Legislature(2021 - 2022)BUTROVICH 205
04/08/2022 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB227 | |
| SB228 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 227 | TELECONFERENCED | |
| *+ | SB 228 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 177 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
April 8, 2022
3:34 p.m.
MEMBERS PRESENT
Senator Peter Micciche, Vice Chair
Senator Click Bishop
Senator Gary Stevens
Senator Natasha von Imhof
Senator Jesse Kiehl
Senator Scott Kawasaki
MEMBERS ABSENT
Senator Joshua Revak, Chair
COMMITTEE CALENDAR
SENATE BILL NO. 227
"An Act relating to state ownership of submerged land within and
adjacent to federal areas; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 228
"An Act requiring the designation of outstanding national
resource water to occur only by statute; relating to the
management of outstanding national resource water by the
Department of Environmental Conservation; and providing for an
effective date."
- HEARD & HELD
SENATE BILL NO. 177
"An Act relating to microreactors."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: SB 227
SHORT TITLE: STATE OWNERSHIP OF SUBMERGED LAND
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/11/22 (S) READ THE FIRST TIME - REFERRALS
03/11/22 (S) RES
04/08/22 (S) RES AT 3:30 PM BUTROVICH 205
BILL: SB 228
SHORT TITLE: OUTSTANDING NAT'L RESOURCE WATER
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/11/22 (S) READ THE FIRST TIME - REFERRALS
03/11/22 (S) RES
04/06/22 (S) RES AT 3:30 PM BUTROVICH 205
04/06/22 (S) Scheduled but Not Heard
04/08/22 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
BRENT GOODRUM, Deputy Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented a PowerPoint to introduce SB 227.
JIM WALKER, Section Manager
Public Access Assertion and Defense
Division of Mining, Land, and Water
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented a PowerPoint to introduce SB 227.
JESSIE ALLOWAY, Solicitor General;
Statewide Section Supervisor
Opinions, Appeals, and Ethics Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony on SB 227.
CHRISTINE HUTCHISON, Representing Self
Kenai Peninsula, Alaska
POSITION STATEMENT: Testified in support of SB 227.
RANDY BATES, Director
Division of Water
Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: Introduced SB 228.
LINDSEY BLOOM, Campaign Strategist
SalmonState
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SB 228 to avoid
politicizing the process.
AARON BRAKEL, Inside Passage Waters Program Manager
Southeast Alaska Conservation Council
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SB 228 because he
believes in a scientific community-based process to make Tier 3
determinations.
ACTION NARRATIVE
3:34:50 PM
VICE CHAIR PETER MICCICHE called the Senate Resources Standing
Committee meeting to order at 3:34 p.m. Present at the call to
order were Senators Kiehl, Kawasaki, Stevens, and Vice Chair
Micciche. Senator von Imhof arrived shortly thereafter. Senator
Bishop arrived as the meeting was in progress.
SB 227-STATE OWNERSHIP OF SUBMERGED LAND
3:35:38 PM
VICE CHAIR MICCICHE announced the consideration of SENATE BILL
NO. 227 "An Act relating to state ownership of submerged land
within and adjacent to federal areas; and providing for an
effective date."
VICE CHAIR MICCICHE invited Mr. Goodrum and Mr. Walker to
present the bill.
3:36:37 PM
BRENT GOODRUM, Deputy Commissioner, Department of Natural
Resources, Anchorage, Alaska, stated that SB 227 principally
relates to identifying and codifying state submerged lands
within federal areas. The committee's actions on this bill could
be the most impactful regarding how Alaskans understand and can
fully realize their hard-earned right achieved at the time of
statehood. When Alaska became a state in 1959, it became
entitled to all incidences of ownership in its navigable rivers
and lakes, yet it is effectively deprived of clear title under
the equal footing doctrine. Nonetheless, the state doggedly
presses forward to assert that these rights are worth fighting
for 63 years later.
MR. GOODRUM stated that the current status quo of uncertainty
and ambiguity of ownership, management, and control of the
state's navigable water bodies is not in Alaska's best interest.
The state has patiently waited for the federal authorities to
make their declarations known regarding the navigability of
Alaska's water bodies. He offered his view that the time has
come for the state to decisively take action to identify and
codify the navigable rivers and lakes for future generations of
Alaskans and its visitors, so they confidently know who has
ownership, management, and control. The state ought to be able
to fully identify and manage its property.
3:39:50 PM
JIM WALKER, Section Manager, Public Access Assertion and
Defense, Division of Mining, Land, and Water, Department of
Natural Resources (DNR), Anchorage, Alaska, began a PowerPoint
on SB 227. He stated that the issue is straightforward but has
become needlessly complicated.
MR. WALKER paraphrased the bullet points on slide 2, The
Navigable Waters Issue.
[Original punctuation provided.]
• Alaska holds an estimated 800,000 miles of navigable
rivers.
• Alaska holds an estimated 30 million acres of
navigable lakes.
• Alaska owns the submerged lands beneath every
navigable in-fact river and lake, and beneath tidally
influenced waters in the state--unless a valid pre-
statehood withdrawal EXPLICITLY defeats state title.
• In Federal Conservation System Unit areas created in
Alaska post-statehood, the submerged lands beneath
navigable-in-fact and tidally influenced waters are
state-owned lands.
