
transferred and the permitting system put under one roof.
MR. STEVE BORELL, Alaska Miners Association, stated support for
EO 107. He said EO 107 is the first significant move to
streamline the permit system. The AMA is not opposed to being
regulated in a fair system based on a scientific approach.
Regulations not only protect the environment, they protect the
industry from individual operators who may not want to do what
is correct. This change will not modify the requirements of the
law as they stand today.
MR. MIKE SALLEE told members he lived in Ketchikan most of his
life and has worked as a fish packer, commercial fisherman,
harvest diver, and sawmill owner and operator. He believes the
reasons given for cutting habitat jobs are nebulous at best.
ADF&G has provided rebuttals on each of the cited instances -
the Juneau golf course, the Dorothy Lake hydro-project, False
Creek, Tok Highway reconstruction and others. Regarding previous
comments that DNR will be looking out for the environment, he
asked members to recall that floating fish traps were shut down
when Alaska became a state because a few wealthy companies had a
stranglehold on the salmon resource of Southeast Alaska. He
doubts that a single fish trap owner would have admitted to the
remotest connection to any problem with the salmon resource. He
spoke with some of the representatives of the Alaska Longline
Fishermen's' Association who oppose EO 107. He said although a
SARDFA representative has testified in support of it, he polled
a number of SARDFA members who do not favor EO 107. He asked
members to reject EO 107.
MR. PAUL SHADURA, President of the Kenai Peninsula Fishermen's
Association (KPFA), said KPFA respects the rights of the
Governor to streamline government and improve the economic
welfare of the state. KPFA believes that EO 107 has merits but
also has serious flaws that do not allow for reviews necessary
to protect the environment from overzealous industrialization.
His three main suggestions for modification are:
· The commissioner of ADF&G should retain a voice in the
final permitting process. It is extremely important that
aquatic systems are protected to the highest standards
available. ADF&G is the state specialist that supports our
state's constitutional mandate to sustain and conserve. The
commissioner should have the authority to object, veto,
vote or call for further analysis and public involvement if
he believes that vital habitat will be compromised.
· The new deputy commissioner position within DNR requires a
person with special talents and an ability to not be
influenced by individuals. This position should be required
to go through the full confirmation and administrative
appointment review process.
· The functions of the anadromous fish catalog stay within
ADF&G. There is no reason that function should be delegated
to non-biologist staff. This catalog is the most important
log of fisheries management that tells the public what
systems are performing and which are showing stress. It is
a performance document that acts as a resource history
book.
He encouraged members to reconsider the adoption of EO 107 and
to consider the suggested improvements.
MR. TADD OWENS, Resource Development Council (RDC), stated
support for EO 107 because the current permitting process is
costly and time consuming. He noted that EO 107 retains the
statutory requirements. RDC members do not want or expect the
habitat standards to change. They do expect the process of
permitting a project to become more efficient and predictable.
In every major development sector, Alaska companies are fighting
for capital dollars in a global arena. What is done in the next
few years to improve Alaska's investment climate will have a
profound effect on its economy over the long term.
MR. SCOTT METZGER, a Cordova resident, told members that Mr.
Stevens' statement that a 100-foot long, four-foot draft barge
was never considered is false. That is a matter of record at
ADF&G. He said since its inception, the ADF&G Division of
Habitat and Restoration has done an exemplary job of issuing
permits and protecting Alaska's wild salmon habitat. By
streamlining the habitat permitting division, the overall
process will not, in fact, be streamlined at all. Fewer
biologists will review the same number of permits or more and
they will be unable to be as effective. He said although
Governor Murkowski has alleged that the Division of Habitat and
Restoration has been obstructionist, in reality it has merely
been doing the job of critically reviewing development permits.
DNR's mission is incompatible with the protection of fisheries
habitat while the protection is the number one priority of the
Division of Habitat and Restoration. He supports both house and
senate resolutions disapproving EO 107. He is especially
concerned about the Copper River watershed as it lacks a
comprehensive management plan that would serve as a guiding
principle for how to proceed with project permitting in this
sensitive area. In 1991, DOTPF began construction of the Copper
River highway without even attempting to secure habitat area
state and federal permits. He urged the Legislature to exercise
its power to check and balance the executive branch. Governor
Murkowski's proposal is vindictive, politically motivated and
misguided.
MR. ROBERT ZYANICH, representing the Alaska Seine Boat Owners
Association (ASBOA), stated support for EO 107. ASBOA believes
opposition to EO 107 is designed to generate heat rather than
light. A mindset has occurred within ADF&G, which is running
contrary to a balanced approach to sound economic development in
this state. EO 107 is about streamlining the permitting process,
not the destruction of fish habitat.
MS. DEB SPENCER, a resident and fish buyer from Pelican,
implored members to look at the check and balance issue in
relation to EO 107. She said she strongly hopes the Legislature
will take this divisive issue on because all Alaskans value
personal use of the resources. She noted questions about the
relationship between the commissioner and deputy commissioner
within DNR need to be answered before a decision can be made. No
matter where members believe the Division of Habitat and
Restoration should reside, it is the Legislature's job to give
its full attention to this issue. She said sadly, the only
healthy aspect of the salmon industry is the resource itself and
she fears any tampering with the healthiest piece of the puzzle.
CHAIR OGAN explained to participants that the Legislature can do
several things: it can allow the executive order to take effect;
it can disallow it to go into effect; or any member can
introduce a bill after it goes into effect to make changes. In
addition, state law can be amended through the referendum
process.
MS. SPENCER said she understands that a review process is
available after the fact but she believes EO 107 deserves a full
review before the transfer actually occurs.
MR. DICK COOSE, a Ketchikan resident, stated support for EO 107.