3:40:49 PM
MR. WALKER reiterated that the equal footing doctrine, also
known as equality of the states, is the principle in US
constitutional law that all states admitted to the Union since
1789 enter on equal footing with the original 13 colonies
already in the Union.
3:41:50 PM
MR. WALKER reviewed slide 3, Federal Areas Where SOA Owns
Submerged Lands, which shows a sampling of some post-statehood
withdrawals where the state of Alaska owns the submerged lands.
National Park Service: Noatak National Preserve (NPr),
Kobuk Valley National Park (NP), Bering Land Bridge
NPr, Denali National Park and Preserve (NPP) (ANILCA
additions), Wrangell-St. Elias NPP, Glacier Bay NPP,
Katmai NPP, Kenai Fjords NP, Gates of the Arctic NPP,
Lake Clark NPP, Yukon-Charley Rivers NPr, etc.
U.S. Fish and Wildlife Service: Becharof National
Wildlife Refuge (NWR), Innoko NWR, Izembek NWR, Kanuti
NWR, Kenai NWR, Kodiak NWR, Koyukuk NWR, Nowitna NWR,
Selawik NWR, Tetlin NWR, Togiak NWR, Yukon Delta NWR,
Yukon Flats NWR, etc.
U.S. Forest Service: Tongass National Forest, Chugach
National Forest
Bureau of Land Management: Beaver Creek Wild and
Scenic River (WSR), Birch Creek WSR, Fortymile River
WSR, Gulkana River WSR, Unalakleet River WSR, Delta
River WSR, etc.
3:42:05 PM
MR. WALKER paraphrased the bullet points on slide 4, Status of
Efforts to Clear Title 1959 to Present.
The federal government acknowledges Alaska's clear
title to its submerged lands beneath navigable-in-fact
and tidally influenced rivers and lakes in only:
• Only 9 percent of 800,000 river miles of submerged
lands under state-owned rivers.
• Only 16 percent of 30,000,000 acres of submerged
lands under state-owned lakes.
MR. WALKER related that clearing the title will take hundreds of
years and tens of millions of dollars at this rate.
3:43:13 PM
MR. WALKER reviewed slide 5, Sturgeon v. Frost, 136 S. CT. 1061
(2016), 139 S. CT. 1066(2019).
US Supreme Court rules unanimously federal regulations
do not supersede SOA ownership and management of
navigable waters in ANILCA CSUs.
MR. WALKER stated that SB 227 builds on the Sturgeon v. Frost
decision by applying it statewide to other federal CSUs.
3:43:48 PM
MR. WALKER reviewed slide 6, The Navigability Phase of the
Initiative, which depicted a series of assertions, shown in
ovals or bubbles that fit in with the "Unlocking Alaska
Initiative" that began a year ago with phase one. He reviewed
several assertions:
Intensify quiet title litigation against the federal
government
Assert state management of submerged lands in federal
areas.
Legislatively codify state-owned navigable waters in
federal areas.
MR. WALKER stated that SB 227 builds on work his section of DNR
has undertaken over the past year to analyze federal areas
throughout Alaska to identify navigable tidally-influenced
waters. SB 227 includes 1,873 rivers and lakes within National
Park Service (NPS) and Tongass National Forest areas in Alaska.
He indicated that if SB 227 were to pass, he would come before
the legislature for several years to satisfy the reporting
requirement in SB 227. He noted that the next phase would
increase the list to include navigable waters, rivers, and lakes
within the Chugach National Forest and US Fish and Wildlife
Service (USF&WS) areas.
3:46:20 PM
MR. WALKER read slides 7 and 8, Proposed Codification
Legislation.
[Original punctuation provided.]
• Codifies SOA ownership, management and control of
navigable waters and submerged lands within federal
areas not covered by a valid pre-statehood
withdrawal explicitly defeating state title.
• Sets forth specific navigable waters and submerged
lands in federal areas statewide belonging to SOA.
• Sets forth example "susceptibility" criteria derived
from caselaw to guide in navigability
determinations.
3:46:34 PM
MR. WALKER stated that this mirrors the navigable waters in the
RS 2477 [Revised Statute 2477 (Section 8 of the Mining Act of
1866)] upon which this bill is based., so the federal government
and the general public relying on the map of navigable water or
referencing the statutes [AS 38.04] will know precisely where
state or federal property lies. The bill also sets forth basic
susceptibility criteria derived from the case law to guide
navigability determinations made by DNR.
• Proposed statute contains an annual reporting
requirement
• FIRST PHASE: All NPS areas statewide and Tongass
National Forest.
• SECOND PHASE: USFWS refuges and Chugach National
Forest.
• THIRD PHASE: Remaining USFWS refuges and BLM
lands.
• FOURTH PHASE: Ongoing process of clarification,
modification and amendment.
• Framework for proposed statute is based upon RS 2477
ROW codification project of 1990s [AS 19.30.400].
3:48:16 PM
MR. WALKER noted that slides 9 12 relate to the sectional
analysis of the bill, but he would not cover them at this time.
3:48:31 PM
MR. WALKER advanced to slides 12 and 13, State-Owned Navigable
Waters Federally Acknowledged to Date and State-Owned Navigable
Waters After Proposed Codification, which consisted of two maps
of the State of Alaska.
MR. WALKER indicated that the two maps provide an overall sense
of the areas addressed by the bill. He said he was unsure why
the federal government was reticent to acknowledge state
ownership. He surmised that the federal government may not want
in-holdings within federal land to co-manage or have concurrent
land management.
MR. WALKER explained that slide 12 is color-coded, showing the
navigable and undetermined waters, and slide 13 shows the state-
owned navigable waters after the passage of SB 227.
3:50:02 PM
MR. WALKER advanced to slide 14, Noatak NP/Kobuk Valley NP
Federally Acknowledged Navigable Waters to Date, which shows the
Noatak National Preserve in tan and the Kobuk Valley National
Preserve in green. The navigable rivers and waterways are shown
in blue, the undetermined ones in pink, and the conflicts in
blue and pink combined.
MR. WALKER reported that the only rivers the federal government
has acknowledged as navigable within the two large preserves are
a portion of the Noatak River in the tan area and the Kobuk
River depicted in the green area on the map. He noted every
river shown in blue is identified in the 1,873 rivers and lakes
defined within the statute.
3:51:13 PM
MR. WALKER advanced to slide 15, Noatak NP/Kobuk Valley NP
Navigable Waters after Codification, which shows the increased
state-owned navigable waters were SB 227 to pass. He directed
attention to the undetermined areas as depicted in pink, noting
that DNR took a conservative approach when making determinations
because the public relies on them when traveling on navigable
waters, whether motorized or non-motorized vessels are allowed,
and whether state or federal laws apply. However, he stated that
if DNR litigated the navigable rivers, it would move those lines
further into the headwaters.
3:51:36 PM
SENATOR VON IMHOF joined the meeting.
3:53:00 PM
VICE CHAIR MICCICHE directed attention to the undetermined
waterways shown in pink on slide 15, Noatak NP/KOBUK VALLEY NP.
He wondered whether the waterways listed as undetermined were
ones that DNR had deemed as not navigable.
3:53:24 PM
MR. WALKER answered no. He said that in this first wave of
legislation, the undetermined waterways depicted in pink were
waterways that the department has not yet identified as
navigable waters. He stated that with the initial bill, DNR has
substantially enhanced the inventory of state waters. DNR is
reserving judgment on the upper headwaters to a later date.
3:53:56 PM
SENATOR KAWASAKI asked whether DNR set a confidence level or
used technical information to make the determination.
MR. WALKER answered that DNR applied a strict methodology, using
a group of technical experts within his section in the Division
of Mining, Land, and Water, who examined aerial imagery,
historical accounts, and other proof that would be considered in
quiet title litigation. He indicated that the technical experts
were confident in their determinations. He said DNR would stand
behind their navigable water determinations and allow the public
to access the waterways.
3:55:11 PM
MR. WALKER advanced to slide 16, Proposed Legislation.
Alaska's Ownership of Submerged Lands beneath
Navigable in-fact and Tidally Influenced Rivers and
Lakes is One of the Fundamental Promises of Statehood.
It's been 62 years. It is time for the Federal
Government to keep its promise to the State of Alaska.
SB 227 is a BOLD step in that direction.
MR. WALKER reiterated that SB 227, which is phase one, more
accurately codifies what the state truly owns within federal
areas statewide. SB 227 is phase one of the project. The goal is
for DNR to make determinations to identify lands that belong to
the state, bringing clarity to title to state lands within
federal lands.
MR. WALKER urged members to pass SB 227.
3:56:43 PM
SENATOR STEVENS asked how DNR would enforce the state's rights
with the federal government.
MR. WALKER answered that the federal government's position has
been vague, that maybe it is or is not state navigable water, so
the federal government retains possession. That position has
made it difficult for the state to assert its ownership in
federal court. However, this bill would assert state ownership
and force the federal agencies to acknowledge or dispute the
state's claims, allowing the state to litigate. He provided an
example to illustrate his point. The federal agencies have been
issuing permits precluding operators from doing certain things
on state submerged lands. Several operators applied for permits
this past year for a mooring buoy or boat storage at Crescent
Lake on state submerged land. It led to a painstaking
navigability determination and ultimately the state issued the
permit. The federal agencies responded that the state shouldn't
issue the permits.
4:02:52 PM
VICE CHAIR MICCICHE invited Ms. Alloway to testify.
4:02:58 PM
JESSIE ALLOWAY, Solicitor General; Statewide Section Supervisor,
Opinions, Appeals, and Ethics Section, Civil Division,
Department of Law, Anchorage, Alaska, emphasized that the state
should move away from asking the federal government for
permission to manage state-owned lands. The equal footing
doctrine transferred these lands as a matter of law at the time
of statehood. The state does not need a quiet title or a
recordable disclaimer of interest, but in the past, Alaska took
the position that it was required to manage state-owned land.
She stated that the Sturgeon decision [Sturgeon v. Frost, 136 S.
CT. 1061 (2016), 139 S. CT. 1066(2019)] shifted the dynamic and
made it clear that navigable waterways are not within federally
managed CSUs. This legislation fills a gap that has always
benefitted the federal government. She agreed with Mr. Walker
that the federal land managers would often not decide whether a
waterway is navigable. SB 227 would indicate that per Sturgeon,
DNR has identified this as a navigable waterway, and state
management and rules will apply. If the federal land managers
disagree with DNR's navigability determination, the onus is on
them to make a determination, which could be litigated. The
state would manage its state-owned lands if federal land
managers agreed.
4:05:36 PM
SENATOR KIEHL referred to Mr. Walker's Crescent Lake mooring
buoy and boat storage issues in 2021. He asked whether the state
would be precluded from litigating if the federal government had
responded that the state could not issue a permit.