He told members he has been a professional forest resource
manager for 40 years. Placing all of the resource systems
together in one place is the most efficient and effective way to
provide the best management solutions for resources and habitat.
He believes DNR will act positively and protect Alaska's
valuable habitat resources.
DR. DAVID PERSON of Ketchikan said he sees no compelling
evidence or information provided by the Governor or his staff to
justify this move. All of the allegations and innuendoes put
forth fall flat when investigated. They reveal nothing more than
a division composed of dedicated professionals who do the jobs
expected of them. Last Friday's news conference with
Commissioners Duffy and Irwin suggested to him that this is
nothing but an effort to punish division staff for doing their
jobs. Commissioner Irwin stated in the interview that many
states have consolidated their resource development and
protection staffs into one agency. He cited Oregon as an
example. That should serve not as a model but as a warning to
every commercial, sport and subsistence fisherman in the state.
There are not enough habitat biologists now to do the job
effectively. He questioned how scaling down staff and moving
them to another department will create greater efficiency and
maintain quality. He said perhaps the motivation behind EO 107
is to ultimately do away with those laws and simply rubber stamp
proposals that could impact fish and wildlife resources. On a
personal note, he told members that he and colleagues needed to
build a cabin on a remote island several years ago to use as a
base camp for a research project. They selected state land and
applied for a permit to build. DNR informed them it would take
three to four years to process the application. He then told
members that timber planners with DNR drafted a project proposal
for timber land on Prince of Wales Island. In their description
of the wildlife in that project area, they described populations
of red squirrels, porcupines, and snowshoe hare. None of those
species occur on the island. It took a habitat biologist to
point that out to them. He urged members to rescind EO 107.
DR. ERIC KNUDSEN, a professional fisheries scientist with over
20 years of experience in management and research on Pacific
salmon and trout and the current and past president of the
Western Division of the American Fisheries Society, told members
he has submitted a copy of a letter that he wrote to Governor
Murkowski to the committee for the record. He asked to explain
three scientific based claims which, when taken together, argue
for a joint resolution to reject EO 107. First, there is no
scientific doubt that healthy stream and riparian habitats are
fundamental to the amount of salmon and steelhead and other
related fish and wildlife produced in Alaskan watersheds.
Second, a combination of solid science in Alaska and elsewhere,
together with a long history of experience in the Pacific
Northwest, demonstrates that the gradual, incremental,
cumulative effects of numerous seemingly minor habitat
alterations can lead to the extensive destruction of habitat
that supports a productive salmon population. Third, scientific
research in the Pacific Northwest has led to the conclusion that
it is much more difficult to repair stream and riparian habitat
to their fully functional states than to simply protect the
natural stream functions in the first place. Damage elsewhere is
insidious and irreversible, and often the effects of habitat
damage are not known until it is too late. Alaska is not immune
to the problems that are being experienced in the Pacific
Northwest. He said he is very concerned that any relaxation on
habitat protection will result in the insidious degradation of
habitat. It is impossible to judge how effectively habitat will
be protected if the permitting functions are transferred from
ADF&G to DNR. Because the stated purpose is to speed and
streamline development, he believes that habitat protection will
be less effective. The existing system of checks and balances
has served the marine habitat of Alaska well. He urged the
Legislature to reject EO 107 and retain habitat permit functions
within ADF&G.
MR. JOEL BENNETT, representing Defenders of Wildlife, told
members that Defenders of Wildlife is a national non-profit
conservation organization that supports consumptive and non-
consumptive uses of the state's wildlife with special emphasis
on biodiversity. He stated opposition to EO 107 primarily
because his organization sees no fundamental or compelling need
to make this major change. ADF&G and DNR's roles are
fundamentally different. Defenders of Wildlife believes that to
best protect and enhance wildlife, matters of habitat permitting
should remain where they are.
MR. BENNETT said that Defenders of Wildlife believes there is a
frequent need for immediate consultation and communication
between area biologists and other experts and habitat review
personnel. This is best achieved within ADF&G. Defenders of
Wildlife sees that as the most responsible and professional way
to operate so that project development assures resource
protection. Regarding efficiency, Defenders of Wildlife feels
the executive branch can make modifications and changes within
the department. Streamlining and reorganization can happen
quickly and efficiently. The more serious problems of bias and
personnel can be made with personnel changes. He said, in
conclusion, a previous commissioner of ADF&G perhaps said it
best when he said that habitat is such a cornerstone of fish and
game management that you want management located where the most
expertise is. Defenders of Wildlife could not agree more.
MS. PAULA TERRELL, representing the Alaska Marine Conservation
Council (AMCC), said that AMCC is a statewide organization with
almost 1,000 members, comprised of fishermen, subsistence
harvesters, marine scientists, conservationists, small business
owners and others, all of whom are linked by a desire to protect
and restore our ocean environment through sustainable fishing
practices, habitat protection, and local stewardship. AMCC
opposes EO 107 because this transfer will create downside risks
for fishermen. The fact that the statutes are not being changed
gives AMCC little comfort because the fact remains that
fishermen have looked to the Division of Habitat and Restoration
for the protection of their fisheries. The status quo initiated
in Statehood has served Alaska's fishing community well. She
requested the committee get answers from the Administration to
the following questions.
1. Would the DNR commissioner continue what has been an
historical practice of the fish and game commissioner of
delegating the authority for making the initial permitting
decisions to the habitat biologists? Habitat biologists
have been signing the permits. Would these decisions,
therefore, become subject to the process for appeals to the
DNR commissioner?