MS. ALLOWAY answered that the state could not have litigated the
matter because there was no case or controversy since the
federal government did not take a solid position on ownership.
She explained that if the federal government had responded by
saying the state could not issue permits for mooring buoys, she
would interpret that to mean they were asserting land ownership.
At that point, either party could file a quiet title action in
court.
4:07:09 PM
VICE CHAIR MICCICHE asked whether the passage of SB 227 would
allow the state to go to court and assert state ownership. He
surmised that the federal government would likely challenge some
of the navigable waterways.
4:08:04 PM
MS. ALLOWAY answered that is correct. She related her
understanding that DNR had identified the navigable waterways
and is confident that they are navigable in fact. She opined
that the federal government would not challenge many navigable
waterway determinations but reluctantly accept them. Some
disputes might need to be litigated. She stated that DNR was
currently litigating several cases hoping to answer those
questions. As more claims are litigated, the state will better
understand the ownership of the smaller waterways.
4:09:09 PM
VICE CHAIR MICCICHE referred to page 5, line 15, Plenty Bear
Creek. He stated that DNR believes that there is a point in
Plenty Bear Creek that the state believes is navigable, and
there was a point where it becomes headwaters. He asked if DNR
had an idea of when the creek becomes non-navigable.
MR. WALKER answered yes. He stated that Plenty Bear Creek has a
number assigned to it, number 10, which correlates to the
official state navigable waters map. He noted that this is on
the Alaska map program. The user can drill down with increasing
specificity, focus on the creek, and determine when the
navigability changes from exceptionally high to something else.
He did not recall specifically, but typically there are natural
features such as a landing strip or some historical account the
department used to make the determination.
4:11:27 PM
SENATOR KIEHL referred to Sections 6 and 7 of the bill, which
define terms used in determining navigability. He wondered if
any of these were in question or if these terms are well-
established case law. He asked how contentious these definitions
were.
4:12:27 PM
MS. ALLOWAY responded that the federal government may still
contest the definitions, even though DNR pulled them from case
law. For example, the Gulkana River was litigated in the 1980s.
In that case, the Ninth Circuit Court of Appeals (Ninth Circuit)
opined that if a person could float an inflatable raft down that
waterway to fish, it was sufficient commercial use to establish
that it was a highway of commerce.
MS. ALLOWAY noted that in current litigation, attorneys continue
to argue whether an inflatable raft is a customary and
traditional watercraft. She stated that she was confident in
reviewing this legislation that everything in it is supported by
federal case law, either by the Ninth Circuit or the US Supreme
Court. However, her hesitancy in responding is because the
federal government could likely contest whether it's true.
MR. WALKER added that all these definitions, except for federal
areas, could be found elsewhere in statute. For example, the
Alaska Department of Fish and Game may use the term ordinary
high water mark or mean high water line. He stated that these
definitions are similar and primarily mirrored in AS 38.04.
4:14:42 PM
SENATOR KIEHL agreed with the deputy commissioner, the section
chief, and the assistant attorney general that the second
Sturgeon case said what it said. He said he was trying to figure
out what SB 227 effectively does legally. He referred to the
ovals on slide 6.
Legislatively codify state owned navigable waters in
federal areas.
SENATOR KIEHL asked if the bill doesn't pass, whether the
department will continue to move forward with the assertions.
MR. WALKER answered that the department intends to move forward
with all the assertions in the ovals on the slide. He emphasized
that SB 227 is important because it would clearly assert
Alaska's ownership of these lands. The bill and the map of
navigable waters could help clear up anything murky. He agreed
that DNR's efforts wouldn't come to a standstill, and the
department would continue to move forward if the bill didn't
pass. However, it would be easier if the bill were to pass
because it asserts state ownership. He referred to the Ninth
Circuit in the Black River decision. The court used the
expression "a dog in the manger The Ninth Circuit Court of
Appeals opined that the federal government, in many respects,
seemed to behave like a dog in the manger, where the dog guards
the food trough and won't let allow other animals have access.
The dog doesn't eat the food, but it won't allow other animals
access.
4:17:44 PM
MR. WALKER offered his view that that is what the federal
government does, through inaction, by being vague, that maybe
it's navigable water and maybe it's not. This frustrates the
state's ability to fully realize state ownership granted at
statehood. He reiterated that SB 227 would help make the state's
case of asserting ownership, management, and control.
4:18:24 PM
SENATOR KAWASAKI related that he reviewed definitions from
Washington State and the US Army Corps of Engineers for
ordinary high water mark," which were similar but different. He
asked whether that was a term of art or if that language could
be litigated.
MR. WALKER answered that navigability means different things
depending on the purpose. For instance, the US Coast Guard would
be concerned with boating safety. However, for DNR's purposes,
the definitions in AS 38.04 relate to navigability for title
purposes or who owns the land. The bill uses definitions from
case law on navigability for title but not used by Environmental
Protection Act, the USCG, or other navigability purposes.
4:19:45 PM
VICE CHAIR MICCICHE noted that he related to the "dog in the
manger" expression, but the Alaska National Interest Lands
Conservation Act (ANILCA) defines those rights. The state was
successful in the Sturgeon case for the Nation River in the
Yukon Charley Preserve in 2007, so the state has case law. He
wondered at what point DNR would have sufficient evidence or
cause to litigate, negating the necessity for a bill to assert
state ownership for each navigable body of water, stream, or
creek. He asked how many bills or litigation costs are necessary
before the state has sufficient case law that proves ANILCA
provides adequate standing for the state to manage its navigable
waters.
4:20:41 PM
MS. ALLOWAY said she could not answer that question. She offered
her view that determining ownership of navigable waters in
Alaska is a federal task, so the legislature would not impact
what that task means in the federal court. However, SB 227
informs the federal government and the public that in situations
where the federal government or the state has expressly said who
owns what, the state owns the navigable waters. She stated that
the Sturgeon case found that the federal government cannot
subsume submerged lands within its CSUs. SB 227 shifts the
burden to the federal government to decide whether it will
litigate to defend federal ownership. Otherwise, the state must
continue obtaining federal government permission to manage state
lands, which gives the federal government substantial power.
MS. ALLOWAY stated that since the federal government often will
not take a position on who owns the land, the state has two
options: litigate or go through the Recordable Disclaimer of
Interest (RDI) process. She explained that the state needs a
case of controversy in order to litigate. The Ninth Circuit's
"dog in the mangeranalogy informed the federal government that
if it doesn take a position, the state can't litigate.
MS. ALLOWAY reviewed the second option, the RDI process, in
which the state files an RDI application and pays the federal
government to investigate whether the land is state-owned. Often
the federal government holds the application for 5 to 10 years
on big rivers, such as the Kuskokwim or the Stikine, without
taking action. She offered her view that SB 227 would place the
burden on the federal government in disputes over state-owned
land to justify its ownership.
4:23:00 PM
VICE CHAIR MICCICHE characterized DNR's assertive actions on
submerged lands as "poking the bear." He suggested that the
public and federal government view Alaska differently than they
did in 1959. He asked whether the risk of Congress amending
ANILCA might make this expensive, annoying, inefficient problem
permanent.
MS. ALLOWAY answered that while she cannot predict what Congress
will do, she did not envision any substantial risk because the
federal government cannot change what the state owns. The US
Constitution and the equal footing doctrine in the Submerged
Land Act granted the state ownership of its submerged lands. She
offered her belief that if the federal government took the
state's submerged lands, it would be taking, which requires just
compensation. She acknowledged that the federal government could
attempt to amend ANILCA, Section 103(c), to broaden its powers,
asserting that it can manage these lands within the internal
boundaries of its CSUs. She envisioned that the state could
raise numerous legal questions because ANILCA was a grand
compromise. It would raise issues, including what the state
would need in return for taking some of its rights away.
4:25:18 PM
SENATOR KIEHL directed attention to the retroactivity clause in
SB 227 that goes back to January 3, 1959, the date of statehood.
He agreed Alaska owns its navigable waters. He referred to
Dredge Lakes near the Mendenhall Lake and US Forest Service
(USFS) infrastructure. He asked whether this bill would provide
authority for the state to assert that the USFS must acquire a
permit going back to the date of construction.
MR. WALKER answered yes. He stated that DNR has requested that
the Department of the Interior provide an inventory of all
federal infrastructure constructed on state lands since the
federal government did not comply with state permitting
requirements. Although DNR will not assess permitting fees, DOI
must go through the state permitting process for any federal
infrastructure on state lands. Secondly, the federal government
has issued permits for groups to engage in certain activities on
state lands for scientific or other reasons. The state informed
the federal government that its permittees must obtain state
permits for those activities. DNR has offered to work with DOI
to determine whether federal or state regulatory authority
applies to Alaska's federal and state lands. For example, this
might mean a person needs a permit for any activities conducted
above the high water line. Still, activities conducted below the
high water line require compliance with state law. He reported
that Mr. Goodrum has participated in biweekly meetings with
federal counterparts to bring federal infrastructure on state
lands into compliance.
4:28:40 PM
SENATOR KIEHL offered his view that contacting those conducting
new or ongoing activities makes sense. Still, he wondered about
the cost of reaching back to statehood versus looking forward.
He offered his view that it might make more sense for DNR to put
its efforts into navigability determinations for navigable lakes
or streams. He expressed concern about the effective date
regarding the state's priorities.
4:30:10 PM
VICE CHAIR MICCICHE opened public testimony on SB 227.
4:30:45 PM
CHRISTINE HUTCHISON, representing self, Kenai, Alaska, spoke in
support of SB 227. She said she had been a resident since 1972.
She offered her belief that this bill is long overdue. She said
she listened to attorneys discussing the importance of defining
navigability last week, but the federal government does not wish
to define it. She offered her support for the state to move
forward with the assertions in the ovals [listed on slide 6].
She suggested that the legislature should introduce a bill for
each assertion, and the legislature should focus on this issue
rather than arguing about the permanent fund dividend or
election integrity. She stated that this bill is the first step
to affirming that Alaska is a sovereign state. She urged members
to pass SB 227.
4:34:31 PM
SENATOR BISHOP joined the meeting.
4:34:49 PM
VICE CHAIR MICCICHE closed public testimony on SB 227.
VICE CHAIR MICCICHE held SB 227 in committee.
SB 228-OUTSTANDING NAT'L RESOURCE WATER
4:35:06 PM
VICE CHAIR MICCICHE announced the consideration of SENATE BILL
NO. 228 "An Act requiring the designation of outstanding
national resource water to occur only by statute; relating to
the management of outstanding national resource water by the
Department of Environmental Conservation; and providing for an
effective date."