2. The commissioner under DNR will have broad discretion to
interpret the Anadromous Fish Act. For example, the
commissioner would determine the waters of the state that
are important for the rearing, spawning and migration of
anadromous fish. The DNR commissioner would decide what
constitutes important habitat and what constitutes proper
protection. A similar discretion is offered under the Fish
Way Act. Given the different mandates of DNR and ADF&G,
what safeguards would prevent this discretion from being
unduly conflicted or compromised because it now resides
with the DNR commissioner?
MS. TERRELL said at a minimum, AMCC urges the committee and the
Legislature to request the following commitments from the
Administration.
1. DNR will give the same level of environmental protection to
fish and wildlife and that the habitat biologists being
transferred from ADF&G would be housed in this newly formed
habitat office.
2. Under the reorganization, the DNR commissioner would
delegate the authority for issuing permits to the habitat
biologists who have been transferred from ADF&G.
3. DNR will require the state forester to grant due deference
under the Forest Practices Act to the new office of habitat
management on issues relating to the harvest of trees from
within the 66 foot buffer zone on private land. The
inclusion in the Forest Practices Act of this due deference
to ADF&G was the key to the fishing industry's support of
the Forest Practices Act.
4. A commitment from DNR to continue the same level of
permitted monitoring compliance and enforcement as
previously existed under ADF&G.
She restated AMCC's opposition to the transfer of habitat
permitting functions to DNR. AMCC asks the Governor and
Legislature to ensure that Alaska's world-renowned renewable
fishing industry and the habitat upon which it depends not be
compromised.
MS. JAN DAWE, representing the Alaska Forest Council (AFC), told
members that the AFC's mission is to help communities make
informed decisions about forests and other resources in Interior
Alaska. The AFC's role in policy discussions is not to take
positions, but to ask questions and raise concerns. She
presented the following questions regarding EO 107.
1. Were ways to improve the permitting process and provide
greater regulatory transparency within ADF&G considered
before recommending the move of habitat functions and
biologists to DNR?
2. If the executive order becomes law, will there be a way to
ensure the possibility of cabinet level, commissioner-to-
commissioner resolution in the exceptional instance of
[indisc.] over habitat protection.
3. Given DNR's backlog of permits still pending action, will
the government be able to provide sufficient long term
financial resources to the agency to handle the additional
permitting in the new office of habitat management and
permitting?
MS. DAWE said the Board of Forestry has recently developed a
stream classification system for Region 3, which is found in SB
88. She asked if it is possible for certain permitting functions
within Title 16 to now be treated on a [indisc.] basis, parallel
to the way in which the Department of Environmental Conservation
has streamlined its permitting process with regard to small log
storage areas at tidewater. The AFC has due process concerns
with EO 107. One is a timing issue that the order was issued
three weeks into the legislative session making it more
difficult for the Legislature to gather constituent input and
make an informed decision. AFC's second concern is the
difficulty for the public to get substantive information on the
executive order, the first information being released on March 7
during the joint press conference of the commissioners.
TAPE 03-11, SIDE B
MS. DAWE said for those reasons, AFC refrains from taking
positions on individual issues. AFC wants the state to make
improvements to the regulatory process to provide greater
regulatory certainty for permit applicants. AFC has just seen
the special concurrent resolutions in the House and Senate. AFC
is concerned about the ramifications of EO 107 and the process
that has led AFC here today. AFC wonders if it might not be
better to adopt the special concurrent resolutions with the
caveat that a working group be formed immediately to look at
improvements to Title 16 permitting and to make recommendations
to the Legislature next session or for a subsequent or
substitute executive order to be issued this summer. She offered
AFC's services to such a working group.
MR. DAVE HANNA, a Juneau resident, told members his family has
been involved in mining, timber development, fishing and
construction since the 1870s. He said in the last 25 years he
has spent a good deal of time working with ADF&G and the other
departments on permitting projects in and around Southeast
Alaska. During that time, he has never had a problem permitting
a resource development project with ADF&G. That department has
acted very professionally. He said some of his projects have had
the potential to have large impacts on major fisheries. He
believes having the habitat biologists in the same offices with
the sport and commercial fish divisions has enabled them to work
expeditiously. The habitat biologists finished their review of
his projects ahead of the other agencies.
MR. HANNA noted he is not saying he has never had a problem with
ADF&G. He said he also chairs the board of a local watershed
partnership. The board frequently gets involved in local
restoration projects. Last year the Board was involved in a
project that was supported by just about everyone but it
involved some new technology that some of the habitat biologists
were not familiar with. Their policy was to not approve anything
they were not familiar with. This raises the issue that many of
the problems, if not all, that have been raised with ADF&G are
due to policy and the fact that the habitat statutes are so
broad. Policies are set by administrations and personnel and
they shift over the years. He believes the fact that decisions
are made based on policy rather than statute is what has led to
the inconsistency in the permitting climate in Alaska. He
suggested instead of transferring the Division of Habitat and
Restoration to DNR and leaving it subject to the whims of policy
changes, direct the Division of Habitat and Restoration to work
with the Legislature to put permitting rules in statute. He said
that although Commissioner Irwin may be able to wear both hats,
without a check and balance system in place, there is no
guarantee that Alaska's resources will be protected down the
line.
MR. JOHN STURGEON, representing Koncor Forest Products, told
members he was a Board of Forestry member for 18 years and is a
member of the Resource Development Council and Alaska Forest
Association. He stated support for EO 107. He believes this
transfer can be done while successfully protecting the
environment and will improve efficiency in government. Regarding
concerns addressed about buffer zones, he clarified that DNR
already has primary authority for buffer zones. ADF&G has had
due deference since about 1991. He believes DNR has done a good
job. Regarding the statement that DNR is strictly a resource
development entity, the timber industry sees DNR as an
enforcement entity under the Forest Practices Act. He believes
EO 107 will provide for "one-stop shopping." Under the current
system, a developer must comply with several agencies'
requirements. With a $1 billion dollar budget shortfall, state
government needs to function more efficiently.