4:35:41 PM
RANDY BATES, Director, Division of Water, Department of
Environmental Conservation, Juneau, Alaska, paraphrased prepared
remarks:
[Original punctuation provided.]
Outstanding Natural Resource Waters, ONRWs or Tier 3
waters, are defined as waters of "of exceptional
recreational or ecological significance" which shall
be "maintained and protected" from degradation in
perpetuity. A Tier 3 designation of a waterbody
bestows the highest level of water quality protection
under the federal Clean Water Act and restricts a wide
range of activities on these waters as well as on
adjacent lands. Since 1983, the Clean Water Act has
required that each state establish an ONRW or Tier 3
designation process.
4:36:48 PM
MR. BATES continued.
[Original punctuation provided.]
Alaska has a process in place, formalized in November
2018 in the form of a Department Policy and Procedure,
that essentially reads the same as the bill "The
current process for nominating Tier 3 waters involves
proposing the introduction of legislation to make the
designation. Any such request may go to a legislative
representative or committee for consideration for
introduction as a legislative bill. Typically, a
request to an individual legislator would go to a
legislator whose district contains the proposed Tier 3
water."
Because the designation of a Tier 3 water carries with
it the requirement to maintain and protect the water
quality from degradation in perpetuity, the
designation restricts a wide range of activities on
the waters and adjacent areas, to include
• road and building construction
• recreational activities
• seafood processing
• municipal wastewater discharge and septic systems
• storm water discharge
• landfills
• gravel quarries
• large-scale resource development projects and or any
other activity that might affect the designated water
4:38:12 PM
MR. BATES continued.
[Original punctuation provided.]
Such widespread impacts effectively make Tier 3
designation a de facto land and water use decision,
one that may be based on designation criteria well
outside the Department's expertise and authority. For
illustration purposes, consider a Tier 3 nomination on
any Special River as an example. A party could
nominate that Special River for its exceptional
recreational significance for its sportfishing
opportunities. There is no doubt that this is a
special river and watershed, and it should be managed
accordingly, as all the agencies with expertise and
management authority currently do. However,
designation as a Tier 3 waterbody requires that the
water quality on the Special River be maintained and
protected in perpetuity for the reasons designated and
for the water quality at the time of designation.
What that practically means is that no new or
increased discharges to the river or its tributaries
would be permitted if the discharges would result in
lowering or degrading the water quality. That has
potential long-term if not permanent adjacent and
upstream land-use consequences no new discharge
contributions that lower or degrade water quality,
whether those new discharges meet water quality
standards or not. That would potentially eliminate
road improvements in the area, increased or changed
discharges from municipal wastewater treatment
facilities, increased recreational opportunities,
seafood processing, or anything else that might affect
the water quality.
The designation of a Tier 3 water includes significant use
restrictions and requires a substantial evaluation on the use of
a waterbody that exceeds the Department's statutory authority.
4:40:16 PM
MR. BATES continued.
[Original punctuation provided.]
The Department has proposed this bill to formalize
that the designation of Tier 3 waters would be
accomplished, appropriately, by the legislature
through statute, and having that legislative process
would provide two very important things:
1. A full and public process engaging all the
interested and affected parties, including those
communities, residents, users, developers, and
conservationists, and also those agencies with
oversight responsibilities for the area lands and
waters; and
2. A full discussion on the consequences, restrictions,
or impact to other activities and potential
activities by the designation, including future and
foreseeable activities.
4:41:07 PM
Providing for the designation of a Tier 3 water as
structured in the bill will bring certainty to the
process and would codify in statute a consistent
practice for how lands and waters across the state
would be designated for conservation by legislative
approval rather than by division, department, or
judicial discretion.
4:41:49 PM
SENATOR KIEHL asked whether the courts have created a Tier 3
designation in the absence of a structure or framework.
MR. BATES said he was unaware of any judicial decision. He
explained that DEC's Tier 3 decisions could potentially be
litigated. DEC would prefer to have land use decisions made by
the legislature, not have them made by an agency or the courts.
SENATOR KIEHL said he understood the arguments about impacts on
adjacent lands, but these are not land use decisions but are
water quality decisions under the Clean Water Act.
MR. BATES answered that the reasons for Tier 3 designations
could go beyond simple water quality to recreational or
ecological purposes. He referred to his earlier example of a
special river, relating that a waterbody could be designated as
Tier 3 because of its extraordinary fishery or the rafting
opportunities. However, those reasons fall well outside the
bounds of the expertise and authority of the Division of Water,
which focuses on water quality.
4:44:01 PM
SENATOR KIEHL commented that it was an interesting dilemma. He
offered his belief that the legislature provides various state
agencies with significantly more authority than this. For
example, DNR can sell land, which would impact land use. DOT&PF
can construct a highway, creating significant rights-of-way. He
said it always seems strange when a bill says the legislature
can pass a bill.
4:45:13 PM
VICE CHAIR MICCICHE asked why the administration brought the
bill to the legislature.
MR. BATES answered that DEC believes the legislature is the
proper forum to consider the broader implications of Tier 3
designations. He emphasized that the Tier 3 designation locks in
the water quality. This means there cannot be any increased
contribution that would degrade water quality. Suppose there was
a publicly-owned wastewater facility located upstream of a Tier
3 river. It would mean that the surrounding population cannot
increase because it would increase the discharge from the
publicly-owned utility and contribute some pollutants beyond the
water quality classification of a Tier 3 river. It would also
mean that recreational user opportunities could not be increased
in the area. He opined that the Tier 3 designation has the
potential to lock up waters and preserve them in perpetuity. He
acknowledged that might be appropriate in some circumstances.
Still, it is a major decision that would prevent and preclude
the development of any other activity that would contribute to
the degradation of the water quality of the Tier 3 river, even
if the permitting process could mitigate the impacts. He
emphasized that a Tier 3 designation means that the activity
cannot degrade or contribute to water quality degradation of the
Tier 3 waterbody.
4:47:35 PM
MR. BATES said DEC believes this goes beyond the bounds of DEC's
authority, focus and discretion because it may require
designating areas for subsistence, fishery, or recreational use
and tread on another agency's authority. The legislature
designates critical habitat areas, and that same process should
be used for Tier 3 designations.
4:48:25 PM
SENATOR KIEHL related his understanding that temporary impacts
to water resulting from building or improving roads were
permitted and that roads have been improved through Tier 3
watersheds elsewhere in the country.
MR. BATES responded that temporary and de minimis activities are
allowed so long as the activities do not contribute to poor
water quality. Thus, temporary impacts related to road
construction could be accommodated for short periods. However,
if the road results in increased stormwater runoff or
contributes to nonpoint source pollution, DEC could not permit
the road building activity or construction of a mall at the end
of the road.
4:49:57 PM
SENATOR KAWASAKI asked if Tier 3 designations could ever be
amended or removed.
MR. BATES answered that he was unaware of a process to withdraw
a designation. He related that his division had queried other
states, and no one had attempted to do so.
SENATOR KAWASAKI commented that the dimensions of water bodies
occur because of climate change. He asked how that would affect
a Tier 3 designation.
MR. BATES acknowledged that was a fair point. He explained that
the Division of Water only has the authority to control
permitted activities and, to the extent it can, nonpoint source
activities that contain material that enters the water bodies.
He offered his view that if climate change impacts result in
increased turbidity, DEC we need to develop a management plan to
address it. For example, a highly sulfuric warm spring with a
temperature of 104 degrees Fahrenheit could be designated as a
Tier 3 waterbody. He was unsure how DEC would respond if the
temperature increased to 108 degrees.
4:52:25 PM
VICE CHAIR MICCICHE stated that the committee previously
discussed SB 227, which requests Section 404, Clean Water Act
primacy. He wondered if this bill punts the issue to the
legislature and how the legislature would handle Tier 3
determinations since DEC uses a science-based approach to make
them.
MR. BATES offered his view that DEC has an exceptionally
skilled, science-based staff that permits, evaluates, and
mitigates water quality to avoid negative impacts and meet water
quality standards to move projects forward. DEC conducts
fieldwork and samples water throughout the state. He noted that
DEC's website explains these activities. Instead of punting, DEC
would bring a level of expertise and science to the legislative
process related to Tier 3 designations. However, Tier 3
designations carry an opportunity to adversely impact activities
beyond water quality, such as fishery management, which fall
outside their area of expertise. He said DEC would like to
participate in the process related to water quality. He offered
to expand his response to address Section 404 permits if
desired.
4:55:40 PM
VICE CHAIR MICCICHE was unsure how the process would work under
SB 228. He asked if the bill were to pass, how the legislature
would make the Tier 3 determinations: if legislators would
decide a water body should be designated and introduce a bill.
He wondered if the goal was never to have an outstanding
national resource waterbody.
4:57:17 PM
MR. BATES stated that if SB 228 were to pass, a legislator or a
committee could introduce a bill on behalf of a constituent that
would identify the boundaries of a special river as a Tier 3
waterbody and list the reasons, including a minimum amount of
background information to support the request. This would mirror
DEC's current process. He surmised that testimony would reveal
the science, policy, and justification during the public
process. For example, ADF&G could testify on matters related to
fisheries management, DNR on navigability and allowable
watercraft, DEC on water quality aspects, and landowners along
the river would weigh in on resource development activities that
could contribute to the river's water quality degradation. He
characterized the legislative process as a robust one.
MR. BATES responded to Senator Micciche's question on how
science affects Section 404 permitting, relating that DEC's
staff is exceptionally skilled in evaluating, permitting, and
conditioning projects. Under the Section 404 permitting process,
DEC imposes jurisdictional determinations, and the US Corps of
Engineers implements them. He related that to determine if the
activity is in US waters as defined under federal law, DEC would
evaluate the hydrology, flora, and fauna typically found in
wetlands, which are considered waters of the US. He
characterized the process DEC uses to determine whether the
activity requires a Section 404 permit as a prescriptive
scientific process.
5:00:34 PM
SENATOR BISHOP said suppose the administration or a legislator
were to bring a bill forward to nominate a Tier 3 waterbody.
Suppose the waterbody consisted of a 10-mile waterway connected
to the Yukon River. He asked for an estimate of the cost to
perform the background to bring a bill forward, noting that
while the department has its experts, the legislature also has
its experts.
MR. BATES offered to research this and report to the committee.