MR. JAN KONIGSBERG, representing Trout Unlimited, told members
he has submitted written comments to the committee about how EO
107 is based on the assumption that this transfer will have a
significant impact on economic development in the state.
Regarding Commissioner Irwin's previous statement that the State
of Oregon's system was used as a role model for EO 107, he
pointed out that the last time he checked, the State of Oregon
is facing a budget shortfall of $2 billion. He questioned the
connection between its permitting system and economy as Oregon
no longer has a natural resource based economy. That must have
something to do with a lack of productive habitat. Oregon has
over 13,000 culverts on state highways and forest roads that
block fish. He questioned why Alaska would use Oregon as an
example to follow. He believes EO 107 is a misguided approach
and he wonders whether anyone has done their homework to produce
a sensible plan for economic development. He noted the
Administration seems to believe that consolidating permit
oversight in DNR will remedy what is perceived to be the undue
influence of environmentalists and professional biologists and
that somehow magically economic development will start taking
care of itself. If subtracting citizen participation, science
and public policy analysis from the equation is the solution,
Alaska can look forward to more projects like the Ketchikan
veneer plant or the Great Alaska Seafood Plant in Anchorage - no
doubt a money maker for a few select individuals but a net loss
to the state. He repeated that he cannot figure out how EO 107
has anything to do with economic development.
MR. KONIGSBERG said the Southeast timber industry depended
mainly on federal dollars and failed, not because of
environmentalists, but because the world demand for dissolving
pulp collapsed. The salmon industry, which depended mainly on
Japanese demand, has shriveled, not because of habitat
biologists but because of the huge supply of farmed salmon. If
the salmon industry is ever to gain its market share, it will
have to have high-quality salmon habitat. He stated when it
comes time to develop a meaningful plan to grow the economy, he
does not believe it will start with permitting. Alaska needs to
start with its comparative advantages, one being its natural
beauty, habitat, and productivity. He urged committee members to
reject EO 107. He pointed out the Governor's transition advisory
group never recommended moving the Division of Habitat and
Restoration to DNR; it recommended appointing the commissioner
of ADF&G to investigate ways to make improvements in the
Division of Habitat and Restoration.
MR. HAROLD HEINZE told members that numerous experiences have
brought him to testify before the committee. He recalls the
predictions of the impacts of development of the North Slope,
particularly the demise of the caribou herd and waterfowl. He
was the DNR commissioner during the Hickel Administration and
held hearings on the Forest Practices Act. From that experience,
he has a strong sense of interaction with DNR and ADF&G on that
one issue. He is very supportive of EO 107 for several reasons.
First, he believes the teamwork approach will lead to better
decisions. DNR operates under the one constitutional mandate the
state has and that is the development of the state's resources
to the maximum benefit of all Alaskans. He believes that is the
overriding mandate and, working as a team, habitat biologists
can contribute to it. He stated the commissioner of ADF&G has
had time to fix the problems of the Division of Habitat and
Restoration over the last 12 years but he did not do so,
therefore he presumes those problems cannot be fixed. He said
one of the biggest disappointments he has seen during the last
12 years is that the Division of Habitat and Restoration had a
charge to develop permit standards so that applicants would know
whether they would get a permit or not. All of the other
agencies of state government have created standards. He said
under the Forest Practices Act, the deference to habitat is very
clear and, as a commissioner, he experienced a habitat veto.
MR. HEINZE said he had a few more observations. One is that a
previous testifier used fish traps as an example of a prior
disaster. He said that was a fish management issue rather than a
habitat management issue. Second, he has found it very
interesting that when it comes to the management of these
important fish and game resources, management decisions are not
made by the biologists or the scientists but by people with a
broader perspective. It has struck him as odd that is considered
to be the right approach for fish and game, but that the
Division of Habitat and Restoration can veto a resource
development issue related to other industries.
SENATOR ELTON asked Mr. Heinze if due deference must be given to
ADF&G under the Forest Practices Act now and if the two
departments disagree, whether a process is in place to resolve
the disagreement. He then asked if there will be no due
deference under EO 107 and whether Mr. Heinze sees the
elimination of the conflict resolution process as helpful.
MR. HEINZE said he would describe the current process as one
without equal footing. He believes the Division of Habitat and
Restoration has veto power under the current system. In trying
to resolve matters commissioner-to-commissioner, he never won.
More importantly, he sees this change as creating equal footing
for DNR.
6:20 p.m.
MR. MIKE ROBBINS, representing ASEA Local 52, stated opposition
to EO 107 and urged members to rescind the order. He made the
following points about the legality of EO 107. First, there is a
separation of powers doctrine in art. II, sec. 1 of the Alaska
Constitution, which the Legislature should be concerned about.
That article gives the legislature the power to enact statutes.
On the other hand, art. III, sec. 1 says the Governor implements
those laws. EO 107 attempts to amend laws and repeal a law. He
pointed out that 43 years ago the Departments of Fish and Game
and Natural Resources were established with different roles
designed to balance the public interest. In the 1970s, the
legislature passed statutes concerning public employees and
their retirement system. In 1983, the legislature passed a
statute giving ADF&G employees a 20-year retirement package. The
executive branch sought to change the retirement package by
transferring ADF&G employees for whom the 20-year retirement was
established to DNR. That is a violation of the 1983 statute. He
also noted the merit principle is a matter of constitutional
law, art. XII, sec. 6. According to a 1992 Alaska Supreme Court
decision, that is not supposed to be impacted by political
consideration. It also violates the collective bargaining
agreement, which provides for progressive discipline, meaning if
employees are not performing their job in a timely manner, the
employer has a right to discipline. That process requires notice
to the employee, a right to representation by the union and
opportunities to be heard. The state also recognizes that
normally progressive discipline follows a pattern of training,
letters of instruction, and verbal and written reprimands, which
has not occurred.
REPRESENTATIVE SEATON told Mr. Robbins and other participants
that the House State Affairs Committee will hold hearings on
Tuesday and Wednesday night, which is an appropriate venue for
state employment matters. The Resources Committees are concerned
about the resource impacts.
MR. ROBBINS concluded by saying that art. XII, which is the
layoff article of the collective bargaining agreement, concerns
reorganization. The union feels it is important that the
committee understands and addresses these issues. He urged
members to disapprove EO 107.
MR. BILL HAUSER told members that he is in support of Alaska's
fisheries resources. Unique habitats are required to support
their long-term sustainability. He is a retired ADF&G employee
and a current temporary employee of the habitat restoration
division. His work status is unaffected by EO 107. He is
speaking to the committee as a fisheries scientist. He has a
Ph.D. in zoology and fisheries management and over 30 years of
experience. Mr. Hauser said fish is the most important natural
resource in the state for many users. If we care about and want
to preserve this resource for future generations, the resource
needs good quality habitat for spawning, rearing, over
wintering, and open pathways for access to migration amongst
these habitats. Any of these are jeopardized by any resource
development project. In addition, when anadromous fish
populations are reduced or destroyed, other resident populations
are diminished. Regarding the issue of checks and balances, he
does not understand how the habitat biologists will work as well
in DNR because the mission of DNR is to develop resources. He
can only assume that when decisions are made, DNR's main mission
will be the driving force. With fewer staff available, the
quality of the product will be lower and fish-friendliness will
diminish. He said in a short time, the people transferred to DNR
will find other jobs and newcomers will have less expertise. He
concluded by stating opposition to EO 107.
MR. MACK MEINERS, representing the Kodiak Seiners Association,
stated support for EO 107. He said the Kodiak Seiners
Association believes the Governor and DNR will do a fine job and
that EO 107 will create a streamlined, one-stop shopping permit
process.
CHAIR OGAN asked Mr. Meiners to let him know if he believes DNR
does not do a good job.
MR. BEN KIRKPATRICK, an ADF&G habitat biologist since 1995, said
he is speaking on his own behalf in opposition to EO 107. He
said his main reason for speaking out is that he feels as a
habitat biologist, the Governor listed many examples of poor
jobs done by division employees as the reason for the transfer
to DNR. He said if one looks at the facts, the biologists were
doing their jobs as directed by the Administration at the time.
He said as Mr. Heinze mentioned, he does not believe the
Division of Habitat and Restoration has veto power. He said one
of the big issues is that in Southeast Alaska, one-third of the
Division of Habitat and Restoration's permitting staff will be
reduced. That alone will make it much more difficult for
biologists to work on the many small projects. He believes the
big projects will be looked at in detail but much of his time as
a habitat biologist has been spent working with small developers
to provide expertise. That will become impossible to do with a
smaller staff and will have a very significant impact on
Southeast's resources. He said the Administration has the
responsibility of making accurate statements when speaking about
employees and saying there will be no changes in habitat
protection. He said he has found the allegations surrounding EO
107 have been lacking.
MS. MAGGIE WIGEN, a resident of Tenakee Springs, said much of
the livelihood of her community is dependent upon subsisting on
deer and fish resources. She is not convinced that the transfer
of the permitting authority from ADF&G to DNR is in the best
interest of habitat protection. While she has not spoken to
everyone in her community, those she has spoken to have
expressed deep concern about the transfer. She urged members to
oppose EO 107.
MR. JOSH PIERCE, testifying from Anchorage, said the repeated
phrase, "streamlining" as justification for EO 107 is a
misnomer. ADF&G has been extremely efficient in its permit
process while DNR has an extremely large backlog in its permit
process. Regarding statements made about improved services
resulting from teamwork, he believes that is also misleading
because all of the management authority and research will be
done at ADF&G, while those issuing the permits will be in the
Division of Habitat and Restoration. ADF&G will lose a valuable
tool in its ability to manage. He believes that will have a
detrimental effect on fisheries resources. He said once habitat
problems are discovered, they will be extremely expensive and
difficult to fix. He asked members to reject EO 107.
MR. DOUG HILL, an ADF&G employee and commercial fisherman,
directed his testimony to the Frazer Report. Commissioner Duffy
said Alaska ranked 50th in that report; that was an investment
tracking index rather than a ranking. That index includes
taxation, government policies, Native issues and environmental
regulations, among other things. The index ranges from 1 to 100,
1 being the worst. Alaska rose from 46th in 1997 to 80th [in
2002]. He urged members to look at that report, as well as a
report by Mining Watch Canada, which was formed to ensure that
mineral development practices are consistent with sustainable
communities. He stated opposition to EO 107 as it will clear the
way for development at the cost of fish and game habitat. He
said this is not a democratic or republican issue: it is an
issue about people and fish. He believes it is not a fiscally
conservative policy as restoration is much more costly than
preservation.
MR. ERIC LEE, a commercial fisherman from Petersburg, stated
opposition to EO 107. He said the fishing industry is extremely
important to Alaska's economy. It generates more jobs than any
other industry in Alaska, including the oil industry. The
tourism industry also plays a big role in Alaska's economy. Both
the fishing and tourism industries are totally dependent on the
condition of fish and wildlife habitat. He believes EO 107 will
result in a situation where permitting decisions are made in DNR
by overworked employees in an atmosphere of expediency and
mistakes will be made. He does not believe important
considerations will be adequately addressed by biologists with
site-specific knowledge. He noted the conditions in Southeast
Alaska are very different from other areas. Local biologists
know what local considerations need to be addressed when making
decisions. He added that he heard at the beginning of the
meeting that this change is about expediency and streamlining.
He said the top priorities should be proper decision making by
qualified biologists with local knowledge. He said the existing
system works quite well.
TAPE 03-12, SIDE A
MR. NEIL MACKINNON, President of Hyak Mining Company, said he
has had numerous opportunities to interact both with DNR, ADF&G
and the Division of Governmental Coordination. He supports EO
107 for two reasons. First, the Legislature has to figure out
how to deal with the state's budget problems, so if it can't do
this, it will have to figure out other ways to get the money to
"keep funding that animal." His second reason for supporting EO
107 is that in his dealings with ADF&G, he believes the Division
of Habitat and Restoration would benefit from a broader
perspective. In the last few years, he has found the division's
attitude to be that anything without fins doesn't count. He
thinks DNR might also consider the human habitat. His earliest
experience with the Division of Habitat and Restoration occurred
in 1994 when Hyak was logging its land in Berners Bay. Hyak
wanted to cut some trees in the buffer zone of a salmon stream.
Both a Division of Habitat and Restoration biologist and a DNR
biologist visited the site. The Division of Habitat and
Restoration biologist was much more forgiving while the DNR
biologist was not going to allow any, maybe because the habitat
biologist knew what counted. He said he doesn't see where
turning the permitting function over to DNR will open the
floodgates to do anything.
MR. CHIP DENNERLEIN gave his numerous credentials working in the
area of Alaska's natural resources and said he would be happy to
respond to any questions and provide documentation to
substantiate his following comments. EO 107 is based on fiction.
The commissioner will no longer have any clear authority over
salmon and resident fish habitat. Habitat permit issuers will be
separated by agency and physically from fish and wildlife
biologist colleagues and from ongoing science and research.
There will be fewer permitting staff to get in the field and
solve problems. The federal agency permit issuers will now
consult by law, under the Fish and Wildlife Coordination Act,
with ADF&G biologists, not with DNR staff. Every project
mentioned in the Governor's state of the state speech was
heavily federally funded and subject to federal permits. The
state uses examples of state and single resource agency models
elsewhere with numerous apple and orange differences from agency
staffing to retaining deference requirements for fish and
wildlife. The projects used as examples are blatantly
misleading. Falls Creek is one example. That is a proposed hydro
project inside the boundaries of a national park in a
congressionally designated wilderness. He doubts habitat
concerns about fish passages are holding the project up since it
is subject to an environmental impact statement. It was subject
to a bill in then Senator Murkowski's Senate Energy and Natural
Resources Committee.
MR. DENNERLEIN said the Governor's transition team never once
met with ADF&G division directors. Neither the Division of
Habitat and Restoration director nor deputy director was ever
contacted by any member of the transition team, including
habitat committee members. However, they still did not recommend
the transfer. He believes EO 107 is a radical move that is
reckless and based on falsehoods.
MR. STEVE ALBERT, a 21-year ADF&G employee, said he is speaking
on his own behalf. He believes EO 107 is poor public policy. He
respects the Alaska Constitution and the ability of the Governor
to reorganize the executive branch. However, the implications of
this reorganization will have far reaching effects well beyond
the Habitat and Restoration Division. He asked members to focus
their attention on Section 45 of EO 107. It includes language
that states that ADF&G employees with peace officer status
delegated before June 23, 1983 will continue to accrue service
credit as peace officers under AS 39.35 after the transfer as
long as the employees remain in a position described in this
subsection in DNR. Therefore, if he or other colleagues choose
to apply for a position in DNR that could benefit the State of
Alaska if selected as the most qualified candidate, he would be
forced to endure financial repercussions in terms of his
retirement status. The Governor has no right to impose financial
consequences and force him to stay in one position for the rest
of his working life. He said he cannot apply for another
position in DNR, nor can he return to ADF&G in his professional
capacity without suffering financial consequences. The executive
order provision of the Constitution was included to allow the
governor to reorganize, but not to punish employees. He was
simply doing the job he was asked and expected to do by the
public. He noted that Commissioner Irwin has received praise
about how the permitting process for his previous company was
handled in the Fairbanks office where the Division of Habitat
and Restoration was a separate entity. He stated that he got his
permit in a timely manner and the environment was protected
and/or enhanced. Mr. Albert emphasized that the Division of
Habitat and Restoration was a separate entity during that
process and the system worked. He said the current system works
for the public by protecting habitat and for the more than 99.5
percent of all development projects proposed in Alaska each
year. He said he is not against development but he appealed to
members to recognize that development at any cost over other
societal values without recognizing the concept of
sustainability and multiple use is wrong and against the vision
of the writers of the Alaska Constitution.
7:00 p.m.
SENATOR ELTON said he wanted to take this opportunity to thank
committee members and participants for staying to hear the
testimony.
MS. KATHERINE PAUL, an ADF&G habitat biologist, told members she
was testifying on her own behalf. She said the information the
committee is working from is not good. She noted that the ADF&G
logo contains animals; DNR's logo does not, showing the very
different focus of the two agencies. She said that habitat
protection is part of the overall mission of ADF&G. The word
"protection" remains in the statutory responsibilities for this
agency despite EO 107. She questioned how the habitat protection
mandate can be met through having habitat permitting and project
review in DNR. Ms. Paul said she is one of the project reviewers
who has been targeted by repeated accusations in the press, by
the Governor, and others for doing her job under the direction
of her supervisors and as part of a larger team of sport and
commercial fish and wildlife division staff. It has been quite
shocking to her to hear attacks made against her by the state's
leader in the media for doing her job correctly. She and others
wrote a memo to the director and presumably to the commissioner
and Governor to correct the Governor's information but she has
received no acknowledgement that that information was incorrect.
Instead, she has heard more accusations, inaccurate and some
defamatory. She said there is a continuing resting of the case
for making this transfer based on erroneous information. She
said it is unbelievable to see an agency be "scapegoated,"
especially in an era when our country is working against
repressive regimes, which begin by abusing and controlling the
flow of information. She said it is important for members to
view this as an environmental injustice and an issue of respect
for information. She said there are several ways to show how
these changes will lead to a reduction in the substance of
habitat protection, not just a change in process. She noted
that not only has the committee received incorrect information,
it has provided incorrect information about this process. That
needs to be looked at in concert with the people who work on the
permitting process. This transition was proposed without any
contact with the people who do the work and it will not serve
the public to base this decision on incorrect information.
7:10 p.m.
CHAIR OGAN announced a brief at-ease and, upon reconvening,
asked participants to limit their testimony to 1 minute. He
reminded them that two more hearings have been scheduled on this
issue in the House.
MS. ELLEN SIMPSON, representing herself, told members she
currently works for ADF&G. She came to Alaska 20 years ago from
Washington State, where she worked as a fish biologist. She
wanted to work with wild salmon rather than salmon that had to
be raised in a hatchery because the habitat they depended on was
gone. She believes the same thing will happen if EO 107 goes
into effect. Fish habitat is lost one project at a time.
Without productive salmon habitat, salmon returns can never be
sustainable, no matter how good the state's management policies
are. She said she is especially concerned that the
Administration has not adequately justified a major change to
the way business is done in the state. The Governor says his
goal is to streamline permitting and make it more efficient
along the lines of the large mine projects. He believes moving
the Division of Habitat and Restoration to DNR will accomplish
that. Commissioner Irwin explained the large mine project
concept in his overview to the House Resources Committee on
February 20 and in a press conference last week. He indicated
that the Fort Knox staff and habitat biologists worked to modify
that project to benefit both the company and fish habitat. He
praised the process, which sounds like an endorsement for the
existing process, not a justification to change it. She
indicated of the 2,000 permits ADF&G issues each year, only a
few are for large projects. Over 80 percent require
consultations within ADF&G. These permits are very important to
landowners and small developers who depend on ADF&G's expertise
to help construct projects that are fish-friendly. Most of these
projects are unique. She pointed out that ADF&G and DNR had to
draft a memorandum of understanding so that the habitat
biologists located in DNR will know how to communicate and work
with ADF&G biologists. She does not see that as streamlining.
She urged members to disapprove EO 107.
MS. CELIA ROSEN, an ADF&G librarian for 15 years, said she has
worked with the same crew of habitat biologists that will be
transferred and noted those biologists are very professional and
take sound science very seriously. Those employees work an
incredible number of hours and risk their lives flying around
the state to do field work. She believes they probably work more
unpaid hours than anyone else in state government. The most
significant loss she sees resulting from EO 107 is the loss of
legal continuity. She expressed concern that the collective
wisdom of generations of lawmakers will be thrown away on a
political whim under the guise of reorganization. She said
Alaska differs from other states in that it has been proactive
in preventing habitat loss. She asked members to oppose EO 107.
MR. JERRY MCCUNE, representing United Fishermen of Alaska (UFA),
stated support for EO 107. He said that fishery habitat
protection is of the utmost importance to UFA and clearly the
fishing industry's sustainability depends on it. UFA has spent
the last 1 1/2 years trying to revitalize and a key element of
that work has been the examination of ways to reduce costs.
Permit streamlining is certainly an element of that. UFA is
working to streamline direct marketing permits so that fishermen
do not have to deal with four different agencies to do business.
UFA sees EO 107 as a similar move; one intended to better serve
natural resource users to reduce costs and move toward
efficiency. As long as state and regulatory protections are made
under DNR permitting as they currently exist under ADF&G, UFA
does not believe EO 107 will cause any harm to fisheries. UFA
will monitor the new process and voice its concerns if and when
they occur.
MR. RODGER PAINTER asked to share a comment made to him by the
director of the commercial fisheries division, that being that
if commercial fishermen had to go through the same process of
review with the Division of Habitat and Restoration, the
director would be out of a job because there would be no
commercial fisheries. He said he is representing the Alaska
Shellfish Growers' Association (ASGA). ASGA has had long
standing disputes with the Division of Habitat and Restoration.
He said the statutes are broadly written, which leaves a lot of
room for personal interpretation. ASGA found there to be no
review standards. He requested the committee hold an oversight
hearing next year to look at how this process has been carried
out. He said he hopes that DNR and the Governor live up to their
promises, but little solid information is available.
CHAIR OGAN committed to doing that and said he would also be out
in the field this year looking at the process.
MR. CEVIN GILLELAND, an area habitat biologist for the Mat-Su
Borough, Prince William Sound, and the Copper River Basin, said
he was testifying on his own behalf. He told members he has been
involved in three of the projects that have been used to
demonstrate why ADF&G's responsibility to protect fish and
wildlife should be moved to DNR. Moving this responsibility to
DNR will eliminate ADF&G's ability to protect fish and game. The
information about the three projects he is working on that was
given to the press has been inaccurate. Those projects are the
Tok Highway Cutoff Upgrade, the Glenn Park Interchange, and the
Power Creek Hydro-electric project. He said it has been alleged
that the habitat division first provided comments saying it had
no objection to the Tok Highway Cutoff Upgrade. That is true,
however DOTPF changed the project to include 24 acres of
wetlands fill adjacent to the Copper River and the diversion of
a clear channel Copper River tributary. The Division of Habitat
and Restoration received the information that those two changes
were part of the project. The Division did change its comments
because it was the right thing to do. The Division requested
plans for the stream diversion and to evaluate the impact of the
wetlands fill. The second project was the Glenn Parks Highway.
The Governor said the consistency finding was issued in March,
2001 and it took 16 months to get a fish habitat permit. That is
incorrect. The first meetings took place in June of 2001. The
consistency finding required the contractor provide plans and
specifications to ADF&G 30 days before construction began. ADF&G
could not issue permits when the consistency finding was done
because the plans were not complete. ADF&G worked with the
contractor to eliminate one of the bridges over a creek and to
get a concrete wall reduced. ADF&G helped the contractor save
over $1 million on that project. He urged members to overturn EO
107.
MR. LARRY HOULE stated support for EO 107 and said that nothing
exists to prove that streamlining a government process will
degrade or compromise the Alaskan environment.
MS. JEANNE WALTER told members she has worked at the Department
of Interior, the State of Alaska, the University and for
industry. She said the original intent of EO 107 has been stated
to streamline the permitting process. This will not be possible
for several reasons. The ADF&G Division of Habitat and
Restoration staff processed 2,000 permits per year averaging a
14-day turnaround time. She noted that information can be
verified at the ADF&G tracking system. Of those 2,000 permits,
only .5 percent was denied. A second reason is that 22 habitat
staff will be laid off and 12 currently vacant positions will be
eliminated. Of the 36 positions that will be transferred to DNR,
those positions will be spread out among three different
divisions and the EVOS office. Dismantling the Division of
Habitat and Restoration will decrease the ability of biologists
to receive consultative information from adjacent fish and game
divisions and field biologists. Decreasing staff by 30 percent
will decrease monitoring, restoration, and mitigation and will
slow the permitting process down or create a process which will
provide rubber-stamping of permits. These reviews and habitat
biologists' expertise save permittees money in costly legal
fines, both federal and state. She asked members to disapprove
EO 107.
MS. CINDY ANDERSON told members she is an ADF&G employee
eligible for retirement after 20 years and is slated to be moved
to DNR. She will be economically penalized because after 20
years of managing fisheries for the Division of Commercial
Fisheries, she moved over to the Habitat and Restoration
Division to try to end her career in a more positive manner,
helping manage resource development in the state. She supports
development in a responsible manner. She noted dedicated staff
in the Division of Habitat and Restoration have worked many
uncompensated hours to protect fish habitat. If a considerable
number of habitat biologists are laid off and others move to
DNR, she questioned how the resources and resource users are
being protected.
MR. DANIEL SHARP, an ADF&G biologist since 1982, said since
September of 2002 he has been employed as a habitat biologist.
Under the Governor's planned reorganization, his current
position and duties are slated to remain with ADF&G. The
organizational structure employed by ADF&G has long depended
upon the concept of relying upon area biologists. These are
individuals with experience that allow them to speak
knowledgeably about the fish or wildlife resources for which
they hold responsibility. As a 12-year resident of Cordova, he
has had the unique pleasure of serving as the Commercial
Fisheries area management biologist from 1995 to 1998 and as the
Copper River area management biologist from 1999 to 2001. He
said he has heard a number of representatives from commercial
fishing organizations voice their support for EO 107. He asked
committee members to consider that if EO 107 is such a fine
idea, would they have supported it had former Governor Knowles
proposed it during the last six months of his administration.
He said the Power Creek hydro-electric project in Cordova has
been repeatedly cited as an example of the Division of Habitat
and Restoration's interference with legitimate development
projects. A less expensive, cleaner and stable source of hydro-
electric power was widely supported by industry, local residents
and himself. Habitat biologists connected with this project were
recently described as refusing to be reasonable on a project
that was set way up in the hills where there are no fish. He
asked to clarify that description and said in actuality, just a
few hundred yards downstream thousands of sockeye, silver, and
pink salmon spawn each year. Brown and black bear, trumpeter
swans and other waterfowl live in the area year round. Power
Creek drains into Eyak Lake, a source of the city's drinking
water. Eyak Lake supports a return of tens of thousands of
sockeye salmon. These are the same fish that Copper River
commercial fishermen receive their highest price per pound for
each season. Sockeye salmon returns have paid a substantial
dividend to the residents of Cordova for hundreds of years and
likely sustained generations of Native Eyak people. If any area
deserves due diligence from a habitat protection standpoint,
Power Creek certainly qualifies. He cannot attest directly as to
whether unreasonable due diligence was exercised by the habitat
biologists at the time of this project. However he can attest
that as a local area biologist he received numerous phone calls
and in-person complaints about unreported small and large fuel
spills, unchecked erosion of spawning streams and repeated
illegal stream crossings with heavy equipment to the work site.
It quickly became evident by the contractor's behavior that any
restrictions designed to protect the spawning habitat and
wildlife would only be followed if the habitat biologist
enforced them. He finds it most unfortunate that this particular
project has been heralded by the Administration as a prime
example of showing unreasonable interference by habitat
biologists working for ADF&G. His experience, however ancillary,
was that this project needed almost constant department
oversight if any cooperation was to be received from the
contractor.
He feels badly the Governor's Office has been so ill-served by
those seeming to pass on disinformation about the importance of
Power Creek to the residents of Cordova, the conduct of the
contractor, and about the work the Division of Habitat and
Restoration has performed in attempting to provide the
protection this area deserves. He urged the committee's thorough
exploration of the proposed transfer and to co-sponsor the joint
resolution to rescind EO 107.
CHAIR OGAN thanked all participants and invited them to provide
written comments for inclusion in the record. He noted the
committee has heard from 62 people tonight, plus the
commissioners. He then announced the committee would take no
action on EO 107 tonight and adjourned the meeting at 7:37 p.m.
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