However, the legislature currently considers bills ranging from
simple to complex ones. He surmised that someone who would
nominate a 10-mile stretch of water would likely compile several
years of data and provide justification to support designating
the river as Tier 3 to allow the legislature to make a rational
decision. Under the current process, DEC would want to know why
the Tier 3 designation was necessary, any associated costs, what
outreach was done to assess development activities in the area,
and what activities could be precluded to understand the
consequences of the Tier 3 designation.
5:03:35 PM
SENATOR KIEHL said suppose a Tier 3 waterbody is somehow
designated, but it shouldn't have been. He wondered whether it
could be undesignated. He asked Mr. Bates to clarify that no
other state has a process to de-designate a Tier 3 designation.
He stated that three years ago, the Division of Water testified
that the Environmental Protection Agency doesn't have any rules
against it. EPA's correspondence to DEC indicated the agency
didn't have any objections to having it delisted or de-
designated. He asked whether there was any conflict or if both
were accurate.
MR. BATES answered that he does not see any conflict. He said he
is unaware another state has a de-designation process. He
further responded that he was aware that EPA does not have a
prohibition against de-designating a Tier 3 waterbody. He
offered to follow up with the committee.
5:05:28 PM
VICE CHAIR MICCICHE opened public testimony SB 228.
5:05:50 PM
LINDSEY BLOOM, Campaign Strategist, SalmonState, Juneau, Alaska,
spoke in opposition to SB 228. SalmonState is a nonprofit
organization working throughout Alaska, focused on salmon and
fishery conservation issues. She surmised from the questions
asked that many committee members are familiar with the issues.
She stated that she had been part of that application in the
past and was willing to discuss her experience.
MS. BLOOM stated that SalmonState believes that DEC has the
authority and in-house expertise to process applications and use
its highly skilled staff to review the criteria and determine
whether the waterbody should be designated as Tier 3. She noted
that DEC wants to punt this to the legislature and politicize
the issue. Tier 3 designations should be based on a scientific
process. She stated that requiring the legislature to designate
the outstanding national resource waters is the wrong direction
to go.
5:08:10 PM
SENATOR STEVENS said he is always concerned about water quality
and protecting the environment. Still, he is also worried about
imposing restrictions on industry, which could bring fisheries
ashore instead of at sea. He asked whether some of these
restrictions could damage the industry.
MS. BLOOM answered that she was not concerned. As Mr. Bates
stated, there would be allowances for temporary and de minimis
discharges to Tier 3 designated waterbodies. She said Bristol
Bay is one of the fisheries she had participated in on the
Naknek River. She suggested if that river were designated as a
Tier 3 river, it would mean economic activity could not occur
that would permanently impair the waterbody and affect seafood
processors. She offered her belief that the fishing industry's
discharges would fall within the temporary and de minimis
category. She offered her view that the state should protect
many salmon streams, so their water quality is not diminished
and compromised because many of Alaska's coastal communities
depend on these fisheries.
5:10:04 PM
SENATOR STEVENS wondered why Ms. Bloom was in opposition to SB
228.
MS. BLOOM responded that she opposes SB 228 because the agency
has been negligent in its responsibility to process applications
and make decisions on Tier 3 determinations. She related that
she was specifically involved in a Tier 3 application for Solara
Creek, a salmon-producing headwater in the Bristol Bay watershed
that was nominated years ago. DEC rejected the application
because DEC refused to create the process necessary to approve
or deny these applications. She emphasized that the agency
should focus on the scientific criteria, and if a nomination
meets the criteria, the waterbody should be protected and
designated. She offered her belief that the process does not
need additional layers of political and legislative debate
because it does not serve Alaskans.
5:11:53 PM
AARON BRAKEL, Inside Passage Waters Program Manager, Southeast
Alaska Conservation Council, Juneau, Alaska, spoke in opposition
to having a legislative-only approach to designating Tier 3
waterbodies in SB 228.
MR. BRAKEL stated that the legislature could delegate its
authority, which is appropriate in this instance. He clarified
that he was not opposed to the legislature introducing a bill to
designate a specific river or stream as outstanding national
resource water. Still, there should be a scientific, community-
based process to identify a waterbody as ONRW and go through a
state and scientific process to designate the water.
MR. BRAKEL suggested that if this Division of Water director
doesn't believe it's within his jurisdiction to designate ONRWs,
perhaps the next one might. He stated that Alaskans don't always
experience the Division of Water's permitting process the same
way the director represents it. He expressed concern about the
permitting process. For example, he reviewed a mining permit,
where it was clear to him that the State of Alaska had stepped
back and allowed a discharge of metals to continue. However, he
offered his view that a scientific process can be used for Tier
3 designations. He urged members not to pass the bill.
5:15:00 PM
SENATOR BISHOP said he is a miner. He said he guarantees that
DEC does not step back from the mining industry on the water
quality going back into the streams.
5:15:37 PM
VICE CHAIR MICCICHE closed public testimony on SB 228.
VICE CHAIR MICCICHE held SB 228 in committee.
5:16:28 PM
There being no further business to come before the committee,
Vice Chair Micciche adjourned the Senate Resources Standing
Committee meeting at 5:16 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 228 Fiscal Note DEC 1.25.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 228 Letter of Opposition Molly Dischner 4.6.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 228 Sectional Analysis 4.6.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 228 Tier III Waters Transmittal Letter 3.10.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 227 Fiscal Note DNR 3.10.22.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Sponsor Statement 3.10.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Sectional Analysis 3.15.22.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Presentation Submerged Lands 4.8.22.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |