Legislature(2017 - 2018)Anch LIO Lg Conf Rm

07/20/2018 01:30 PM STATE AFFAIRS

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Audio Topic
01:31:10 PM Start
01:32:04 PM Overview: How Will Ballot Measure 1 (initiative Petition 17fsh2) Impact the State of Alaska?
04:40:26 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Please Note Location --
-- Teleconference <Listen Only> --
+ How Will Ballot Measure 1 (Initiative Petition TELECONFERENCED
17FSH2) Impact the State of Alaska?
What will be Required of Departments to
Implement this New Policy and How Would this
Impact the State Budget?
-- Testimony <Invitation Only> --
<Time Limit May Be Set>
                    ALASKA STATE LEGISLATURE                                                                                  
            SENATE STATE AFFAIRS STANDING COMMITTEE                                                                           
            ANCHORAGE LEGISLATIVE INFORMATION OFFICE                                                                          
                       ANCHORAGE, ALASKA                                                                                      
                         July 20, 2018                                                                                          
                           1:31 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Kevin Meyer, Chair                                                                                                      
Senator David Wilson                                                                                                            
Senator Cathy Giessel                                                                                                           
Senator John Coghill                                                                                                            
Senator Dennis Egan (online)                                                                                                    
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
OTHER LEGISLATORS PRESENT                                                                                                     
Representative Chris Birch                                                                                                      
Senator Shelly Hughes (online)                                                                                                  
COMMITTEE CALENDAR                                                                                                            
OVERVIEW: How Will Ballot Measure 1 (Initiative Petition 17FSH2)                                                                
Impact the State of Alaska                                                                                                      
     - HEARD                                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
No previous action to record                                                                                                    
WITNESS REGISTER                                                                                                              
JOANNE GRACE, Director                                                                                                          
Civil Division                                                                                                                  
Alaska Department of Law                                                                                                        
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Addressed the state's position on Ballot                                                                  
Measure 1.                                                                                                                      
SAM COTTEN, Commissioner                                                                                                        
Alaska Department of Fish and Game                                                                                              
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
RON BENKERT, Fish & Game Coordinator                                                                                            
Division of Habitat                                                                                                             
Alaska Department of Fish and Game                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
MARC LUIKEN, Commissioner                                                                                                       
Alaska Department of Transportation and Public Facilities                                                                       
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
BEN WHITE, Environmental Program Manager                                                                                        
Division of Statewide Design and Engineering Services                                                                           
Alaska Department of Transportation and Public Facilities                                                                       
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
ANDREW T. MACK, Commissioner                                                                                                    
Alaska Department of Natural Resources                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
KYLE MOSELLE, Associate Director                                                                                                
Office of Project Management and Permitting                                                                                     
Alaska Department of Natural Resources                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
LARRY HARTIG, Commissioner                                                                                                      
Alaska Department of Environmental Conservation                                                                                 
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
ANDREW SAYERS-FAY, Director                                                                                                     
Division of Water                                                                                                               
Alaska Department of Environmental Conservation                                                                                 
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Addressed  the impact of Ballot  Measure 1 on                                                             
the department.                                                                                                                 
ACTION NARRATIVE                                                                                                              
1:31:10 PM                                                                                                                    
CHAIR  KEVIN  MEYER  called the  Senate  State  Affairs  Standing                                                             
Committee meeting  to order at 1:31  p.m. Present at the  call to                                                               
order  were  Senators  Coghill,  Wilson,  Giessel,  Senator  Egan                                                               
(online), and Chair Meyer.                                                                                                      
^OVERVIEW:  How  Will  Ballot   Measure  1  (Initiative  Petition                                                             
17FSH2) Impact the State of Alaska?                                                                                           
 OVERVIEW: How Will Ballot Measure 1 (Initiative Petition 17FSH2)                                                           
                   Impact the State of Alaska                                                                               
1:32:04 PM                                                                                                                    
CHAIR MEYER  announced the committee's  agenda is an  overview of                                                               
Ballot Measure  1, Initiative Petition 17FSH2.  He explained that                                                               
the committee  meeting would address  the initiative's  impact on                                                               
the  state's day-to-day  operations  and budgets.  He noted  that                                                               
four commissioners would  address the impact to  the state should                                                               
the initiative  pass. He emphasized  that the committee was  on a                                                               
fact-finding  mission  and  would  not take  a  position  on  the                                                               
initiative.  He noted  that the  initiative was  under litigation                                                               
and conceded that  there was not a lot of  time to educate people                                                               
on what the initiative's impact would be on the state.                                                                          
1:33:57 PM                                                                                                                    
JOANNE  GRACE, Director,  Civil  Division,  Alaska Department  of                                                               
Law,  Juneau, Alaska,  disclosed that  she has  held her  current                                                               
position for  several months and  was previously the head  of the                                                               
Civil Appeals Section.  She revealed that during her  time in the                                                               
Civil Appeals Section  she handled the Alaska  Supreme Court case                                                               
in Mallot v. Stand for Salmon  which is litigation that arose out                                                               
of the initiative that is now known as Ballot Measure 1.                                                                        
She  said  she   would  explain  the  state's   position  on  the                                                               
previously   noted  litigation   to  provide   context  for   the                                                               
discussion  of   the  other  agencies  that   would  address  the                                                               
committee. She  noted that  prior to  her explanation,  she would                                                               
address the  committee's forthcoming departmental  testimonies as                                                               
     In testifying  today, the agencies  will be  mindful of                                                                    
     Alaska's  statute AS  15.13.145  which prohibits  state                                                                    
     agencies from  spending money to influence  the outcome                                                                    
     of  a   ballot  measure  unless  the   Legislature  has                                                                    
     specifically appropriated  money for that  purpose. The                                                                    
     Alaska Public Offices  Commission (APOC) has determined                                                                    
     that  a public  official's  statements  about a  ballot                                                                    
     proposition  do not  violate the  statute  if they  are                                                                    
     made in the usual and  customary duties of the official                                                                    
     such  as  responding  to  a  constituent's  inquiry  or                                                                    
     answering questions at a press conference.                                                                                 
     The public officials who are  appearing at this hearing                                                                    
     to  explain the  impacts of  Ballot Measure  1 will  be                                                                    
     engaging  in conduct  very  similar  to the  activities                                                                    
     that  APOC has  determined  to be  permissible, so  the                                                                    
     statute  also permits  their testimony  today, but  the                                                                    
     Department  of Law  has advised  them  to refrain  from                                                                    
     taking  a position  on the  initiative and  just simply                                                                    
     provide  an  objective  view  of  its  impact  on  each                                                                    
     agency;  that said,  the sponsors  of Ballot  Measure 1                                                                    
     disagree with  the state's  interpretation of  the bill                                                                    
     and the  state agencies do  not proport to  explain the                                                                    
     sponsors' interpretation.                                                                                                  
1:36:11 PM                                                                                                                    
MS. GRACE addressed the pending litigation for Ballot Measure 1                                                                 
as follows:                                                                                                                     
     My  main  purpose  here  is   to  explain  the  pending                                                                    
     litigation on Ballot Measure 1.  The lawsuit arose from                                                                    
     the  decision  of  the lieutenant  governor  which  was                                                                    
     based on  the advice of  the Department of Law  to deny                                                                    
     certification of the  proposed initiative. Under Alaska                                                                    
     statutes,  the  lieutenant  governor  has  60  days  to                                                                    
     either certify  or notify an initiative  committee that                                                                    
     he is going  to deny certification and  the reasons for                                                                    
     The potential reasons for denial  are very limited. One                                                                    
     reason is  that the  initiative deals with  the subject                                                                    
     that  is prohibited  by  the  Alaska Constitution.  One                                                                    
     prohibited  subject  is  appropriation.  An  initiative                                                                    
     that  makes  an  appropriation  cannot  appear  on  the                                                                    
     ballot.  The  Alaska Supreme  Court  has  said that  an                                                                    
     initiative makes an appropriation  when it deprives the                                                                    
     Legislature  of  its  exclusive authority  to  allocate                                                                    
     state assets among competing needs.                                                                                        
     The  court  has  also  held  that  the  prohibition  on                                                                    
     allocating state  assets by  initiative is  not limited                                                                    
     to money,  but also  applies to natural  resources. The                                                                    
     reason  that   the  convention  delegates   included  a                                                                    
     prohibition  on appropriation  via  initiative is  that                                                                    
     they  saw in  other states  taking control  of finances                                                                    
     away   from    the   Legislature   had    impeded   the                                                                    
     Legislature's  ability  to  do  its  job,  that  is  to                                                                    
     facilitate governmental  functions and to plan  for the                                                                    
     state's future.                                                                                                            
     In Alaska  it makes sense to  include natural resources                                                                    
     in this  prohibition because we  are a  resource state,                                                                    
     because Congress gave Alaska  an enormous grant of land                                                                    
     and  mineral  rights to  allow  the  state to  generate                                                                    
     revenues   to  fund   state  government.   So,  if   an                                                                    
     initiative  can  take  that  authority  away  from  the                                                                    
     Legislature,  that   would  be   just  as   harmful  as                                                                    
     restricting  the  Legislature's   ability  to  allocate                                                                    
     financial resources.  So, a law  like Ballot  Measure 1                                                                    
     can  be  enacted by  the  Legislature,  just cannot  be                                                                    
     enacted by  initiative so that the  authority to decide                                                                    
     how to  use the state's assets  remain exclusively with                                                                    
     the Legislature.                                                                                                           
1:38:27 PM                                                                                                                    
MS. GRACE continued as follows:                                                                                                 
     The Department  of Law advised the  lieutenant governor                                                                    
     that  Ballot  Measure  1   makes  an  appropriation  by                                                                    
     eliminating  the Legislature's  exclusive authority  to                                                                    
     allocate anadromous  fish habitat  to certain  uses, it                                                                    
     does  this in  part  by eliminating  any discretion  to                                                                    
     allocate the  habitat to uses  that do  not permanently                                                                    
     preserve  it;  for   example,  some  large  development                                                                    
     The  initiative  requires  a  permit  for  any  use  of                                                                    
     anadromous fish habitat that will  have an impact other                                                                    
     than  a de  minimis effect,  and it  defines anadromous                                                                    
     fish habitat  very, very broadly  to include  all lands                                                                    
     and  waters that  could  affect  anadromous fish,  even                                                                    
     indirectly;  it  creates  standards  and  it  prohibits                                                                    
     granting a  permit for activities that  cannot meet the                                                                    
     Several  of  the  initiative's  provisions  create  the                                                                    
     appropriation  of fish  habitat,  among  these are  the                                                                    
     bill's prohibition on granting  a permit for activities                                                                    
     that  cause  substantial  damage to  habitat;  this  is                                                                    
     found  in section  7 of  the proposed  bill. Under  the                                                                    
     bill   substantial  damage   will   occur  if   despite                                                                    
     mitigation  measures any  anadromous fish  habitat will                                                                    
     be  adversely effected  such that  it  will not  likely                                                                    
     recover or be restored within  a reasonable period to a                                                                    
     level that sustains the fish  and wildlife that depends                                                                    
     on  it, so  this prohibits  a permit  for any  activity                                                                    
     that will  permanently displace  any fish  habitat, but                                                                    
     large  acreage  development   projects  will  generally                                                                    
     permanently  displace at  least  some  small amount  of                                                                    
     anadromous  fish  habitat  as   that  is  very  broadly                                                                    
     defined  in the  bill;  for example,  according to  the                                                                    
     evidence presented  in the case, large  hard-rock mines                                                                    
     cannot  be  built   without  tailings  and  waste-rock-                                                                    
     disposal  areas  and   those  sites  often  permanently                                                                    
     impact  at   least  some  amount  of   anadromous  fish                                                                    
     habitat. Under currently law, the  loss of this habitat                                                                    
     is  mitigated off  site by  creating  new habitat,  but                                                                    
     Ballot  Measure 1  prohibits off-site  mitigation; this                                                                    
     provision will  also prohibit  other types  of projects                                                                    
     including, for  example, a highway  or a  pipeline that                                                                    
     will permanently displace wetlands  or a seasonal flood                                                                    
     plane that contributes indirectly to anadromous fish.                                                                      
1:40:55 PM                                                                                                                    
MS. GRACE continue as follows:                                                                                                  
     Another  section  proposed, AS  16.05.887(a)(5),  would                                                                    
     prohibit  a permit  for activities  that will  withdraw                                                                    
     water  from an  anadromous  fish habitat  in an  amount                                                                    
     that  will  adversely  affect   the  habitat,  fish  or                                                                    
     wildlife;  and  AS  16.05.887(a)(6)  would  prohibit  a                                                                    
     permit for activities that will  dewater and relocate a                                                                    
     stream or  river if the relocation  doesn't provide for                                                                    
     fish passage  or will adversely affect  anadromous fish                                                                    
     habitat,  fish or  wildlife, both  of those  provisions                                                                    
     will  prevent  a  permit for  many  activities.  Mining                                                                    
     projects,   for  example,   routinely  dewater   stream                                                                    
     segments  according to  the evidence  in  our case  and                                                                    
     divert streams, and because of  the great prevalence of                                                                    
     streams in  Alaska, some amount  of stream  location is                                                                    
     typically necessary in order  to build roads, buildings                                                                    
     and  other  facilities   that  large-scale  development                                                                    
     projects require, and in  Alaska highway projects often                                                                    
     parallel  streams  and  rivers that  sometimes  require                                                                    
     relocation to  make sure that  the highway  will remain                                                                    
     intact  as  a road.  Relocating  a  stream will  always                                                                    
     adversely affect the fish habitat  where the stream was                                                                    
     once located and where a  building or a road is located                                                                    
1:42:16 PM                                                                                                                    
MS. GRACE continued as follows:                                                                                                 
     Another  provision  that  creates an  appropriation  by                                                                    
     prohibiting  the  use  of anadromous  fish  habitat  is                                                                    
     proposed AS 16.05.867(b), which  is found in section 2;                                                                    
     this section states that when  issuing a permit, Alaska                                                                    
     Department of  Fish and Game  (ADF&G) shall  ensure the                                                                    
     proper  protection   of  anadromous  fish   habitat  by                                                                    
     maintaining  seven-habitat-protection standards,  these                                                                    
     include  maintaining instream  flows, passage  of fish,                                                                    
     and  bank   stability.  The  bill  requires   that  the                                                                    
     commissioner  must  ensure  that  these  standards  are                                                                    
     maintained when  issuing a permit and  it requires that                                                                    
     all  duties  carried  out under  the  chapter  must  be                                                                    
     consistent    with    those    standards,    and    the                                                                    
     commissioner's failure  to follow these standards  is a                                                                    
     Class  A  misdemeanor  under this  bill;  for  example,                                                                    
     permits  cannot be  granted  for  large hydro  projects                                                                    
     because  AS 16.05.867(b)(2)  requires that  an activity                                                                    
     maintain  instream  flow,  the duration  of  flow,  and                                                                    
     natural and seasonal flow regimes.                                                                                         
     In short, certification of Ballot  Measure 1 was denied                                                                    
     because the  initiative would preclude certain  uses of                                                                    
     anadromous-fish  habits  and  thus  would  deprive  the                                                                    
     Legislature of its authority to  decide how to allocate                                                                    
     fish  habitat  among  competing uses.  This  is  not  a                                                                    
     policy decision, it does not  matter to the Division of                                                                    
     Elections whether  anyone thinks  this initiative  is a                                                                    
     good idea or  bad idea, the only  question for purposes                                                                    
     of  certification and  the only  issue  in the  ongoing                                                                    
     litigation   is  whether   the   initiative  makes   an                                                                    
     appropriation and  based on  Alaska Supreme  Court case                                                                    
     law we think that it does.                                                                                                 
1:44:05 PM                                                                                                                    
She continued as follows:                                                                                                       
     As  a  result  of  the  denial  of  certification,  the                                                                    
     sponsors filed  suit in September of  2017, three weeks                                                                    
     later the  Superior Court ruled in  the sponsor's favor                                                                    
     and  ordered the  lieutenant  governor  to prepare  the                                                                    
     booklets to  allow the  sponsors to  gather signatures.                                                                    
     The sponsors then got the  signatures needed to get the                                                                    
     initiative on the general  election ballot in November.                                                                    
     Meanwhile,  the  Division  of  Elections  appealed  the                                                                    
     Superior  Court decision  to the  Alaska Supreme  Court                                                                    
     which held oral argument in  April. The argument in the                                                                    
     Supreme  Court  was  not   only  about  whether  Ballot                                                                    
     Measure 1  makes an appropriation, parties  also argued                                                                    
     about severability.                                                                                                        
     The Alaska Supreme Court will  allow an initiative that                                                                    
     makes an appropriation  to appear on the  ballot if the                                                                    
     court  can sever  unconstitutional  provisions and  the                                                                    
     remaining bill  meets a three-part  test. The  test is:                                                                    
     first,  standing alone  the remainder  of the  proposed                                                                    
     bill can  be given  legal effect; second,  deleting the                                                                    
     impermissible part of the  bill would not substantially                                                                    
     change the  spirit of the measure;  third, it's evident                                                                    
     from the  content of the measure  and the circumstances                                                                    
     surrounding  its proposal  that  the  sponsors and  the                                                                    
     petition subscribers would prefer  the measure to stand                                                                    
     as  altered  rather  than  to  be  invalidated  in  its                                                                    
     The state argued  that eliminating the unconstitutional                                                                    
     provisions  of Ballot  Measure 1  would delete  all the                                                                    
     substantive standards  in the  bill and all  that would                                                                    
     be left  would be the procedural  requirements and that                                                                    
     this would substantially change  the spirit of the bill                                                                    
     and  thus it  would not  sufficiently reflect  what the                                                                    
     petition  signers  had approved  and  thus  it was  not                                                                    
     evident that they  would prefer that the  bill go ahead                                                                    
     as altered.  The sponsors argued that  no severance was                                                                    
     necessary because  their position is that  there are no                                                                    
     unconstitutional provisions  but that if the  bill were                                                                    
     severed it would still meet that three-part test.                                                                          
     The  possibility that  the court  might sever  parts of                                                                    
     Ballot Measure  1 means that  there's a whole  range of                                                                    
     possible  outcomes  of  the  litigation  so  that  it's                                                                    
     difficult  to  say with  any  certainty  what the  bill                                                                    
     might look  like if  it goes on  the ballot.  The court                                                                    
     could uphold the initiative in  its entirety, the court                                                                    
     could  strike the  initiative in  its  entirety, or  by                                                                    
     severing  certain provisions  it could  order one  of a                                                                    
     number of  variations between  those two  extremes. For                                                                    
     this reason,  the state asked  the court if  it's going                                                                    
     to sever any provisions to  issue a decision at least a                                                                    
     few days  before the ballot  printing deadline  for the                                                                    
     general  election to  September 5,  so the  Division of                                                                    
     Elections can review the new  draft and write a summary                                                                    
     to  appear  on the  ballot.  The  court could  issue  a                                                                    
     decision  sooner than  September, but  we don't  expect                                                                    
     that it's going to wait until after September 5.                                                                           
CHAIR MEYER  thanked Ms. Grace  for explaining the  initiative to                                                               
the best of her abilities  based upon the circumstances. He noted                                                               
that  Ms.  Grace answered  one  of  his questions  regarding  the                                                               
prospect of a ruling to occur.                                                                                                  
1:47:51 PM                                                                                                                    
CHAIR MEYER recognized Representative Birch for attending the                                                                   
committee meeting.                                                                                                              
SENATOR COGHILL asked Ms. Grace to summarize the three-part                                                                     
MS. GRACE reviewed the three-part test as follows:                                                                              
     The first part  is that standing alone  after the court                                                                    
     deletes  unconstitutional  provisions,  standing  alone                                                                    
     the remainder of  the proposed bill can  be given legal                                                                    
     effect.  Secondly, deleting  the impermissible  part of                                                                    
     the bill  would not substantially change  the spirit of                                                                    
     the measure.  Three, it's evident  from the  content of                                                                    
     the  measure  and  the  circumstances  surrounding  its                                                                    
     proposal  that the  subscribers, the  sponsors and  the                                                                    
     petition subscribers  prefer that  it stand  as altered                                                                    
     rather than being struck entirely.                                                                                         
1:49:05 PM                                                                                                                    
SENATOR GIESSEL referenced section 8 and noted that the term in                                                                 
the section appears in AS 16.05.889(a) as follows:                                                                              
     Within 30  days after  the date  of a  determination of                                                                    
     the    commissioner   under    AS   16.05.871(e),    AS                                                                    
     16.05.875(d) or  (d), AS 16.05.883, AS  16.05.884(d) or                                                                    
     (f),  or AS  16.05.885(d),  any  interested person  may                                                                    
     request   that   the    commissioner   reconsider   the                                                                    
     determination.  A request  for reconsideration  must be                                                                    
     in writing.                                                                                                                
SENATOR GIESSEL asked  what the definition is  of "any interested                                                               
person."  She inquired  if  "any interested  person"  could be  a                                                               
Canadian or  an individual  that resides in  Iowa who  just feels                                                               
like asking for a reconsideration.                                                                                              
MS. GRACE answered  that "any interested person"  was not defined                                                               
in the  bill. She  said she thought  other statutes  have similar                                                               
language  and perhaps  one of  the other  agencies in  attendance                                                               
could  address previous  case  law. She  opined  that the  Alaska                                                               
Supreme Court tends to be broad  minded and Ballot Measure 1 is a                                                               
bill that is intended to  preserve fish habitat. She continued as                                                               
     I think  that citizen who  felt that granting  a permit                                                                    
     was improper under the law  would be allowed to appeal,                                                                    
     but that would be open to interpretation by the court.                                                                     
1:50:36 PM                                                                                                                    
SENATOR GIESSEL asked if the  initiative was not prioritizing one                                                               
resource over  multitudes of others.  She inquired if  the Alaska                                                               
Supreme Court was wrestling over the same question.                                                                             
MS. GRACE replied as follows:                                                                                                   
     That's essentially the core of  it, in other words, the                                                                    
     bill takes  away the discretion  of the  Legislature as                                                                    
     delegated to the Department of  Fish and Game to choose                                                                    
     to use anadromous fish habitat  for some purposes which                                                                    
     generally  is going  to be  large development  projects                                                                    
     because  if the  habitat is  not permanently  preserved                                                                    
     the  bill prohibits  it; for  example, if  a road  or a                                                                    
     pipeline   or  a   tailings   facility   is  going   to                                                                    
     permanently  displace that  habitat then  that's taking                                                                    
     away,  then  that's  not permitted,  it  cannot  get  a                                                                    
     permit  and  that  takes away  the  discretion  of  the                                                                    
     agency and  therefore the Legislature to  decide to use                                                                    
     the  habitat  for that  purpose,  that's  in fact  what                                                                    
     makes it  an appropriation and what  therefore makes it                                                                    
     an improper subject for an initiative.                                                                                     
CHAIR  MEYER asked  Ms.  Grace to  address  the ballot  measure's                                                               
impact on hydro projects as follows:                                                                                            
     You had mentioned that this  could have a big impact on                                                                    
     hydro projects  and certainly  we have  a lot  of hydro                                                                    
     already  in the  State  of Alaska.  Are those  projects                                                                    
     grandfathered  or would  they have  to fall  under this                                                                    
     initiative if it passed?                                                                                                   
MS. GRACE answered as follows:                                                                                                  
     It   grandfathers   permits,  authorizations,   license                                                                    
     approvals  for  activities  adversely  effected  on  or                                                                    
     before the  effective date of the  act until expiration                                                                    
     or  termination  of  the  user's  permit  authorization                                                                    
     license  or approval.  I don't  actually know  what the                                                                    
     permitting requirements are for  hydro projects, I know                                                                    
     that a  new hydro  project would be  unlikely to  get a                                                                    
     permit under the  standards in this bill.  I don't know                                                                    
     if for  an existing permit  if the permits  ever expire                                                                    
     or whether  it might  be required to  get a  new permit                                                                    
     for some kind of additional building.                                                                                      
1:53:27 PM                                                                                                                    
CHAIR MEYER asked to verify that a hydro project like in Kodiak                                                                 
or even Bradley Lake would be almost impossible to get permitted                                                                
under the initiative.                                                                                                           
MS. GRACE answered as follows:                                                                                                  
     The  affidavits  in our  case  said  that larger  hydro                                                                    
     projects would  not be able  to meet the  standard, I'm                                                                    
     not  entirely  sure how  large  those  are and  exactly                                                                    
     where that line is drawn.                                                                                                  
CHAIR  MEYER   asked  how  the   initiative  pertains   to  other                                                               
developments. He  inquired if Prudhoe  Bay and  Kuparuk oilfields                                                               
would be able to come online  if Ballot Measure 1 had been passed                                                               
when  the  oilfields came  online.  He  asked if  the  previously                                                               
mentioned oilfields would be grandfathered as well.                                                                             
MS. GRACE answered as follows:                                                                                                  
     The  affidavits  that the  state  got  from our  agency                                                                    
     officials  said that  Prudhoe Bay  would not  have been                                                                    
     built  with this  initiative. Again,  whether they  are                                                                    
     grandfathered depends on what  permits would expire and                                                                    
     when they would  need new permits; for  example, one of                                                                    
     our affidavits said  that the Red Dog Mine  is going to                                                                    
     need a new  tailings facility and so even  though it is                                                                    
     an  existing  project  a new  tailings  facility  would                                                                    
     require  a  new permit  to  the  extent that  it  would                                                                    
     displace  anadromous  fish  habitat and  would  not  be                                                                    
     grandfathered under this bill.                                                                                             
1:54:58 PM                                                                                                                    
CHAIR  MEYER  noted that  Prudhoe  Bay  and Kuparuk  are  private                                                               
developments that  provides the state  with most of  its revenue.                                                               
He asked to  address state projects like the  new Seward Highway.                                                               
He inquired  if Ballot Measure  1 would  allow major roads  to be                                                               
MS.  GRACE answered  that she  could not  speak to  Chair Meyer's                                                               
inquiry  because  she  did  not  know  what  would  be  entailed;                                                               
however, she opined that it was possible.                                                                                       
CHAIR MEYER noted that the  commissioner of the Alaska Department                                                               
of Transportation  and Public  Facilities (DOT&PF)  could address                                                               
his question.                                                                                                                   
SENATOR COGHILL  addressed section 5, AS  16.05.877, "Significant                                                               
adverse effects," subsection (a):                                                                                               
     The   commissioner  shall   find   the  potential   for                                                                    
     significant  adverse effects  where  the activity  may,                                                                    
     singly  or  in  combination  with  other  factors:  (1)                                                                    
     impair or degrade  any habitat characteristic protected                                                                    
     under AS 16.05.867.                                                                                                        
He  asked  if  any  habitat  characteristic  protected  under  AS                                                               
16.05.867 would be a source of litigation.                                                                                      
MS.  GRACE answered  that  it may  well be.  She  noted that  the                                                               
section  Senator  Coghill  referenced  lists  habitat  protection                                                               
standards that  the commissioner is  required to respect  when he                                                               
or  she  issues  a  permit   and  that  could  also  subject  the                                                               
commissioner to criminal penalties if he or she fails to do so.                                                                 
SENATOR COGHILL  noted that the section  he previously referenced                                                               
talks about  the aquatic habitat  diversity. He asked  to confirm                                                               
that  diversity could  be a  primary topic  of discussion  if any                                                               
impact occurred on that characteristic.                                                                                         
1:57:36 PM                                                                                                                    
MS.  GRACE  confirmed that  the  scenario  Senator Coghill  noted                                                               
could be a topic of litigation.                                                                                                 
SENATOR COGHILL replied as follows:                                                                                             
     That  would stand  true for  all three  characteristics                                                                    
     and  the  eight  qualifications  under  (b).  What  I'm                                                                    
     looking for  is the fact that  it looks to me  like the                                                                    
     initiative is  written in  such a  way that  the courts                                                                    
     would be forced  to have to decide many,  many of these                                                                    
     questions. So, any habitat  characteristic would be the                                                                    
     source  of   discussion  under  those  at   least  nine                                                                    
1:58:13 PM                                                                                                                    
MS. GRACE answered that Senator Coghill's question was certainly                                                                
SENATOR COGHILL addressed section 5 as follows:                                                                                 
     If  you look  in  section  5, once  again  it's in  the                                                                    
     additional criteria,  so additional criteria  beyond on                                                                    
     those would  then be  something that  would have  to be                                                                    
MS. GRACE answered as follows:                                                                                                  
     To  the extent  that Fish  and Game  drafts regulations                                                                    
     and those could also be subject to challenge.                                                                              
SENATOR COGHILL replied as follows:                                                                                             
     I think one  of the reasons I'm asking  these things is                                                                    
     because if  we had  a bill  like this  in front  of the                                                                    
     Legislature, those  are the kinds  of things  you would                                                                    
     try to  get some understanding  of, "What did  you mean                                                                    
     when you said  that?" way before you signed  off on it.                                                                    
     I find  those very, very  broad in  such a way  that my                                                                    
     expectation is that it could  grind to a halt anything,                                                                    
     not  withstanding the  constitutional  issue, just  the                                                                    
     procedural issue itself  would then in my  view cause a                                                                    
     constitutional  tension on,  "Could the  state actually                                                                    
     move forward?"  So, those are  at least the  two points                                                                    
     that I wanted to bring up immediately.                                                                                     
1:59:27 PM                                                                                                                    
CHAIR MEYER concurred with Senator Coghill. He noted that                                                                       
Senator Coghill serves as chairman on the Senate Judiciary                                                                      
SENATOR WILSON addressed section  3 regarding possible impact and                                                               
asked Ms. Grace  what the definition was  for "anadromous waters"                                                               
and  how far  does "anadromous  waters"  go out.  He inquired  if                                                               
"anadromous  waters"  would  cover  all of  Resurrection  Bay  or                                                               
Prince William Sound.                                                                                                           
MS.  GRACE  replied  that  the  definition  was  very  broad  and                                                               
essentially   included  lands   or  waters   that  could   impact                                                               
anadromous fish,  even indirectly.  She conceded that  the answer                                                               
was potentially "yes."                                                                                                          
SENATOR  WILSON   asked  to  confirm   that  there  is   no  mile                                                               
designation for  the "anadromous fish" definition.  He voiced his                                                               
concern  that the  initiative could  impact docks,  cruise ships,                                                               
harbor repair, new liquid natural  gas (LNG) docks in Nikiski and                                                               
extending pilings in the Mat-Su Borough.                                                                                        
2:01:01 PM                                                                                                                    
MS. GRACE answered that Senator  Wilson's statement was certainly                                                               
a possibility. She  specified that the definition  applies to the                                                               
     Lands or waters that  contribute directly or indirectly                                                                    
     to the  spawning, rearing, migration  or over-wintering                                                                    
     of anadromous fish.                                                                                                        
SENATOR  WILSON asked  to confirm  that  offshore drilling  would                                                               
also be impacted as well.                                                                                                       
MS. GRACE answered  that is was possible someone  could make that                                                               
SENATOR  COGHILL  noted  that  two military  bases  were  in  the                                                               
Fairbanks area. He pointed out  that the entire Fairbanks area is                                                               
considered a floodplain. He continued as follows:                                                                               
     If it was intermittent which  is the case in Fairbanks,                                                                    
     I  have lived  through several  floods in  the Interior                                                                    
     and  they certainly  impact the  whole  community in  a                                                                    
     variety  of ways,  but  that water  body  in that  town                                                                    
     would then  probably be  considered under  this chapter                                                                    
     as  an anadromous  fish habitat,  if I  understand this                                                                    
     definition. Would you see it the same way?                                                                                 
MS. GRACE replied as follows:                                                                                                   
     My reading  of this definition  is that it  was written                                                                    
     to be as broad as it possibly could be.                                                                                    
SENATOR  COGHILL  opined  that   Fairbanks,  whether  building  a                                                               
toolshed  or  building for  an  F-35  aircraft, would  be  hugely                                                               
CHAIR  MEYER noted  that Senator  Giessel  had sent  a letter  of                                                               
inquiry to a mayor in her district on a similar subject.                                                                        
SENATOR  GIESSEL answered  that  she did  and  detailed that  she                                                               
addressed the impact  of fire service in the  Hillside area where                                                               
large tankers  access water  bodies and  streams to  fight fires.                                                               
She  remarked that  getting a  permit  to withdraw  water as  she                                                               
described could be complicated or possibly be denied.                                                                           
2:03:27 PM                                                                                                                    
MS. GRACE answered as follows:                                                                                                  
     The bill prohibits  a permit for an  activity that will                                                                    
     withdraw  water  from  anadromous fish  habitat  in  an                                                                    
     amount that  will adversely affect  the habitat  of the                                                                    
     fish or  the wildlife,  so I guess  it would  depend on                                                                    
     how much was being withdrawn.                                                                                              
SENATOR GIESSEL  asked Ms.  Grace to  address her  statement that                                                               
the  commissioner could  be liable  for criminal  penalties under                                                               
Ballot Measure 1.                                                                                                               
MS. GRACE replied as follows:                                                                                                   
     The bill makes failing to  follow any of the provisions                                                                    
     in this  bill a  Class A Misdemeanor,  and some  of the                                                                    
     provisions    including   these    habitat   protection                                                                    
     standards and  the standards for granting  or denying a                                                                    
     permit can only be done by the commissioner.                                                                               
2:05:24 PM                                                                                                                    
SAM  COTTEN, Commissioner,  Alaska Department  of Fish  and Game,                                                               
Juneau, Alaska, addressed  the impact of Ballot Measure  1 on the                                                               
department as follows:                                                                                                          
     The  Alaska  Department of  Fish  and  Game (ADF&G)  is                                                                    
     responsible    for    issuing   Title    16    permits;                                                                    
     specifically,  our Division  of Habitat  takes care  of                                                                    
     that. Our primary  purpose is to protect  fish and game                                                                    
     resources  from  any adverse  impacts  as  a result  of                                                                    
     development.  Ron [Benkert]  will be  able to  describe                                                                    
     some of the examples  of permits like stream crossings,                                                                    
     pipelines  and  anything  that  might  impact  habitat.                                                                    
     We've been  doing this for  a lot of years  and they've                                                                    
     had  a  lot  of  big   projects  to  benefit  from  the                                                                    
     If  the  initiative were  to  pass  it would  certainly                                                                    
     change the  way we approach these  permits, obviously a                                                                    
     lot  of  rules would  change  and  so  we are  able  to                                                                    
     discuss some of  that and hopefully respond  to some of                                                                    
     your questions on  those kinds of changes.  In order to                                                                    
     comply with  the new statutes, obviously  we would have                                                                    
     to   do  a   new  regulatory   exercise,  put   in  new                                                                    
     regulations, that would take  some time, it's uncertain                                                                    
     now  and it  would cost  some money.  I think  our cost                                                                    
     estimate that  we submitted to the  Legislature earlier                                                                    
     was I  think about $1.3 million  a year for at  least 5                                                                    
     years,  an additional  expense that  we  would have  to                                                                    
     Ron Benkert,  you may already  know, he's  our regional                                                                    
     supervisor   for   the   habitat  divisions   for   the                                                                    
     Southcentral region,  he has  a lot of  experience with                                                                    
     the  Pebble prospect,  the Chulitna  coal project,  the                                                                    
     Susitna  project,  Port  MacKenzie rail  extension,  he                                                                    
     also  represents the  department with  what's known  as                                                                    
     the  LMPT,  Large  Mine Permitting  Team,  so  in  that                                                                    
     regard  he  works with  other  departments  in a  joint                                                                    
     effort.  Internally,  Ron  also works  with  our  other                                                                    
     divisional  folks   with  the  Division   of  Wildlife,                                                                    
     Division of Commercial  Fish, Division of Sportfishing,                                                                    
     Division   of   Subsistence,   so  we   take   a   very                                                                    
     comprehensive  approach  to   it  internally  and  then                                                                    
     within state government.                                                                                                   
2:08:07 PM                                                                                                                    
RON  BENKERT,  Fish  & Game  Coordinator,  Division  of  Habitat,                                                               
Alaska  Department of  Fish and  Game, Anchorage,  Alaska, stated                                                               
that his  intent was  to provide  a brief  background on  how the                                                               
division was  currently operating and then  to address initiative                                                               
concerns.  He  said  his presentation  addresses  the  division's                                                               
perception in  how it currently  operates and  potential changes.                                                               
He said he  would also address projects that  probably would have                                                               
impact associated with Ballot Measure 1.                                                                                        
MR.  BENKERT   commenced  his  presentation  and   addressed  the                                                               
division's mission statement as follows:                                                                                        
     Habitat's mission is to protect Alaska's valuable fish                                                                     
     and wildlife resources and their habitats as Alaska's                                                                      
     population and economy continue to expand.                                                                                 
He said  the Habitat Division  does a balancing act.  He asserted                                                               
that the  division understands that there  are acceptable impacts                                                               
to  fish  habitat  because  the state  must  build  roads,  cross                                                               
streams and extract resources.                                                                                                  
He  explained that  the  division has  a  mitigation sequence  by                                                               
working with project  applicants to minimize any  kind of impacts                                                               
that could  potentially impact  fish habitat.  He noted  that the                                                               
division is working with the  Alaska Department of Transportation                                                               
and   Public  Facilities   (DOT&PF)  on   replacing  fish-habitat                                                               
culverts. He added that the  division works with DOT&PF and local                                                               
entities  to provide  good designs  for fish  pipes that  provide                                                               
passage for fish.                                                                                                               
2:10:21 PM                                                                                                                    
He addressed "Workload Priorities" as follows:                                                                                  
        • Title 16 permitting and enforcement;                                                                                  
      • Field work: research, inspections, fish surveys;                                                                        
        • Large projects of importance to the state;                                                                            
        • Forest Resources and Practices Act;                                                                                   
        • Special Area permitting and planning;                                                                                 
        • Summation:                                                                                                            
             o Habitat's   top   workload   priorities   are                                                                    
               focused on the  anadromous waters catalog and                                                                    
               our  Title 16  permitting authority.  We also                                                                    
               participate  in  large  project  reviews  and                                                                    
               reviews  of  forest  practices on  state  and                                                                    
               private  land. We  also conduct  Special Area                                                                    
               planning  and  research  that helps  us  make                                                                    
               sound permitting decisions.                                                                                      
CHAIR MEYER asked that Mr.  Benkert address how Ballot Measure 1,                                                               
if passed, would impact the division.                                                                                           
MR.   BENKERT   addressed   "ADF&G   Statutory   Authority   Fish                                                               
Protection" as follows:                                                                                                         
        • The Fishway Act:                                                                                                      
             o AS 16.05.841.                                                                                                    
        • Anadromous Fish Act:                                                                                                  
             o AS 16.05.871.                                                                                                    
        • Special Area Planning & Permitting:                                                                                   
             o 5 AAC 95.700.                                                                                                    
        • Summation:                                                                                                            
             o Alaska's early fish protection laws have                                                                         
               helped  us avoid  many  of  the major  issues                                                                    
               related to  fish passage and habitat  loss or                                                                    
               degradation seen  in many areas of  the Lower                                                                    
               48.  As   early  as  1919,   the  territorial                                                                    
               government  could require  fishways prior  to                                                                    
               construction of  dams or  other obstructions.                                                                    
               By 1959,  the Legislature enacted a  Fish and                                                                    
               Game Code included  statutory protections for                                                                    
              fish passage and later fish habitat.                                                                              
2:13:04 PM                                                                                                                    
MR. BENKERT addressed the "Fishway Act (.841)" as follows:                                                                      
        • Requires that any obstruction built across fish-                                                                      
         bearing waters will provide for fish passage.                                                                          
        • Jurisdiction:                                                                                                         
             o Applies    to   all    fish-bearing   streams                                                                    
               (resident  and   anadromous)  and   all  fish                                                                    
             o Requires long-term commitment to operation                                                                       
               and maintenance.                                                                                                 
             o Applies to fish passage only.                                                                                    
        • Activities not covered by .841:                                                                                       
             o Projects that do not have the potential to                                                                       
               block passage:                                                                                                   
                  square4 Docks, streambank protection, motorized                                                               
                    stream crossings, etc.                                                                                      
        • Summation:                                                                                                            
             o The primary strength of the Fishway Act is                                                                       
               that it  requires passage for all  species of                                                                    
               fish  and,  if  an   obstruction  such  as  a                                                                    
               culvert is  authorized, the structure  has to                                                                    
               be maintained  in the long-term,  rather than                                                                    
               just built and left alone.                                                                                       
He addressed "Anadromous Fish Act (.871)" as follows:                                                                           
        • Jurisdiction:                                                                                                         
             o Applies to any activity.                                                                                         
             o Applies to any life stage.                                                                                       
             o Restricted to ordinary high-water mark.                                                                          
        • Application of (.871):                                                                                                
             o Activity occurring below OHW with some                                                                           
             o Waterbody must be in AWC.                                                                                        
             o Freshwater only down to low tide in the                                                                          
               marine environment.                                                                                              
        • Summation:                                                                                                            
             o Broad in scope and applies to nearly any in-                                                                     
               water  activity,   protection  to   all  life                                                                    
               stages of  anadromous fish. For  fish passage                                                                    
               projects,  this statute  allows us  to review                                                                    
               designs  and  make  decisions based  on  more                                                                    
               than  just  fish  passage.  We  can  consider                                                                    
               impacts  to habitat  or  stream function  and                                                                    
               include    requirements     for    streambank                                                                    
               restoration  and revegetation,  and of  a new                                                                    
2:16:16 PM                                                                                                                    
SENATOR WILSON asked to confirm that Mr. Benkert's presentation                                                                 
focuses on current practices and not on changes from the                                                                        
MR. BENKERT answered yes. He noted that the first portion of his                                                                
presentation addressed current operations and the remainder                                                                     
would focus on changes from the initiative.                                                                                     
He addressed "Activities That Typically Require Fish Habitat                                                                    
Permits" as follows:                                                                                                            
   • Culvert, bridge and ford installation, maintenance, and                                                                    
   • Stream crossings: vehicles, pipelines, power lines;                                                                        
   • Streambank repair and construction;                                                                                        
   • Stream diversions or removals;                                                                                             
 • Water withdrawals: road work, drilling, mining, ice roads;                                                                   
   • Material extraction sites;                                                                                                 
   • Dam construction and maintenance;                                                                                          
   • Run of the river hydro projects (no dam);                                                                                  
   • Research projects: fish weir installation and operation;                                                                   
   • Dock and boat ramp construction;                                                                                           
   • Blasting.                                                                                                                  
2:19:33 PM                                                                                                                    
MR. BENKERT  addressed "New Duties  and Functions  the Initiative                                                               
Would Require Habitat to Implement" as follows:                                                                                 
   • Presume that naturally occurring connected water bodies and                                                                
     adjacent   riparian   areas    are   anadromous,   currently                                                               
     jurisdiction ends at the ordinary high-water mark of                                                                       
     documented anadromy.                                                                                                       
   • Require site-specific determinations to determine a water                                                                  
     body is not anadromous fish.                                                                                               
He referenced  a map  which showed  locations where  the division                                                               
has done  sampling. He  noted that  the proposed  Arctic National                                                               
Wildlife Refuge (ANWR)  project would require the  division to do                                                               
sampling during the current season.                                                                                             
SENATOR  EGAN asked  how an  anadromous  stream is  added to  the                                                               
division's catalog.                                                                                                             
MR. BENKERT  explained that  the division has  a process  where a                                                               
team  in  the  Sport  Fish   Division  receives  nominations.  He                                                               
detailed that  a nomination form  is submitted by a  biologist or                                                               
whoever has identified additional fish  habitat that could be put                                                               
into the  division's catalog. He  explained that  nominations are                                                               
reviewed  several  times including  an  area  biologist who  must                                                               
signoff. He  summarized that  new segments  go to  the lieutenant                                                               
governor  to  sign into  law  every  spring.  He noted  that  the                                                               
process has  a lot  of steps  to ensure what  is being  looked at                                                               
should be included in the catalog.                                                                                              
2:22:55 PM                                                                                                                    
SENATOR EGAN  asked if  fieldwork is done  for every  request for                                                               
catalog inclusion.                                                                                                              
MR. BENKERT answered  that the division has a team  that goes out                                                               
annually on what  is called the Alaska  Freshwater Fish Inventory                                                               
SENATOR EGAN asked if Mr. Benkert  knew what the average cost was                                                               
for each request to add to the anadromous catalog.                                                                              
MR. BENKERT answered that he did not know.                                                                                      
CHAIR  MEYER  asked  that  the   information  that  Senator  Egan                                                               
requested be provided to all committee members at a later date.                                                                 
2:25:35 PM                                                                                                                    
MR. BENKERT addressed the division's additional responsibilities                                                                
as follows:                                                                                                                     
        • Develop bonding structure and requirements;                                                                           
        • Develop  regulations    associated   with    the                                                                      
        • Develop a bail schedule for bailable citations as                                                                     
          noted in the initiative;                                                                                              
        • Implement civil penalties in addition to criminal                                                                     
          penalties as noted in the initiative;                                                                                 
        • Extend jurisdiction into the riparian areas                                                                           
          adjacent to anadromous streams as noted in the                                                                        
          initiative for cross-jurisdictional issues;                                                                           
        • Respond to appeals on permit decisions;                                                                               
        • Restrict project mitigation to on-site only.                                                                          
He addressed public notices development for the following:                                                                      
   • Permits, applications and amendments;                                                                                      
   • General permits;                                                                                                           
   • Rescinding a permit;                                                                                                       
   • Any draft major anadromous fish habitat permit assessment,                                                                 
     and major fish habitat applications;                                                                                       
   • May require written  authorization for  an  individual  to                                                                 
     operate under a general permit.                                                                                            
2:28:40 PM                                                                                                                    
He addressed additional responsibilities in response to the                                                                     
initiative as follows:                                                                                                          
   • Determine whether a fish habitat permit is a major or minor                                                                
   • Respond to and address public input on major  fish habitat                                                                 
   • Collect fees equal  to  the  cost  of  service  for  major                                                                 
   • Determine if the  proposed activity  is  likely  to  cause                                                                 
     substantial damage to anadromous fish habitat.                                                                             
   • Determine if anadromous fish habitat  will  recover or  be                                                                 
     restored within a reasonable period of time.                                                                               
   • Specify in regulation all de minimus activities that do not                                                                
     require a permit and require a permit for all activities                                                                   
     not specified.                                                                                                             
CHAIR MEYER  asserted that  his focus  was on  the impact  to the                                                               
state. He  opined that the  additional duties and  services noted                                                               
by Mr. Benkert would be very costly.                                                                                            
MR.  BENKERT  concurred  with  Chair Meyer.  He  noted  that  the                                                               
division's cost estimate includes  additional personnel needed to                                                               
develop regulations and citations,  a program analyst, regulatory                                                               
specialists, and added  personnel to deal with  the workload from                                                               
all  the other  requirements  that  would be  the  result of  the                                                               
initiative's passage.  He agreed with Commissioner  Cotten that a                                                               
significant  impact  for  a  cost  perspective  would  occur,  an                                                               
estimated $1.3 million per year for at least 5 years.                                                                           
2:31:24 PM                                                                                                                    
He addressed "Initiative Impacts on Stakeholders" as follows:                                                                   
   • Increased time  and   cost   because   of  public   notice                                                                 
     requirements and determining whether anadromous fish are                                                                   
   • Public input into permitting process  could slow  down the                                                                 
   • Prohibitions contained in the initiative that would modify                                                                 
     or preclude the issuance of permits for certain activities.                                                                
   • Determine if bonding is required on major permits.                                                                         
   • Expense of conducting  site  specific  determinations  and                                                                 
     extensive data needs to prove anadromous fish are not                                                                      
     present, an expense borne by the applicants.                                                                               
He addressed "Specific Examples  of Initiative Implementation" as                                                               
   • New AS 16.05.867(a) states that an anadromous fish habitat                                                                 
     permit may not be granted for an activity that will cause                                                                  
     "substantial damage" to anadromous fish habitat.                                                                           
   • "Substantial damage" is defined as an activity inconsistent                                                                
     with restoring the habitat within a reasonable time to                                                                     
     support anadromous fish.                                                                                                   
   • Under this provision, larger hydro  projects/dams such  as                                                                 
     the Susitna Hydro Project which, by definition, change                                                                     
     flows and alter natural and seasonal flow regimes, may not                                                                 
     be permittable.                                                                                                            
He  noted that  defining  what "substantial  damage"  is will  be                                                               
required to codify regulation.                                                                                                  
2:33:35 PM                                                                                                                    
MR. BENKERT addressed "Additional Examples" as follows:                                                                         
   • New AS 16.05.887(a)(1) may prevent us from issuing permits                                                                 
     for   the  proposed   Donlin  Prospect   mine  because   two                                                               
     anadromous streams would  be eliminated permanently, causing                                                               
    substantial permanent damage to anadromous fish habitat.                                                                    
   • New AS 16.05.877(a)(6) states that an anadromous fish                                                                      
     habitat permit may not be  granted for an activity that will                                                               
     dewater and  relocate a  stream or  river if  the relocation                                                               
     does  not  provide  for  fish  passage  or  will  "adversely                                                               
     affect" anadromous habitat, fish, or wildlife.                                                                             
   • Major highway projects often parallel streams and rivers                                                                   
     and   often  require   extensive   erosion  control   and/or                                                               
     relocation to keep the highway intact and passable.                                                                        
   • These types of projects have an adverse effect on                                                                          
     anadromous  fish  habitat  and   could  potentially  not  be                                                               
He addressed "Conclusion" in his presentation as follows:                                                                       
   • Passage of the initiative would require, but is not limited                                                                
        o Hiring additional staff including habitat biologists,                                                                 
          an analyst programmer, and program technicians to                                                                     
          implement initiative components and handle additional                                                                 
        o A public education component may need to be developed                                                                 
          to inform the public of our new and expanded                                                                          
          jurisdictional authority.                                                                                             
        o The   division   anticipates    that   development   of                                                               
          regulations could take a significant effort.                                                                          
        o Implementation of any new regulations and criteria                                                                    
          would also take significant time and effort.                                                                          
2:36:23 PM                                                                                                                    
SENATOR GIESSEL asked if Mr. Benkert had a definition for "any                                                                  
interested person."                                                                                                             
MR. BENKERT answered no. He explained that the department would                                                                 
have to defer to the Alaska Department of Law for determining                                                                   
the definition.                                                                                                                 
SENATOR  GIESSEL referenced  subsistence and  addressed the  Fish                                                               
Resource  Monitor Map  regarding  "New Duties  and Functions  the                                                               
Initiative  Would  Require  Habitat   to  Implement."  She  noted                                                               
various  subsistence  communities  that will  drive  their  four-                                                               
wheelers  through  creeks.  She  pointed  out  that  Mr.  Benkert                                                               
mentioned  that pedestrian  fording in  creeks was  considered di                                                               
minimus. She asked what consideration  was given to the impact of                                                               
four-wheelers on an established hunting  trail and would a permit                                                               
be required.                                                                                                                    
MR. BENKERT answered as follows:                                                                                                
     If you are fording an  anadromous stream now you need a                                                                    
     permit  for it.  A lot  of  the thrust  of our  general                                                                    
     permits  we issue  to the  public is  just specifically                                                                    
     for  that  activity  when we  have  a  well-established                                                                    
     trail that  the public has  been using for  decades, we                                                                    
     try  to  identify those  areas  and  develop a  general                                                                    
     permit   to   authorize   that   activity   with   some                                                                    
     sideboards.   We  have   stipulations  in   there  that                                                                    
     basically  requires  them  to  ford  the  creek  in  an                                                                    
     appropriate  manner  to  minimize any  impacts  to  the                                                                    
     stream  bed or  banks. We  are continually  identifying                                                                    
     those, we are  always adding new general  permits as we                                                                    
     identify new  areas that could use  that, but currently                                                                    
     you still  are required to  come and get a  permit from                                                                    
     us if you are planning  on crossing with a four-wheeler                                                                    
     or pickup truck fording on an anadromous stream.                                                                           
2:38:08 PM                                                                                                                    
SENATOR GIESSEL addressed the Red Dog and Fort Knox mines as                                                                    
     A question now about two  large projects that exist now                                                                    
     and the  impact that  they had  on fish  resources. I'm                                                                    
     referring  to the  Red Dog  Mine, this  is a  zinc mine                                                                    
     that had  a natural leeching  of minerals into  Red Dog                                                                    
     Creek creating a sterile creek  actually because of all                                                                    
     of  the minerals  and actually  the  riparian edges  of                                                                    
     that  creek were  also devoid  of  vegetation. Then  we                                                                    
     have  Fort  Knox, Fish  Creek  right  below Fort  Knox;                                                                    
     again, the  area had been  damaged by  historic mining,                                                                    
     it was  restored by  the mine and  fish are  back, same                                                                    
     thing  happened  at  Red  Dog.   When  the  mine  began                                                                    
     operation,  the  water  was   purified,  and  the  fish                                                                    
     actually  came  back.  Is that  allowed  to  take  into                                                                    
     consideration under this  initiative, the potential for                                                                    
     actually  cleaning up  a  waterway  and restoring  fish                                                                    
MR.  BENKERT  replied that  Senator  Giessel's  points were  very                                                               
legitimate. He  asserted that  the Fort Knox  project has  done a                                                               
great  job of  providing on-site  mitigation by  transforming old                                                               
plaster mining operations into a  very productive wetland complex                                                               
for aquatic vegetation,  fish and wildlife. He said  Fort Knox is                                                               
an  example  of  how  to   have  compensatory  mitigation  offset                                                               
impacts. He  noted that  Fort Knox is  in a  resident fish-stream                                                               
area  that is  not  an  anadromous fish  habitat  but  is a  good                                                               
example of  offsetting impacts  to a  fish habitat.  He concurred                                                               
with  Senator Giessel  that Red  Dog  Creek was  a sterile  creek                                                               
during the  construction of the  Red Dog Mine. He  confirmed that                                                               
Red Dog Creek currently supports a  strong run of fish due to the                                                               
mine's  perpetual water  treatment. He  noted that  the mine  had                                                               
issues with  some of  their discharges but  pointed out  that the                                                               
water can  support fish  populations. He  disclosed that  Red Dog                                                               
Creek could  not support  fish populations prior  to the  Red Dog                                                               
He  addressed  Senator  Giessel's question  regarding  anadromous                                                               
stream mitigation as follows:                                                                                                   
     The  way we  read  the initiative,  even  if you  could                                                                    
     provide  onsite compensatory  mitigation, just  because                                                                    
     of the statement  that if you actually had  to remove a                                                                    
     piece of anadromous stream  that would probably trigger                                                                    
     denial  of  the  permit  because   it  says  you  can't                                                                    
     permanently remove or alter  an anadromous fish stream;                                                                    
     I don't  see the connection between  that statement and                                                                    
     providing appropriate  on-site compensatory mitigation,                                                                    
     I  think  the  compensatory mitigation  part  could  be                                                                    
     trumped by some of those  statements in the other parts                                                                    
     of the initiative.                                                                                                         
2:41:14 PM                                                                                                                    
SENATOR GIESSEL  asked what industry, company  or agency, applies                                                               
for most of the fish-habitat permits that the division grants.                                                                  
MR.  BENKERT  answered  that the  division's  largest  client  is                                                               
DOT&PF. He added  that the division works closely  with the North                                                               
Slope producers who have a lot of permits in play.                                                                              
SENATOR GIESSEL  asked if  the division has  ever issued  a fish-                                                               
habitat permit that it regretted.  She inquired what the division                                                               
would do in a situation that she previously described.                                                                          
MR. BENKERT answered that the  division has conducted enforcement                                                               
actions with  a cease-and-desist due  to noncompliance  of permit                                                               
provisions  and  stipulations.  He noted  that  noncompliance  in                                                               
egregious situations may result in a Class A Misdemeanor.                                                                       
SENATOR WILSON asked  if there are gaps in the  current law where                                                               
the initiative  would make  the division's  day-to-day operations                                                               
easier or better. He noted  that Mr. Benkert previously addressed                                                               
penalties and asked if he felt  that current laws were good as is                                                               
or does the initiative bolster current laws.                                                                                    
2:43:55 PM                                                                                                                    
COMMISSIONER COTTEN commented as follows:                                                                                       
     As  the  chairman  noted before  the  meeting  started,                                                                    
     we're really  not supposed to  voice our opinion  as to                                                                    
     the  nature  or the  preference,  pro  or con,  on  the                                                                    
     initiative, it's an advocacy position.                                                                                     
SENATOR WILSON  asked if Commissioner Cotten  believed that there                                                               
were gaps in the current law that needed to be repaired.                                                                        
COMMISSIONER  COTTEN replied  that  "statutory  section 871"  was                                                               
addressed in  the last legislative session  where rewrite efforts                                                               
were made regarding adequacy. He  said the department was dealing                                                               
with  the rewrite  and  noted  that there  has  been success  but                                                               
conceded  that critics  have suggested  that it  could have  been                                                               
more restrictive.                                                                                                               
SENATOR COGHILL  said there  were two things  that he  noticed in                                                               
the  initiative: description  of  "anadromous  fish habitat"  and                                                               
"significant adverse effects." He continued as follows:                                                                         
     In section  3 under the "anadromous  fish habitat," the                                                                    
     adjacent riparian  areas which  you said would  be kind                                                                    
     of  a new  authority, it  says that  it may  contribute                                                                    
     indirectly  to the  spawning,  rearing, migration.  How                                                                    
     would  you  see  that  in   kind  of  the  intermittent                                                                    
     seasonal-water runoff?  Would that  be just  a spawning                                                                    
     area only  or would  that be  a vegetation  runoff that                                                                    
     might hinder egg spawning or  have a biomass that would                                                                    
     be beneficial  to the fish?  How would you see  that as                                                                    
     an adjacent to  the spawning area? That's  in section 3                                                                    
     and  it's   under  subsection  (f)  in   this  chapter,                                                                    
     "anadromous  fish habitat  means," and  then they  talk                                                                    
     about  "naturally  occurring  permanently  intermittent                                                                    
     seasonal  water   body,"  but  they  also   talk  about                                                                    
     indirectly   affecting   spawning,   migration,   over-                                                                    
     wintering  of   this  anadromous   fish,  I   was  just                                                                    
     wondering; would it be runoff?  Would it be the fact of                                                                    
     egg hatching?  Would it be  movement of mud  that might                                                                    
     hinder  that? How  would you  see that  in an  indirect                                                                    
     impact on those fishes from an adjacent water body?                                                                        
2:46:30 PM                                                                                                                    
MR. BENKERT answered as follows:                                                                                                
     I  think that's  correct. If  you had  some kind  of an                                                                    
     operation  that   was  discharging  large   amounts  of                                                                    
     sediment from  an upland location into  the creek, that                                                                    
     would  probably also  now fall  into our  jurisdiction.                                                                    
     There's  other jurisdictions  that are  already dealing                                                                    
     with  that, DEC  has  programs  that prevents  inputted                                                                    
     sediments,   there's   [inaudible]   water   prevention                                                                    
     program, also requires  them to try to  ensure that the                                                                    
     inputted  sediment  doesn't   come  from  uplands  into                                                                    
     anadromous   water  bodies;   again,   that  would   be                                                                    
     something that we would have  to further define if this                                                                    
     was  to move  forward  in regulation  or  some kind  of                                                                    
     guidelines  that would  basically  further define  what                                                                    
     exactly  we   would  need  to  do   to  implement  that                                                                    
     particular section.                                                                                                        
SENATOR COGHILL addressed significant adverse effects as                                                                        
     I  asked the  Department of  Law this,  it goes  to the                                                                    
     "significant  adverse effects."  The  first thing  they                                                                    
     say  is  that  the potential  for  significant  adverse                                                                    
     effects  that in  combination  with  other factors  may                                                                    
     impair or degrade any  habitat characteristic, and then                                                                    
     it goes  back to  the habitat protection  standards and                                                                    
     it seems  to me like  you would  have to write  a whole                                                                    
     book on what any  habitat characteristic would be under                                                                    
     the definitions given under section 2.                                                                                     
MR. BENKERT answered as follows:                                                                                                
     That's what it  says, I think that the  language in the                                                                    
     initiative kind of speaks for  itself. We don't have an                                                                    
     opinion on  which way that  would go, but  obviously it                                                                    
     would take  an awful lot  of thought and effort  for us                                                                    
     to  grapple with  that if  the initiative  was to  move                                                                    
2:48:38 PM                                                                                                                    
SENATOR  WILSON  asked  Mr. Benkert  to  address  the  division's                                                               
permitting process. He inquired how  long do the permits have and                                                               
how often are permits renewed.                                                                                                  
MR. BENKERT answered  that the division typically  does not issue                                                               
permits longer than five years and that two years was typical.                                                                  
SENATOR WILSON asked what the percentage was for permit renewal.                                                                
MR. BENKERT replied that he would  get back to the committee with                                                               
information. He noted that the  division does a lot of amendments                                                               
with DOT&PF  to extend  expiration dates due  to delays  to avoid                                                               
having to start projects over.                                                                                                  
SENATOR WILSON noted  that new projects would have to  go back if                                                               
the initiative passed.  He asked if a current  permit was amended                                                               
if the permit would come under the initiative.                                                                                  
MR.  BENKERT  explained that  the  initiative  indicates that  an                                                               
amended permit would have to public notice as well.                                                                             
2:51:03 PM                                                                                                                    
CHAIR MEYER noted his discussion  earlier in the hearing with the                                                               
Alaska  Department of  Law  regarding  grandfathered permits.  He                                                               
asked to verify  that Mr. Benkert was saying that  if the permits                                                               
were to  come up for  renewal or  amended that the  permits would                                                               
fall under the initiative.                                                                                                      
MR. BENKERT answered as follows:                                                                                                
     As the Department  of Law indicated, Red Dog  is a good                                                                    
     example, they  are currently  planning an  expansion of                                                                    
     that  facility, they  have  their  current permits,  so                                                                    
     they wouldn't be affected by  that if they wanted to do                                                                    
     nothing else,  but under the initiative  if they wanted                                                                    
     to  conduct an  expansion  of the  facility they  would                                                                    
     need new permits to expand  that facility which if this                                                                    
     would  pass   it  would  be   evaluated  under   a  new                                                                    
     permitting  regime  under  what  was  required  by  the                                                                    
CHAIR MEYER thanked  ADF&G for enlightening the  committee on the                                                               
major impact that  he said appears would occur  to the department                                                               
if the initiative passed.                                                                                                       
2:52:36 PM                                                                                                                    
MARC LUIKEN, Commissioner, Alaska Department of Transportation &                                                                
Public Facilities (DOT&PF), Juneau, Alaska, commenced the                                                                       
department's presentation with an overview as follows:                                                                          
   • DOT&PF Mission and Policy:                                                                                                 
        o Our mission at DOT&PF is to "Keep Alaska moving                                                                       
          through service and infrastructure".                                                                                  
        o DOT&PF employs 3,000 Alaskans who collectively                                                                        
          strive to serve all Alaskans and provide them                                                                         
          with efficient and reliable access to goods and                                                                       
        o DOT&PF is committed to environmental stewardship,                                                                     
          we   work  towards   maintaining  healthy   salmon                                                                    
          populations  and maintaining  fish  habitat as  we                                                                    
          accomplish our mission. We  want to ensure healthy                                                                    
         populations of salmon for future generations.                                                                          
   • DOT&PF Core Values:                                                                                                        
        o Integrity: Doing the right thing even when no one                                                                     
          is watching. Doing what you say you are going to                                                                      
             square4 DOT&PF implements commitments made to the                                                                  
               public and  agencies with regard  to projects                                                                    
               that require work in fish habitat.                                                                               
        o Excellence: Commitment to continually improve.                                                                        
             square4 DOT&PF conducts  research,     collects                                                                    
               monitoring  data, and  works  with others  to                                                                    
               improve  our  processes  to ensure  that  our                                                                    
               impacts  to fish  habitat  are minimized  and                                                                    
               that mitigation efforts are successful.                                                                          
        o  Respect:    Positive   regard    for   customers,                                                                    
          stakeholders, investors and colleagues.                                                                               
             square4 DOT&PF works with the public, resource                                                                     
               agencies,  as well  as local  governments and                                                                    
               watershed     councils     during     project                                                                    
               development  to ensure  that impacts  to fish                                                                    
               habitat  are minimized  while still  allowing                                                                    
               Alaska's  much  needed infrastructure  to  be                                                                    
2:53:56 PM                                                                                                                    
BEN  WHITE,  Statewide   Environmental  Program  Manager,  Alaska                                                               
Department  of   Transportation  &  Public   Facilities,  Juneau,                                                               
Alaska, addressed  his presentation, "Ballot  Measure 1-Potential                                                               
Impacts to DOT&PF" as follows:                                                                                                  
     The  proposed  Ballot  Measure 1     Stand  for  Salmon                                                                    
     Initiative    introduces changes to the  way that ADF&G                                                                    
     regulates development within  fish habitat and modifies                                                                    
     Title 16.  This proposal will  have a direct  impact in                                                                    
     the time  and cost it  takes a project to  be developed                                                                    
     and put into construction.                                                                                                 
     It is  anticipated that this  proposal will  require an                                                                    
     additional  8  positions  within the  Department  at  a                                                                    
     total  annual increase  of $953,900;  this figure  does                                                                    
     not  consider the  services  and  commodities costs  of                                                                    
     each position;  e.g., office furniture,  phone service,                                                                    
     IT service, computers and other office supplies.                                                                           
MR. WHITE referenced "DOT&PF Activities in Fish Streams" as                                                                     
   • There are several ways that DOT&PF projects involve work                                                                   
     within and near fish habitat:                                                                                              
        o Culverts (New);                                                                                                       
        o Culverts (Improvements);                                                                                              
        o Culverts (Maintenance);                                                                                               
        o Bridges (New);                                                                                                        
        o Bridges (Replacements);                                                                                               
        o Bridges (Maintenance);                                                                                                
       o Roadway Embankment Protection (Riprap Armoring);                                                                       
        o Stream Realignments Temporary and Permanent (Airports,                                                                
        o Mitigation,    Restoration,     Enhancement    (Habitat                                                               
2:56:15 PM                                                                                                                    
He addressed "The proposed language could restrict or prohibit"                                                                 
as follows:                                                                                                                     
   • Culverts with inverts;                                                                                                     
 • Riprap for erosion protection and scour counter-measures;                                                                    
   • Channel maintenance (alluvial systems);                                                                                    
   • Temporary construction activities, diversions, and water                                                                   
He addressed "The presumption that a naturally occurring                                                                        
'permanent or seasonal water body' is anadromous" as follows:                                                                   
   • Most critical aspect of the proposed changes to current                                                                    
     fish-habitat regulations  the assumption of anadromous                                                                     
     fish would lead to extra  resource demands for DOT&PF (staff                                                               
     time,  funding,  etc.),  and  project  delivery  time  would                                                               
   • Delay in project delivery: The proposed language requires                                                                  
     applicants  to prove  fish  do  not exist  for  all work  in                                                               
     Alaska waters.                                                                                                             
   • Design for fish passage everywhere: This will require more                                                                 
     technical  design   time  and  generally   larger  hydraulic                                                               
   • Example: new scour risk.                                                                                                   
MR.  WHITE  summarized  that the  initiative  will  increase  the                                                               
delivery  time of  the division's  projects. He  said one  of the                                                               
options  the department  has  is to  design  everything for  fish                                                               
passage, an  option that will  require more technical  design and                                                               
effort.  He  said  the  department  will  have  to  design  large                                                               
hydrological  structures  for  passing   fish  rather  than  just                                                               
passing water. He summarized that  larger structures will require                                                               
more maintenance and monitoring on a regular schedule.                                                                          
2:58:38 PM                                                                                                                    
He addressed  the "Use of  the term 'significant  adverse effect'                                                               
and vague  terms like 'reasonable period'  and 'habitat-dependent                                                               
connections'" as follows:                                                                                                       
   • Under NEPA a "significant adverse effect" would require                                                                    
     either  an Environmental  Assessment  (EA) or  Environmental                                                               
     Impact  Statement   (EIP).  Currently  most  of   our  minor                                                               
     maintenance  projects  fall  under a  Categorical  Exclusion                                                               
        o CE development time: 6-12 months;                                                                                     
        o EA development time: 1-3 years;                                                                                       
        o EIS development time: up to 5 or more years.                                                                          
He  summarized  that the  ballot  measure  has the  potential  to                                                               
increase the amount of time if  takes for the department to build                                                               
up its environmental document.                                                                                                  
SENATOR COGHILL asked if his  significant adverse effect overview                                                               
was a "term of art" for triggering an environmental assessment.                                                                 
MR. WHITE answered as follows:                                                                                                  
     Significant adverse effect as defined in NEPA the act,                                                                     
       we are not allowed to do categorical exclusions on                                                                       
     anything that has a significant impact.                                                                                    
SENATOR COGHILL commented as follows:                                                                                           
     So just us putting this in statute would drive you to                                                                      
      an environmental impact study on most anything that                                                                       
     had that kind of an impact?                                                                                                
MR. WHITE answered that there was a potential for it to cause                                                                   
SENATOR COGHILL replied that he did not know that.                                                                              
3:00:22 PM                                                                                                                    
MR. WHITE addressed the "Two-step public notice process" and the                                                                
"No timelines established for 'major' fish habitat permits" as                                                                  
   • Two-step public notice process:                                                                                            
        o The proposed language indicates that there are two                                                                    
          public notice steps in the process: the application                                                                   
          and initial determination as well as a draft permit.                                                                  
 • No timelines established for "major" fish-habitat permits:                                                                   
        o Most of the work accomplished by DOT&PF would be                                                                      
          processed under a "major" permit.                                                                                     
        o Without established timelines there is uncertainty in                                                                 
          project delivery, and delay causes increased costs or                                                                 
          potential loss of funding.                                                                                            
He addressed "Potential conflict between engineering/safety                                                                     
requirements and habitat requirements" as follows:                                                                              
   • DOT&PF Engineers are responsible for safeguarding the                                                                      
     traveling public.                                                                                                          
   • Risks related to scour vulnerability, reduced flood                                                                        
     resiliency, and adverse impacts to adjacent properties                                                                     
     could increase.                                                                                                            
3:03:01 PM                                                                                                                    
He addressed "Reconsideration determinations, automatic denial                                                                  
if the commissioner fails to make a determination" as follows:                                                                  
   • There is no mention of "good standing" for someone that has                                                                
     participated in the permit process (public notice).                                                                        
   • Reconsideration determinations will require additional work                                                                
     from both the applicant and permitting agency.                                                                             
   • Reconsideration determinations result in automatic denial                                                                  
     if there is failure to address.                                                                                            
MR. WHITE summarized  that reconsideration determinations creates                                                               
uncertainty  for the  department  in project  development and  is                                                               
difficult to build into their construction projects.                                                                            
He addressed  "Mitigation required  for all  'significant adverse                                                               
effects'" as follows:                                                                                                           
   • The proposed language now makes mitigation required for all                                                                
     significant adverse effects.                                                                                               
   • The proposed language states that a fish-habitat permit                                                                    
     "may not be granted for an activity that will cause                                                                        
     substantial damage to anadromous fish habitat."                                                                            
He asserted  that the department  has done  a fairly good  job in                                                               
creating a lot  of fish habitat where there was  not fish habitat                                                               
before.  He disclosed  that the  department  has actively  worked                                                               
with ADF&G to remove fish-passage-problem culverts.                                                                             
He addressed "Limitation on mitigation options" as follows:                                                                     
   • The proposed language indicates that permit conditions or                                                                  
     mitigation measures  "may not offset the  activity's adverse                                                               
     effects"  in another  water  body or  portions  of the  same                                                               
     water body.  This proposed  language requires  mitigation to                                                               
     occur on-site.                                                                                                             
   • On-site mitigation for airports causes other wildlife                                                                      
He  explained  that the  proposed  mitigation  language will  not                                                               
allow for  upstream or offsite  mitigation, a proposal  that will                                                               
pose  a problem  with  airport projects  regarding runway  safety                                                               
3:06:53 PM                                                                                                                    
He addressed "DOT&PF Public Process" as follows:                                                                                
   • DOT&PF has a robust public process for the development of                                                                  
     our infrastructure projects:                                                                                               
        o During initial planning:                                                                                              
             square4 Highways: Statewide Transportation Implementation                                                          
               Plan (STIP).                                                                                                     
             square4 Aviation: Airport Improvement Plans.                                                                       
        o During project development:                                                                                           
             square4 Public Involvement Plans/NEPA.                                                                             
             square4 Public comment periods, meetings, workshops.                                                               
        o During the permit process:                                                                                            
             square4 Public review and comment on permit process.                                                               
             square4 Section 404/10  Wetlands and Waters of the U.S.                                                            
3:08:01 PM                                                                                                                    
CHAIR  MEYER remarked  that  Mr. White  had done  a  good job  of                                                               
pointing   out  that   the   initiative   would  create   delays,                                                               
duplication, and increased cost  to the department's projects. He                                                               
asked if there were  road projects that may not be  able to get a                                                               
permit under the initiative.                                                                                                    
MR. WHITE answered that there  may be projects or activities that                                                               
are difficult to get a permit for. He continued as follows:                                                                     
     I think at the end of the  day we have to get the roads                                                                    
     constructed, we have to get  the airports built, and we                                                                    
     will work diligently with our  other agencies to do the                                                                    
     mitigation and to make these  things happen. I hesitate                                                                    
     to say that the project  itself would stop, but I think                                                                    
     there  are  aspects of  the  project  that we  will  be                                                                    
     forced to redesign and restructure,  so we will have to                                                                    
     use our  engineers and  get creative  and come  up with                                                                    
     another alternative.                                                                                                       
CHAIR  MEYER  opined that  projects  on  the Seward,  Glenn,  and                                                               
Sterling highways would be impacted by the initiative.                                                                          
SENATOR WILSON  asked what  percentage of  the 242  airports that                                                               
DOT&PF operates may be affected by the initiative.                                                                              
MR.  WHITE  answered that  he  would  have  to  get back  to  the                                                               
committee with the information.                                                                                                 
SENATOR WILSON replied  that he just wanted to  remind folks that                                                               
DOT&PF  does  more  than  just  roads.  He  noted  that  the  new                                                               
definition in the  initiative does not really  have boundaries of                                                               
where the waterways go and asked  what the impact might be on the                                                               
Alaska Marine Highway System.                                                                                                   
MR. WHITE answered as follows:                                                                                                  
     We  currently  have  a  few  projects  specifically  in                                                                    
     Ketchikan  where  we  are  looking  at  ferry  terminal                                                                    
     improvements and there are going  to be some situations                                                                    
     where  we've  got  anadromous  fish  streams  and  fish                                                                    
     habitat  nearby  at some  of  marine  terminals, so  we                                                                    
     would have  to evaluate  that to  see exactly  what the                                                                    
     impact will be.                                                                                                            
3:10:42 PM                                                                                                                    
SENATOR WILSON asked if Mr. White could provide the committee                                                                   
members in the future with a "ballpark number" of construction                                                                  
SENATOR  COGHILL   noted  that  he  appreciated   the  department                                                               
addressing "significant  impacts" and  how that might  affect the                                                               
NEPA implementation,  something that  is important.  He continued                                                               
as follows:                                                                                                                     
     It's also true  that in Alaska almost  everything we do                                                                    
     outside  of   our  existing  roads  is   a  green-field                                                                    
     operation. I'm  thinking in the Fairbanks  area we have                                                                    
     actually  used some  of the  roads as  flood mitigation                                                                    
     and  this  would stop  any  of  that  I would  take  it                                                                    
     because  if  it's  going   to  impact  the  floodplain,                                                                    
     building  a  road across  it  that  would probably  not                                                                    
     work. So,  would that be  your take in  this particular                                                                    
     situation, this initiative?                                                                                                
MR. WHITE answered that he believed so.                                                                                         
SENATOR COGHILL commented as follows:                                                                                           
     My guess  is most of the  work you do has  places where                                                                    
     public comment  would generate  attention and  bring it                                                                    
     to  a litigation,  so whenever  there  is tension  like                                                                    
     that the  clarity of definitions  is probably  a little                                                                    
     better  for you.  So, the  ambiguity you  brought up  I                                                                    
     think is  going to  be important  for us  to understand                                                                    
     because  I  think  what  you've  just  highlighted  was                                                                    
     places where  litigation certainly will  happen because                                                                    
     of the ambiguity, so I appreciate that.                                                                                    
3:12:28 PM                                                                                                                    
SENATOR GIESSEL addressed the potential for DOT&PF delays as                                                                    
     On page 9 you talked  about the potential delays in the                                                                    
     projects,  extending  from  6  months to  more  than  5                                                                    
     years, but then I look back  on page 4 and I don't know                                                                    
     that  you actually  called out  what  you estimate  the                                                                    
     total annual  cost being  of approximately  $1 million,                                                                    
     you only counted in that  the 8 positions it looks like                                                                    
     and what you  really outlined here is  delays could not                                                                    
     only  add  cost  but  possible  compromise  even  grant                                                                    
     funding from the federal  government, things like that,                                                                    
     it   sounds  like   $1  million   might  be   a  rather                                                                    
     conservative estimate.                                                                                                     
MR. WHITE  confirmed that  the $953,000 was  an estimate  on just                                                               
the amount  of positions required to  do the work. He  said he is                                                               
not  aware of  the  department  doing a  cost  analysis from  the                                                               
impact of project delays.                                                                                                       
SENATOR GIESSEL accepted that the  cost could be greater, but the                                                               
coast has  not been quantified. She  addressed DOT&PF maintenance                                                               
as follows:                                                                                                                     
     You talked  about possibly being prohibited  from using                                                                    
     ripraps around bridge abutments  to protect the bridge,                                                                    
     the road,  etcetera. What about  road sanding  and road                                                                    
     plowing?  You go  over bridges  and  over culverts  and                                                                    
     snow  of course  is diverted  into those  waterways the                                                                    
     culvert  passes through,  there  will be  sand in  that                                                                    
     snow, certainly  some chemicals  to decrease  icing, it                                                                    
     sounds like those  will be implicated as  well. Are you                                                                    
     going to  have to  protect somehow preventing  the snow                                                                    
     from falling into that stream?  You could have chemical                                                                    
3:14:23 PM                                                                                                                    
MR. WHITE  answered that  DOT&PF works  diligently with  ADF&G to                                                               
capture  sediment that  is  coming off  structures.  He said  the                                                               
final regulation from ADF&G will  dictate the total impact to the                                                               
department's maintenance and operations crew.                                                                                   
SENATOR GIESSEL addressed riverbank  erosion in the Mat-Su Valley                                                               
and continued as follows:                                                                                                       
     I know  DOT&PF has to  do considerable work  to protect                                                                    
     the roads that are there  and even homes from flooding,                                                                    
     sounds like  this initiative could affect  your work in                                                                    
     that realm, certainly if you  had to apply for a permit                                                                    
     that could delay  it and it may be a  moot point by the                                                                    
     time   the   river   erodes.   Is   that   a   possible                                                                    
MR.  WHITE   answered  that  Senator  Giessel's   question  is  a                                                               
possibility. He  reiterated that the department  works diligently                                                               
with ADF&G  to find a way  to streamline the permit  process, but                                                               
the initiative  would have an impact  on the way DOT&PF  can work                                                               
in fish habitat.                                                                                                                
SENATOR WILSON  concurred with Senator  Giessel on the  delays of                                                               
road projects.  He noted  that a Mat-Su  Valley road  project was                                                               
delayed one year, and the  project increased over $2 million from                                                               
the delay.  He thanked the  commissioners for their  culvert work                                                               
in the Mat-Su  Valley for fish passage but noted  that water must                                                               
be stopped for  a period of time  to put the new  culverts in and                                                               
the initiative would  not allow the water to be  stopped. He said                                                               
he was worried about some  of the culvert replacements within the                                                               
Mat-Su  Valley's  streams  and  roadways. He  remarked  that  the                                                               
culvert  work that  was  done  to improve  the  fish habitat  and                                                               
increase  the amount  of fish  has been  wonderful and  suggested                                                               
that committee members look at the new culverts.                                                                                
CHAIR  MEYER announced  that the  next department  is the  Alaska                                                               
Department  of  Natural Resources  (DNR).  He  conceded that  all                                                               
departments will  be impacted  by Ballot  Measure 1  but remarked                                                               
that he anticipated DNR would have the most impact.                                                                             
3:17:20 PM                                                                                                                    
ANDREW  T.  MACK,  Commissioner,  Alaska  Department  of  Natural                                                               
Resources,   Anchorage,  Alaska,   referenced  the   department's                                                               
mission and what the department does as follows:                                                                                
     Our  mission: develop,  conserve,  and maximize  the use  of                                                               
     Alaska's  natural  resources   consistent  with  the  public                                                               
     interest.  Public interest  is  something that  is a  common                                                               
     theme  that runs  through virtually  every decision  we make                                                               
     and  if  you  look  at  the criteria  that  comes  to  water                                                               
     authorizations and  land-use plans,  the public  interest is                                                               
     always an important question that we answer.                                                                               
     What  we do:  manage the  state's land,  water, and  mineral                                                               
     resources on  behalf of Alaskans.  We have a  land portfolio                                                               
     of 105  million acres  and a water  portfolio of  45 million                                                               
     acres,  a  total  of  150  million acres;  this  is  a  very                                                               
     important,  perhaps the  most  important responsibility.  We                                                               
     also  have  some  really important  understandings  that  go                                                               
     along with  our responsibility to  all Alaskans, one  of the                                                               
     most  important   is  that  we   have  an   important  trust                                                               
     relationship between  the State of Alaska  and Alaska native                                                               
COMMISSIONER  MACK  explained  that   the  Alaska  Native  Claims                                                               
Settlement Act (ANCSA) passage in  1971 entitled 44 million acres                                                               
to the  native corporations. He  noted that implied in  ANCSA was                                                               
that there would  be development, on the North  Slope there would                                                               
be  a  pipeline  system  built,   and  there  also  would  be  an                                                               
opportunity  for  those  entities  to  develop  their  land;  for                                                               
example, the development at the Red  Dog Mine, a project that now                                                               
has  the opportunity  to  extend  into state  land.  He said  the                                                               
department  expects   to  work  cooperatively  with   the  native                                                               
corporations  that own  land  in the  Red Mine  area  as well  as                                                               
looking to the  native corporations for their  guidance and their                                                               
perspective on the initiative issue as well.                                                                                    
3:21:00 PM                                                                                                                    
He referenced "DNR Roles & Responsibilities" as follows:                                                                        
   • DNR provides for the protection of fish and wildlife                                                                       
     habitat in its land management plans and land and water-use                                                                
   • DNR manages the use and diversion of water on all lands in                                                                 
   • DNR works with ADF&G and ADEC on specific management plan                                                                  
     guidelines and authorization/permit conditions related to                                                                  
     fish and wildlife resources.                                                                                               
He summarized as follows:                                                                                                       
     The general gist  of our ownership interest  is that we                                                                    
     would develop  that land for  the benefit  of Alaskans,                                                                    
     and it  is really a forward-meaning  statement and it's                                                                    
     a forward-meaning  law which indicates that  as general                                                                    
     principle we look to develop our lands responsibly.                                                                        
3:23:01 PM                                                                                                                    
KYLE MOSELLE,  Associate Director,  Office of  Project Management                                                               
and   Permitting,  Alaska   Department   of  Natural   Resources,                                                               
Anchorage, Alaska,  referenced "Impact  of Initiative on  DNR" as                                                               
   • The initiative focuses primarily on Title 16 fish-habitat                                                                  
     permits and ADF&G statutory authorities.                                                                                   
   • However, if passed into law, the initiative may constrain                                                                  
     DNR statutory authorities to appropriate water (AS 46.15).                                                                 
   • DNR water authorizations/appropriations are used for:                                                                      
        o Transportation projects:                                                                                              
             square4 Ice roads to access oil and gas projects;                                                                  
             square4 Airports/docks;                                                                                            
             square4 Highways.                                                                                                  
        o Mining/industrial projects:                                                                                           
             square4 Operations and diversions;                                                                                 
             square4 Disposal of hard rock and coal mine tailings.                                                              
        o Pipelines                                                                                                             
        o Residential/commercial construction projects                                                                          
        o Municipal:                                                                                                            
             square4 Water and sewer;                                                                                           
             square4 Schools and other municipal buildings/projects.                                                            
        o Many other smaller projects                                                                                           
MR. MOSELLE continued as follows:                                                                                               
     When you are talking  about water it's everywhere, it's                                                                    
     ubiquitous in our state, but  it's held in common under                                                                    
     Title 8  of the  Alaska Constitution. DNR  manages that                                                                    
     water and we have to determine  what is the best use of                                                                    
     that water  in our permitting, that's  really where the                                                                    
     initiative  is going  to  start to  affect  what we  do                                                                    
3:25:01 PM                                                                                                                    
He referenced the "DNR Water Authorizations" categories as                                                                      
   • Reservation of Water:                                                                                                      
        o The statutory purposes for a reservation include the                                                                  
          protection of fish and wildlife habitat, migration,                                                                   
          and propagation (AS 46.15.145)                                                                                        
   • Traditional Water Rights:                                                                                                  
       o AS 46.15.080 Public Interest Criteria includes:                                                                        
             square4 The effect on fish and game resources and on                                                               
               public recreational opportunities;                                                                               
             square4 Permit and certificate can include conditions                                                              
               requiring fish protection.                                                                                       
   • Temporary Water Use:                                                                                                       
        o Must consult with ADF&G and ADEC prior to issuance;                                                                   
        o Includes conditions which protect ecosystems (fish and                                                                
He addressed "Large Project Coordination" as follows:                                                                           
   • The DNR Office of Project Management and Permitting (OPMP)                                                                 
     may coordinate the review of larger scale projects in the                                                                  
     state, such as transportation, oil and gas, mining, and                                                                    
     alternative energy projects.                                                                                               
   • OPMP facilitates multidisciplinary agency teams to review                                                                  
     project plans and inform individual agency decisions.                                                                      
MR. MOSELLE emphasized that the initiative only modifies the                                                                    
authorities of ADF&G in Title 16 with fish-habitat permits and                                                                  
continued as follows:                                                                                                           
     When  you  are talking  about  a  larger project  or  a                                                                    
     complex  project,  hopefully   what  the  committee  is                                                                    
     starting  to  see  now  that   we  are  three  or  four                                                                    
     presentations  in  here  is that  a  relatively  simple                                                                    
     activity, let's say  a culvert, it's not  just a single                                                                    
     permit, it's  a fish-habitat  permit, it's  a temporary                                                                    
     water-use  authorization  to   temporarily  divert  the                                                                    
     stream so  that the culvert  can be installed,  so it's                                                                    
     multiple permits. When you start  to scale that up to a                                                                    
     dam project  that would impound water,  yes it requires                                                                    
     a fish-habitat  permit which would  be affected  by the                                                                    
     changes   that   the   initiative  proposes   and   the                                                                    
     authorities of Fish  and Game, but then  there are also                                                                    
     other agencies,  DNR has to  consider a  certificate to                                                                    
     construct  that  dam,  to  operate  that  dam,  it's  a                                                                    
     jurisdictional  dam under  DNR's  authorities as  well.                                                                    
     So, you  start to  have overlapping  jurisdictions, but                                                                    
     to be clear the initiative  only amends or modifies the                                                                    
     authorities of Fish and Game, so it's Title 16.                                                                            
     In our  presentation and in the  affidavit submitted by                                                                    
     Mr.  Dave   Schade,  [Chief  of  the   Water  Resources                                                                    
     Section,  Alaska  Department   of  Natural  Resources],                                                                    
     there is  this consideration though of  does that allow                                                                    
     DNR  to consider  the best  use  of that  water if  the                                                                    
     activity is unable to be approved by Fish and Game.                                                                        
3:28:31 PM                                                                                                                    
He referenced a diagram on the inter-agency coordination that                                                                   
demonstrated the extensive coordination between state and                                                                       
federal agencies for a large mine project:                                                                                      
   • Alaska Department of Natural Resources,                                                                                    
   • Alaska Department of Revenue,                                                                                              
   • Alaska Department of Environmental Conservation,                                                                           
   • Alaska Department of Health and Social Services,                                                                           
   • Alaska Department of Law,                                                                                                  
   • Alaska Department of Fish and Game.                                                                                        
3:30:46 PM                                                                                                                    
CHAIR MEYER commented on resource development as follows:                                                                       
     As you  know, a lot  of times projects are  started and                                                                    
     then  they  expand  as  they   go  forward  with  their                                                                    
     production or their mining.                                                                                                
     If a project is permitted  now and they want to expand,                                                                    
     it's  my understanding  that they  would  have to  fall                                                                    
     under the  new initiative if  they want to  expand that                                                                    
     project. Is that your understanding as well?                                                                               
MR.  MOSELLE answered  that Chair  Meyer's observation  and query                                                               
would  essentially  be  his   understanding.  He  explained  that                                                               
authorizations by all  agencies define the scope  of the activity                                                               
that  can  occur.  He  specified   that  an  expansion  of  scope                                                               
currently approved  would require  a minimum  of an  amendment of                                                               
current approvals, if not a new permit entirely.                                                                                
CHAIR MEYER noted all the  streams that the Trans-Alaska Pipeline                                                               
System  (TAPS)  had to  go  over.  He  asked how  the  governor's                                                               
proposed  gas pipeline  through  the  Alaska Gasline  Development                                                               
Corporation (AGDC) would get permitted under the initiative.                                                                    
COMMISSIONER MACK  answered that  he believed  AGDC is  on record                                                               
saying that  the initiative  would make  it nearly  impossible to                                                               
permit the proposed gas pipeline.                                                                                               
3:33:02 PM                                                                                                                    
SENATOR GIESSEL commented as follows:                                                                                           
     As I  recall, AGDC has  commented that they  cross over                                                                    
     600-stream crossings  and we've heard how  difficult it                                                                    
     is for DOT&PF to protect  those banks. I know that TAPS                                                                    
     actually has bridges that carry  that pipeline and so I                                                                    
     would  assume the  gas  pipeline  would have  something                                                                    
She  addressed  the inter-agency  diagram  and  noted the  public                                                               
notice  requirements.  She  asked  how long  the  public  comment                                                               
periods are  and if the  comment periods occur  simultaneously or                                                               
in sequence.                                                                                                                    
MR. MOSELLE noted that the  inter-agency diagram's key references                                                               
as follows:                                                                                                                     
   • Formal authorization;                                                                                                      
   • Advisory role;                                                                                                             
   • Public notice required;                                                                                                    
   • Courtesy public notice.                                                                                                    
MR. MOSELLE  detailed that the  diagram shows when  public notice                                                               
is required  by statute  or regulation  for an  authorization. He                                                               
noted  that  each permit  has  different  governing statutes  and                                                               
regulations. He  said public notices  are variable, but  most are                                                               
30 days.                                                                                                                        
He noted that  the diagram shows that fish habitat  does not have                                                               
a  requirement for  public notice;  however, the  initiative does                                                               
require a public notice that  is multi-tiered, a requirement that                                                               
is more complicated than what is indicated in the diagram.                                                                      
He pointed  out that  the diagram  references coordination  for a                                                               
major  mining project  with an  assumption that  the fish-habitat                                                               
permit  would be  a  major fish-habitat  permit  that would  fall                                                               
under the public notice requirements outlined in the initiative.                                                                
3:35:57 PM                                                                                                                    
SENATOR GIESSEL asked to clarify  that present public notice is a                                                               
30-day  period in  which  the public  can  comment by  submitting                                                               
their comments to the various departments.                                                                                      
MR.  MOSELLE replied  that he  would have  to refer  back to  the                                                               
SENATOR GIESSEL responded that she  was addressing present public                                                               
notice  and  noted  that  the  department  presently  has  public                                                               
MR. MOSELLE answered as follows:                                                                                                
      For example, the waste management permit, there is a                                                                      
    public   notice   requirement    in   DEC's   statutory                                                                     
     authorities, I don't know it off the top of my head.                                                                       
SENATOR GIESSEL asked whether DEC accepts public comment.                                                                       
MR.  MOSELLE answered  yes, public  comment is  accepted for  the                                                               
waste-management permit process.                                                                                                
SENATOR GIESSEL replied as follows:                                                                                             
     What I'm  trying to  establish is  do we  accept public                                                                    
     comment  now for  permits  or  authorizations or  would                                                                    
     this be  a whole new  thing we've never  allowed public                                                                    
     comment before?                                                                                                            
MR.  MOSELLE referenced  the  inter-agency  diagram and  answered                                                               
that the  departmental activities noted within  red boxes accepts                                                               
public comment as part of the public notice.                                                                                    
SENATOR GIESSEL replied as follows                                                                                              
     Many of  the departments  who have  spoken so  far have                                                                    
     pointed  out that  they would  have to  be writing  new                                                                    
     regulations.  Regulatory  projects  that  come  out  of                                                                    
     departments also  have a public  notice which  allows a                                                                    
     30 day,  generally, public comment period  and actually                                                                    
     I believe  if I'm not mistaken,  those departments have                                                                    
     to take  into consideration that public  comment before                                                                    
     they actually solidify those  regulations. Is that also                                                                    
     your understanding?                                                                                                        
3:37:24 PM                                                                                                                    
MR. MOSELLE concurred with Senator Giessel.                                                                                     
SENATOR GIESSEL  explained that her  intent is to  understand the                                                               
current public  comment process where  citizens can speak  up and                                                               
participate in the process. She  noted that she mentioned earlier                                                               
that  an area  in her  district must  use water  tenders to  haul                                                               
water   for  fighting   fires.  She   referenced  Mr.   Moselle's                                                               
presentation on "DNR Water Authorizations:"                                                                                     
   • Reservation of Water:                                                                                                      
        o The statutory purposes for a reservation include the                                                                  
          protection of fish and wildlife habitat, migration,                                                                   
          and propagation (AS 46.15.145)                                                                                        
   • Traditional Water Rights:                                                                                                  
       o AS 46.15.080 Public Interest Criteria includes:                                                                        
             square4 The effect on fish and game resources and on                                                               
               public recreational opportunities;                                                                               
             square4 Permit and certificate can include conditions                                                              
               requiring fish protection.                                                                                       
   • Temporary Water Use:                                                                                                       
        o Must consult with ADF&G and ADEC prior to issuance;                                                                   
        o Includes conditions which protect ecosystems (fish and                                                                
SENATOR GIESSEL noted that the water tenders she previously                                                                     
referenced would fall under the "public interest criteria" for                                                                  
"traditional water rights." She continued as follows:                                                                           
     I'm  not sure  where these  tenders can  withdraw water                                                                    
     from   water  bodies   that   are   nearby.  Is   there                                                                    
     authorization  required  now?   Would  it  become  more                                                                    
     complicated with the initiative?                                                                                           
MR. MOSELLE replied as follows:                                                                                                 
     I'm not  familiar with that  specific example  that you                                                                    
     are  asking  about  but  in   general  terms,  yes,  if                                                                    
     somebody or an  entity or individual is  using water on                                                                    
     a sustained basis they would  need a water right and in                                                                    
     the  statute  cited  there, there  is  some  thresholds                                                                    
     identified, so  if it's over a  certain gallon-per-day-                                                                    
     type use then  it moves you from a  temporary water use                                                                    
     to  a water  right  needing.  Generally speaking,  yes,                                                                    
     water for  somebody's well  system or  collecting water                                                                    
     from any surface waterbody for  use in their home, that                                                                    
     would be  a water  use that  you would  need to  have a                                                                    
     right  for  if  you  are   over  the  limits  that  are                                                                    
     identified in the statute.                                                                                                 
     The second  part of  your question  was how  might that                                                                    
     change with  the passage of  the initiative and  I will                                                                    
     read a statement from Mr.  Dave Schade's affidavit that                                                                    
     speaks  to that,  he concludes  in his  testimony that,                                                                    
     "Enactment of  17FSH2 would  deprive the  Department of                                                                    
     Natural Resources  of authority  to determine  that the                                                                    
     use  of  anadromous  fish habitat  as  defined  in  the                                                                    
     initiative would best serve the  public interest by use                                                                    
     for  many  large  projects  such  as  mines,  dams  and                                                                    
     pipelines."  So,  I think  that  he  is speaking  about                                                                    
     water  use there  and the  department's need  to define                                                                    
     the public interest  and the best use of  that water as                                                                    
     part of our appropriations  process and he's concluding                                                                    
     that   the  enactment   of  that   would  deprive   the                                                                    
     department of the ability to do that.                                                                                      
3:40:41 PM                                                                                                                    
SENATOR GIESSEL  addressed TAPS and  noted that  Alyeska Pipeline                                                               
has 60 to 80 permits a  year to continue operating TAPS regarding                                                               
crossing  water  bodies and  going  through  riparian areas.  She                                                               
asked how the initiative would  affect Alyeska's permit renewals.                                                               
She pointed out that grandfathering is not permanent.                                                                           
MR. MOSELLE answered as follows:                                                                                                
     I think generally speaking,  any long-linear project is                                                                    
     going to  face challenges with the  ability to maintain                                                                    
     their  fish-habitat permits  and  the  example you  are                                                                    
     giving  is an  existing permitted  activity that  might                                                                    
     require  maintenance  or  might require  adjustment  in                                                                    
     scope  of   their  activities,  and  as   you've  heard                                                                    
     previously in testimony that  those would be amendments                                                                    
     to or  revisions of their current  fish-habitat permits                                                                    
     and  so  I  would  expect  those  to  then  fall  under                                                                    
     provisions of the new law if this were to pass.                                                                            
3:42:11 PM                                                                                                                    
COMMISSIONER MACK commented as follows:                                                                                         
     One  of things  that we've  tried to  evaluate but  has                                                                    
     been  difficult to  understand the  implications is  in                                                                    
     the case of  an existing pipeline and TAPS  is the most                                                                    
     notable example, but all across  the North Slope and in                                                                    
     Cook  Inlet there  are hundreds  of pipelines  that are                                                                    
     common-carrier pipelines  and they  all fall  under the                                                                    
     State Pipeline  Coordinator's Office  which is  part of                                                                    
     DNR, and most of  them have long existing right-of-ways                                                                    
     that  have been  established and  we've been  trying to                                                                    
     assess  what access  are to  those rights  because even                                                                    
     though sometimes they are  50-year easements or 50-year                                                                    
     right-of-ways, they do expire and  then they have to be                                                                    
     renewed  and in  many cases  there is  a review  of the                                                                    
     right-of-way  and  what the  terms  are  and it's  very                                                                    
     difficult for  us because  we've not  been able  to pin                                                                    
     point   the  impact   on  the   renewals  of   existing                                                                    
SENATOR COGHILL commented as follows:                                                                                           
     In  reading the  initiative  it looks  to  me like  the                                                                    
     commissioner  of  Fish  and  Game  is  prohibited  from                                                                    
     issuing a permit  unless you come up  with a mitigation                                                                    
     plan  because it  says, "Major  commit to  an applicant                                                                    
     may be  made only if,"  and then it gives  5 conditions                                                                    
     and  one of  those conditions  is the  mitigation issue                                                                    
     which it  looks to  me like  the permit  conditions and                                                                    
     mitigation  measures have  about 14  different criteria                                                                    
     including even  the use of  "overburden" which  I think                                                                    
     would probably, if they're not  even allowed to issue a                                                                    
     permit if  "overburdened" is used at  all anywhere near                                                                    
     a  possible impact  of a  stream or  a water  body that                                                                    
     could  impact  the  stream,  sounds   to  me  like  the                                                                    
     "overburden" issue  would be  the key point  that would                                                                    
     say,  "The   issue  cannot  be  permitted   under  this                                                                    
     proposal." Is  that the  way you  read it?  The section                                                                    
     I'm looking  at is  "section 885"  which is  under (e),                                                                    
     "The  commissioner  may  issue  a major  commit  to  an                                                                    
     applicant   only  if,"   and  then   it  gives   the  5                                                                    
     conditions, one  of those conditions is  the mitigation                                                                    
     measures, not withstanding the  other measures, and the                                                                    
     mitigation measures  have about 14  different criteria,                                                                    
     "overburden" being one of them.                                                                                            
3:45:06 PM                                                                                                                    
COMMISSIONER MACK answered as follows:                                                                                          
     It's a  very important  question because  overburden in                                                                    
     Alaska is  almost the  first issue  that you  deal with                                                                    
     when you  open up  a materials site,  when you  want to                                                                    
     engage in  plaster mining,  if you  want to  build some                                                                    
     sort of  larger scale process. People  do forget though                                                                    
     on the North Slope the first  thing you have to do when                                                                    
     you  build facilities  is remove  the overburden,  then                                                                    
     you  get to  business of  getting a  pour permit  which                                                                    
     allows you  to place spill,  gravel on the  tundra, and                                                                    
     then  you  start  building  additional  parts  of  your                                                                    
     So,  I would  agree with  your interpretation  of this,                                                                    
     Senator   Coghill,  in   that   not  allowing   offsite                                                                    
     mitigation and not allowing  somebody to mitigate their                                                                    
     project  in  different  ways, in  creative  ways,  will                                                                    
     limit  the ability  of  an applicant  in  all of  those                                                                    
     settings,  materials  site,  DOT,  or  it  could  be  a                                                                    
     private  landowner who  wants  to  exploit the  gravel-                                                                    
     mineral   resource    I   mentioned.    Alaska   native                                                                    
     corporations  in many  cases, they  are a  gravel owner                                                                    
     and  they are  providing  material  to build  community                                                                    
     infrastructure, roads  and playgrounds.  Plaster miners                                                                    
     who are  small mom-and-pop  operations to  larger. Look                                                                    
     at Fort  Knox for instance  which just had  some really                                                                    
     fantastic  news where  they now  have a  clear path  to                                                                    
     extend the life  of that mine past  2030, they continue                                                                    
     to  employ  600 from  Fairbanks,  the  average wage  is                                                                    
     $100000 a  year, the first  thing they will have  to do                                                                    
     into  that new  area  is to  deal  with the  overburden                                                                    
     issues, it makes it very,  very difficult for them, and                                                                    
     there are many settings where this takes place.                                                                            
3:47:13 PM                                                                                                                    
SENATOR COGHILL  claimed that the  issue turns into  an exclusive                                                               
right   question,  which   is  a   constitutional  question.   He                                                               
referenced Article 8, Section 13  regarding water rights for fish                                                               
and water, and read the following:                                                                                              
     All  surface and  subsurface  waters  reserved for  the                                                                    
     people  for common  use  except  mineral and  medicinal                                                                    
     waters  are  subject   to  appropriation.  Priority  of                                                                    
     appropriation  shall  give   prior  right,  except  for                                                                    
     public water,  supply and appropriation of  water shall                                                                    
     be   limited  to   stated  purposes   and  subject   to                                                                    
     preferences among beneficial  uses, not exclusive uses,                                                                    
     concurrent  or otherwise  as prescribed  by law  and to                                                                    
     the general reservation of fish and wildlife.                                                                              
He commented as follows:                                                                                                        
     So, we are  supposed to protect our  fish and wildlife,                                                                    
     but it's not  exclusive and I think that is  one of the                                                                    
     things that we need  to continually remind ourselves of                                                                    
     is  it's a  balance  between what  in our  constitution                                                                    
     says we  are supposed  to be able  to do  "mineral;" in                                                                    
     fact, it says, "The  policy is encouraged settlement of                                                                    
     its land  and development  of its resources."  So, that                                                                    
     is the balance  we are continually trying  to catch and                                                                    
     I  think  those  people  who  brought  this  initiative                                                                    
     forward have one view in  mind and that is an exclusive                                                                    
     right and it  just appears to me as we  go through this                                                                    
     law that's  exactly what they  want to do, and  I don't                                                                    
     blame   them,  fish   are  very   important,  but   not                                                                    
     exclusively important, they are  just very important. I                                                                    
     think we've  done a pretty  good job  of it and  I just                                                                    
     wanted  to make  the  point  that if  you  can't get  a                                                                    
     permit to use water in  Alaska because if anything from                                                                    
     the  overburden to  this NEPA  process  which would  be                                                                    
     devised  by  significant  impacts then  it  becomes  an                                                                    
     exclusive  right   and  I  think  that   would  be  the                                                                    
     challenge we would have to go forward on.                                                                                  
3:49:29 PM                                                                                                                    
CHAIR MEYER noted  that a lot of Alaskan  communities like Juneau                                                               
have  hydro as  their main  source of  energy and  noted previous                                                               
testimony that doing  a major hydro project  under the initiative                                                               
might  be  impossible.  He asked  if  repairs,  modifications  or                                                               
expansions  to  existing  hydro projects  would  fall  under  the                                                               
COMMISSIONER  MACK  asked  to  go back  to  Senator  Coghill.  He                                                               
referenced Mr. Schade's affidavit,  [Chief of the Water Resources                                                               
Section, Alaska  Department of Natural Resources],  regarding the                                                               
issue of water-rights permits that says the following:                                                                          
     Will issue a water-right  permit if not unduly affected                                                                    
     the  right  of  prior appropriated  proposed  means  of                                                                    
     diversion  of construction  are adequate,  proposed use                                                                    
     of water  has been official and  proposed appropriation                                                                    
     is in the public interest.                                                                                                 
He  noted that  the  previous statement  was  a statutory  public                                                               
definition.  He continued  to address  the  criteria for  "public                                                               
interest" as defined in AS 46.15.080 (b) as follows:                                                                            
     Sec. 46.15.080  (b), criteria  for issuance  of permit,                                                                    
     in  determining the  public interest,  the commissioner                                                                    
     shall consider:                                                                                                            
          (1) the  benefit to  the applicant  resulting from                                                                    
     the proposed appropriation;                                                                                                
          (2) the effect of  the economic activity resulting                                                                    
     from the proposed appropriation;                                                                                           
          (3) the effect  on fish and game  resources and on                                                                    
     public recreational opportunities;                                                                                         
          (4) the effect on public health;                                                                                      
          (5) the effect of loss  of alternate uses of water                                                                    
     that  might be  made within  a reasonable  time if  not                                                                    
     precluded or hindered by the proposed appropriation;                                                                       
          (6)  harm  to  other persons  resulting  from  the                                                                    
     proposed appropriation;                                                                                                    
          (7)  the intent  and ability  of the  applicant to                                                                    
     complete the appropriation;                                                                                                
          (8) the effect upon access  to navigable or public                                                                    
COMMISSIONER MACK continued as follows:                                                                                         
     My point in reading these  eight criteria that are laid                                                                    
     out  in statute  is  to say  that  we've thought  about                                                                    
     these things, the Legislature has  put those words on a                                                                    
     piece  of paper,  we take  them very  seriously and  we                                                                    
     considered  those issues,  and it  is a  very difficult                                                                    
     process, and  we as  a state have  the ability  to make                                                                    
     determinations   and  when   we   see  concerns   being                                                                    
     expressed we can highlight those  concerns. When we see                                                                    
     a project  where we  can safely  mitigate and  the vast                                                                    
     majority of  the projects we  see are well  within that                                                                    
     category,  many of  them mentioned  here today,  we can                                                                    
     move forward with those  decisions, but public interest                                                                    
     is well covered in statute  and it is a balance between                                                                    
     our  appropriating  the  water  and  a  whole  list  of                                                                    
     criteria laid out in the affidavit.                                                                                        
3:52:16 PM                                                                                                                    
CHAIR  MEYER  asked  if  existing  hydro  projects  that  require                                                               
modifications,   changes  or   repairs  would   fall  under   the                                                               
initiative.  He  inquired  if   the  department  has  heard  from                                                               
communities  regarding  the  impact  from  the  initiative,  even                                                               
villages that need to replace culverts.                                                                                         
MR. MOSELLE replied as follows:                                                                                                 
     I think it  is similar to the questions  that have been                                                                    
     asked about  an existing  project that then  would come                                                                    
     under  the purview  of the  new law  if the  initiative                                                                    
     were to pass. I think  the answer remains the same that                                                                    
     if  the action  expands  beyond the  scope  of what  is                                                                    
     currently  permitted it's  the  understanding that  the                                                                    
     law would  be under  the purview of  the law  to review                                                                    
     those  expansions  under  an amendment  for  the  fish-                                                                    
     habitat permit.  So, if the  activity required  a fish-                                                                    
     habitat permit  and currently has  one and  they expand                                                                    
     the scope of their activity  they would need to go back                                                                    
     to the  department for an  amended or  new fish-habitat                                                                    
     permit if the law is  the initiative at that point that                                                                    
     would be  the law  that ADF&G would  have to  follow to                                                                    
     adjudicate that.                                                                                                           
CHAIR  MEYER reiterated  that  his question  was  if Mr.  Moselle                                                               
believed  that  the  communities  and  municipalities  know  what                                                               
impact the  initiative would have  on the projects  he previously                                                               
MR. MOSELLE replied that he did not have the information that                                                                   
Chair Meyer requested.                                                                                                          
CHAIR MEYER remarked that the communities and municipalities are                                                                
not asking.                                                                                                                     
3:54:18 PM                                                                                                                    
SENATOR WILSON asked what the difference was in the Title 46 and                                                                
Title 16, and if the new initiative changes Title 16. He                                                                        
continued as follows:                                                                                                           
     Right  now, DNR  has the  authority under  sort of  the                                                                    
     docks or  some of the  highways and airports.  How does                                                                    
     that  change? What  is the  trigger point  for them  to                                                                    
     comply with the new Title  16 changes which sort of has                                                                    
     [inaudible] authorities in Title 46?                                                                                       
COMMISSIONER MACK replied as follows:                                                                                           
     I  think there's  really a  greater issue  at play  and                                                                    
     here is the issue, we have  an obligation as a state to                                                                    
     responsibly  develop   our  resources.  We   take  very                                                                    
     seriously  our   obligation  to  make  sure   that  the                                                                    
     resources  we were  given access  to  at statehood  are                                                                    
     developed,   and  if   there's  another   agency  which                                                                    
     frustrates or bars  our ability as a  resource state to                                                                    
     continue  to maximize  the  value  of those  resources,                                                                    
     then  we  have in  my  mind  colliding authorities  and                                                                    
     those  colliding authorities  could have  a significant                                                                    
     impact on Alaska.                                                                                                          
     To try to answer how long  it will take to put together                                                                    
     a "reg" package,  I don't know. The "regs"  would be at                                                                    
     the Department  of Fish and  Game, we would  be looking                                                                    
     at  this and  evaluating  all of  the permutations.  We                                                                    
     would be  trying to  answer questions  about rights-of-                                                                    
     ways and things  like that, but at its core  if the DNR                                                                    
     is  not meeting  its  mandate and  we  are not  leasing                                                                    
     property or companies to go  and explore for oil, if we                                                                    
     cannot for  instance move in  and get the  permits that                                                                    
     we need  to develop or explore  then ultimately develop                                                                    
     [ANWR  1002 Area],  then I  have some  serious concerns                                                                    
     about  that  area right  now  based  on this,  then  we                                                                    
     really have  to sit down  and think hard about  what we                                                                    
     are doing as a state.                                                                                                      
3:56:46 PM                                                                                                                    
CHAIR  MEYER stated  that he  appreciated all  four commissioners                                                               
being at  the committee meeting.  He said  he did not  recall the                                                               
Senate State  Affairs committee having four  commissioners at one                                                               
of  its hearings.  He  opined  that the  appearance  of the  four                                                               
commissioners  show  the  importance  of the  initiative  to  the                                                               
administration and to the State of Alaska.                                                                                      
SENATOR GIESSEL commented as follows:                                                                                           
     What   is  also   striking,   and   I  appreciate   the                                                                    
     highlighting, how  these departments work  together and                                                                    
     have  been  working  together collaboratively  to  make                                                                    
     sure everybody is  doing their part to  protect all our                                                                    
     resources, most effectively fish.                                                                                          
3:58:05 PM                                                                                                                    
LARRY  HARTIG, Commissioner,  Alaska Department  of Environmental                                                               
Conservation (DEC),  Juneau, Alaska, provided an  overview of the                                                               
department's duties as follows:                                                                                                 
     DEC's  duties  and  authorities to  set  water  quality                                                                    
     standards   and  to   issue  permits   authorizing  the                                                                    
     discharge of waste  water into the waters  of the state                                                                    
     are  found in  Title  46 of  the  Alaska statutes,  and                                                                    
     similar  to  the testimony  you  heard  from DNR,  even                                                                    
     though  the initiative  wouldn't  change provisions  in                                                                    
     Title 46,  it's limited to certain  provisions in Title                                                                    
     16,  it  would however  affect  DEC's  exercise of  its                                                                    
     duties under  Title 46, and  it could do these  in ways                                                                    
     that  would   also  impact  our  operating   budget  as                                                                    
     detailed  in the  cost statement  that we  prepared for                                                                    
     the initiative.                                                                                                            
     We  understand that  the committee  of  course is  also                                                                    
     interested   in  what   potential   cost  impacts   the                                                                    
     initiative might  have on our permittees  so people who                                                                    
     have  waste water  discharge  permits  from us,  that's                                                                    
     harder for  us to estimate for  several reasons. First,                                                                    
     it could impact people that  get permits in the future,                                                                    
     we  can't  really forecast  who  might  come in  for  a                                                                    
     permit, what  their project might  look like,  what the                                                                    
     requirements of  that permit  might look  like. Second,                                                                    
     it could impact people who  have permits now. Our waste                                                                    
     water  discharge permits  have  a life  of five  years,                                                                    
     typically, they  come up for  renewal every  five years                                                                    
     and  so  when  that  permit comes  up  through  renewal                                                                    
     similar to  DNR's testimony, we  would be  applying the                                                                    
     current law in  looking at the renewal  of that permit,                                                                    
     and if the initiative passed  we would look at what new                                                                    
     requirements might have  to be put into  that permit as                                                                    
     a result  of the  initiative provisions and  that could                                                                    
     then impact  permittees and they  would have  to either                                                                    
     perhaps  adjust their  discharge  or  add treatment  or                                                                    
     something like that.                                                                                                       
     So,  we don't  have a  detailed cost  estimate or  cost                                                                    
     estimates for that,  but in our testimony,  we will try                                                                    
     to describe some circumstances where that could arise.                                                                     
4:00:38 PM                                                                                                                    
ANDREW   SAYERS-FAY,   Director,   Division  of   Water,   Alaska                                                               
Department   of  Environmental   Conservation,  Juneau,   Alaska,                                                               
commented  on  how  Ballot Measure  1  will  affect  departmental                                                               
activities as follows:                                                                                                          
     In making  the connection  to how this  initiative will                                                                    
     affect activities that DEC is  responsible for and then                                                                    
     for  people who  apply  for  permits or  authorizations                                                                    
     from   DEC,  the   main  connection   is  through   the                                                                    
     connection  with or  water quality  standards and  fish                                                                    
     protection,  and   then  that   plays  out   with  this                                                                    
     authorization. So,  I will start with  a description of                                                                    
     our   water  quality   standards  to   give  you   that                                                                    
He addressed page 2 in his presentation, "Alaska Water Quality                                                                  
Standards (WQS)" as follows:                                                                                                    
   • Protect public health and the environment through:                                                                         
        o Designation and protection of water uses, such as                                                                     
          growth and propagation of aquatic life;                                                                               
        o Establishing acceptable levels of pollutants (known as                                                                
          water quality criteria);                                                                                              
        o Enhanced review for high quality waters.                                                                              
   • Set through a public process with review by U.S.                                                                           
     Environmental Protection Agency (EPA).                                                                                     
   • EPA leads consultation on endangered species, fisheries                                                                    
     issues under the Magnuson-Stevens Act, and with tribes.                                                                    
   • Used to prevent polluted water, identify polluted waters,                                                                  
     and recognize clean water.                                                                                                 
   • Identified at 18 AAC 70.                                                                                                   
4:04:22 PM                                                                                                                    
MR. SAYERS-FAY addressed page 3, "National Pollutant Discharge                                                                  
Elimination System (NPDES) Framework" as follows:                                                                               
   • Clean Water Act & Amendments:                                                                                              
        o Established the NPDES Program (Section 402):                                                                          
             square4 Point sources of   wastewater    discharging                                                               
               pollutants into waters of the United States                                                                      
               require a NPDES permit.                                                                                          
        o Authorization of State Programs.                                                                                      
He addressed page 4, "Primacy Transfer and APDES Framework" as                                                                  
   • The State's wastewater discharge program under the Clean                                                                   
     Water Act is called the Alaska Pollutant Discharge                                                                         
     Elimination System (APDES) Program.                                                                                        
   • Statutory authority is provided in Alaska Statute 46.03.                                                                   
   • Implementing regulations are provided in 18 AAC 83.                                                                        
He addressed page 5, "APDES Permit Development Process" as                                                                      
   • Receive complete permit application.                                                                                       
   • Evaluate potential impacts to receiving water quality from                                                                 
     the proposed wastewater discharge:                                                                                         
        o Consider pollutants, flow, seasonality, and fish                                                                      
        o For   discharges   to    freshwater,   review   ADF&G's                                                               
          Anadromous Waters Catalog to determine if the                                                                         
          waterbody is listed:                                                                                                  
             square4 Consult with ADF&G and applicant on spawning                                                               
               determination if discharge is to an anadromous                                                                   
He addressed page 6, "Fish Spawning Determination-Impacts" as                                                                   
   • In fish spawning areas, wastewater discharge not eligible                                                                  
     for mixing zone per Alaska water quality standards:                                                                        
        o Mixing zone is a limited area in the waterbody where                                                                  
          wastewater is allowed to mix with the ambient water                                                                   
          before meeting water quality criteria.                                                                                
   • Without a mixing zone, state water quality criteria must be                                                                
     met at end of discharge pipe.                                                                                              
MR. SAYERS-FAY  referenced a diagram  on page 6 that  provided an                                                               
example of mixing zones for aquatic  life in a lake. He explained                                                               
that the  diagram showed  the outfall from  a discharge  pipe had                                                               
two areas, the  noted initial "Acute Aquatic  Life Criteria Met,"                                                               
and  the "Chronic  Aquatic Life  Criteria Met"  and detailed  the                                                               
requirements for the two mixing areas.                                                                                          
He  summarized that  whatever  is discharged  for  the pipe  that                                                               
exceeds  the water  quality criteria  as it  goes into  the water                                                               
must mix  rapidly and appropriately  so that  it is not  going to                                                               
have an effect on the water bodies.                                                                                             
4:08:14 PM                                                                                                                    
He continued as follows:                                                                                                        
     The  key  significance  of   this  initiative  is  that                                                                    
     there's   a  connection   between  our   water  quality                                                                    
     standards which  say we can't  authorize a  mixing zone                                                                    
     if  it's  a  spawning  area and  our  reliance  on  the                                                                    
     anadromous water  catalog to say is  this an anadromous                                                                    
     water therefore  you can't have  a mixing zone  and the                                                                    
     applicant will  have to do  more work to clean  up what                                                                    
     they  are  discharging  and  the  significance  of  the                                                                    
     potential implications  for them later, but  that's the                                                                    
     Earlier   there  was   a  discussion   about  potential                                                                    
     overlapping  authorities between  some of  the agencies                                                                    
     that were here today. DEC  is setting standards for the                                                                    
     water   quality.   DNR   is   setting   standards   and                                                                    
     requirements if  you want to  take water out or  use it                                                                    
     and they  obviously want  to do that  in a  manner that                                                                    
     does not  affect water qualities  today, but  ADF&G may                                                                    
     notify   DEC;  and   ADF&G  obviously   has  the   fish                                                                    
     protection  prospective and  ,  in fact  and they  have                                                                    
     much  more expertise  in that,  so that  is why  DEC is                                                                    
     relying upon them.                                                                                                         
     So, a  change to how  ADF&G operates saying  under this                                                                    
     initiative that  all waters  are anadromous  means that                                                                    
     essentially all waters can no  longer have mixing zones                                                                    
     from DEC's prospective for this water permit.                                                                              
He addressed page 7, "Standard  Provision in an APDES Permit" and                                                               
referenced as follows:                                                                                                          
   • Permit is a legal document like a contract.                                                                                
   • Limitations (numeric and narrative) on discharge.                                                                          
   • Best management practices or operational plans.                                                                            
   • Monitoring and record keeping requirements.                                                                                
   • Reporting under penalty of perjury.                                                                                        
   • Standard conditions:                                                                                                       
        o Duty to comply,                                                                                                       
        o Duty to allow DEC on-site for inspections.                                                                            
MR. SAYERS-FAY referenced page 8, "APDES Permit Document                                                                        
Reviews" as follows:                                                                                                            
   • Preliminary draft permit shared with permittee and state &                                                                 
     federal agencies for 10-day review period.                                                                                 
   • Draft permit and supporting documents are public noticed                                                                   
     for a minimum of 30-days:                                                                                                  
        o Major permits are public noticed in a newspaper of                                                                    
          local circulation;                                                                                                    
        o Public meetings and hearings may occur.                                                                               
   • Proposed final permit shared with permittee and state &                                                                    
     federal agencies for 5-day review prior to issuance.                                                                       
He referenced page 9, "APDES Permit Issuance and Administrative                                                                 
Appeal" as follows:                                                                                                             
   • Wastewater discharge permit issued for a term up to five                                                                   
   • Upon issuance, permits may be administratively or                                                                          
     judicially appealed.                                                                                                       
4:11:21 PM                                                                                                                    
He referenced page 10, "Compliance with APDES Permits" as                                                                       
   • During the permit term, DEC will periodically:                                                                             
        o Inspect the treatment facility and discharge site;                                                                    
        o Review on-site records and submitted monitoring                                                                       
        o Permittees are required to timely notify DEC of                                                                       
          noncompliance events that potentially threatens public                                                                
          health or the environment.                                                                                            
        o DEC can reopen, modify or terminate a permit.                                                                         
He referenced page 11, "Fiscal Impacts to DEC Relating to the                                                                   
Potential Passage of 17FSH2" as follows:                                                                                        
   • Rebuttable presumption that all waters in Alaska are                                                                       
     anadromous, and therefore no mixing zone per State water                                                                   
     quality standards (WQS).                                                                                                   
   • DEC statutorily required to review all existing permits                                                                    
     with mixing zones in freshwater.                                                                                           
   • For new systems, or at renewal for existing, would need to                                                                 
     meet water quality standards at the end of discharge pipe:                                                                 
        o Increased complexity for engineering plan review;                                                                     
        o More stringent permit limits.                                                                                         
   • Cost statement includes a new permit writer and new                                                                        
4:14:02 PM                                                                                                                    
MR. SAYERS-FAY commented as follows:                                                                                            
     One of  the key questions  about the initiative  is its                                                                    
     unknown right now what kind  of schedule we could allow                                                                    
     for an  existing facility to  come into  compliance and                                                                    
     we would have  to consult with the  attorney general on                                                                    
     things like that.                                                                                                          
     For a new project if they  are not one that is going to                                                                    
     startup right away, if they are  a year or two down the                                                                    
     road  with  statutory  requirements that  change,  they                                                                    
     have some opportunity  to work with ADF&G,  see if they                                                                    
     can  get a  site-specific  review, it  may  or may  not                                                                    
     really be anadromous,  there might be time  to do that.                                                                    
     If they  are a  new project that  is an  immediate need                                                                    
     then they are  just going to have to assume  that it is                                                                    
     anadromous and that's going to  affect them in the cost                                                                    
     and design of their project.                                                                                               
     We  don't have  a sense  right now  as to  what ADF&G's                                                                    
     process  would be.  Proving the  negative that  there's                                                                    
     never anadromous  fish there is much  harder than going                                                                    
     out to see  if they do occur, so  that's something they                                                                    
     would have  to develop. We  don't know whether  we have                                                                    
     the discretion  on a renewal  to delay and  allow ADF&G                                                                    
     to  do a  proper analysis  which DOT  talked about,  it                                                                    
     takes several  years, those  two-time frames  might not                                                                    
     As a result, most applicants  either new or if they are                                                                    
     up  for renewal  is probably  going to  have to  assume                                                                    
     that they now  need to meet water  quality standards at                                                                    
     the end of the pipe, and  for a lot industries that's a                                                                    
     very dramatic change of how  business is operated right                                                                    
     now and that would have a  cost for them and that would                                                                    
     have  time  for  them  to investigate  how  that  would                                                                    
4:15:49 PM                                                                                                                    
CHAIR  MEYER  noted that  Senator  Hughes  called in  a  question                                                               
regarding how  often water-sewer  facilities must be  renewed. He                                                               
recalled  that renewal  was typically  five years  and a  renewal                                                               
that came up  after the new initiative passed would  have to meet                                                               
the new initiative's standards.                                                                                                 
MR. SAYERS-FAY answered correct.                                                                                                
CHAIR MEYER  asked Mr. Sayers-Fay  to address private  homes that                                                               
are  not on  public-water systems  and rely  on septic  tanks. He                                                               
asked  if the  new  initiative would  affect  private homes  with                                                               
septic tanks that can leech into the ground.                                                                                    
MR. SAYERS-FAY answered  that there is a subset  of private homes                                                               
with septic  tanks that could  be affected by the  initiative. He                                                               
specified that the most immediate  effect would be if the private                                                               
home  had a  direct discharge  to a  surface-water body  and that                                                               
would come  under the APDES program;  a domestic home that  has a                                                               
septic tank  would not have that  kind of coverage, so  that home                                                               
would not be affected. He continued as follows:                                                                                 
     What could come  up would be is if you  have, and there                                                                    
     are a lot of areas in  the state where there's a lot of                                                                    
     connection  between shallow  ground  water and  surface                                                                    
     water bodies, and if there  is some measured impairment                                                                    
     in that  water body, that  is the type  of contaminants                                                                    
     that  would  be  in  the septic  system,  and  if  that                                                                    
     particular  contaminant  is  something  that  ADF&G  is                                                                    
     concerned   about    for   anadromous    fish   habitat                                                                    
     protection,   I  think   that  the   language  in   the                                                                    
     initiative would cause ADF&G to  take a broader look at                                                                    
     those types of issues and  it might lead to saying, "We                                                                    
     can't have  anymore added to this  potential problem of                                                                    
     septic  systems in  a shallow  groundwater system  that                                                                    
     seems to be  having [inaudible] about it."  So, I would                                                                    
     say  it  would be  a  much  smaller universe,  but  the                                                                    
     potential is there.                                                                                                        
CHAIR MEYER asked if the initiative could affect landfills.                                                                     
MR. SAYERS-FAY answered that some  landfills could be affected by                                                               
the initiative and detailed as follows:                                                                                         
     Landfills  have  a  different series  of  permits.  The                                                                    
     Division  of Water  does issue  solid waste  permits in                                                                    
     relationship  to mines.  There's  a different  division                                                                    
     that deals  with your more typical  landfill operation,                                                                    
     but  if that  landfill operation,  as many  do, have  a                                                                    
     leachate collection  system where water  is percolating                                                                    
     through the landfill  if it's not lined  and that water                                                                    
     is  collected and  then has  a discharge  to a  surface                                                                    
     waterbody, they would need an  APDES permit and so they                                                                    
     could become affected by this initiative.                                                                                  
4:18:41 PM                                                                                                                    
CHAIR MEYER remarked that the initiative has a broad reach.                                                                     
SENATOR WILSON noted that there are  a couple of waterways in the                                                               
Mat-Su Valley  where people are  arguing about water  quality due                                                               
to septic tanks. He asked  how many mix-water-zone entities there                                                               
are that have permits currently in the state.                                                                                   
MR. SAYERS-FAY  answered that he  would have  to get back  on the                                                               
exact  number.  He noted  an  earlier  question regarding  septic                                                               
systems and reiterated that septic  systems would not have mixing                                                               
SENATOR WILSON asked  how the initiative would  affect the cruise                                                               
ships' water discharge.                                                                                                         
MR. SAYERS-FAY answered as follows:                                                                                             
     Our understanding  of the initiative, and  it's subject                                                                    
     to going  back and reading  the language because  it is                                                                    
     fairly broad, is that it  is intended to apply to fresh                                                                    
     waters and  so that would  not affect the  cruise ships                                                                    
     operating in  marine waters; but,  the language  of the                                                                    
     initiative is,  there is brackish waters  when you have                                                                    
     that transition  and if  you are  in a  port and  you a                                                                    
     stream coming  in and  things we  would have  to double                                                                    
     check just to make sure that is the case.                                                                                  
SENATOR WILSON replied as follows:                                                                                              
     But if the  language is broad enough  as the Department                                                                    
     of Law said  that there is no determination  of how far                                                                    
     in the  termination of the  water definitions  and that                                                                    
     could  be so  that  cruise ships  could be  potentially                                                                    
     stopped  from  discharging  waste water  within  Alaska                                                                    
     waterways, all Alaska waterways.                                                                                           
MR. SAYERS-FAY answered as follows:                                                                                             
     My recollection  is the  references that  I'm referring                                                                    
     to under  the water-quality standards about  the mixing                                                                    
     zones  are  specifically  for  freshwater  environment,                                                                    
     that's where we  are referring back to  saying that you                                                                    
     cannot have a mixing zone in  a spawning area and so we                                                                    
     don't  have the  same kind  of language  in the  marine                                                                    
     environment and  I can double-check that.  So, although                                                                    
     the  [Department  of  Law] has  said  the  initiative's                                                                    
     scope  may be  marine  waters, it's  the  scope of  our                                                                    
     water  quality standards  that  makes the  intersection                                                                    
     with the initiative and so I think that's different.                                                                       
4:21:17 PM                                                                                                                    
SENATOR COGHILL addressed rainwater discharge as follows:                                                                       
     One of the things we have  done over the last number of                                                                    
     years is rain  water discharge, mitigation improvements                                                                    
     and up in  the Interior all of water runs  off into the                                                                    
     Chena or the  Tanana River, but we've done  quite a bit                                                                    
     of work on trying to  make sure that sediment and other                                                                    
     things are  taken care of.  How would this  impact that                                                                    
     because  I have  four  or five  streams  that would  be                                                                    
     impacted  by any  rainwater  discharge  and those  have                                                                    
     some impact, and  this just raises a  question from me,                                                                    
     it  will impact  fish probably,  minimally, but  I know                                                                    
     that we've gone through quite  a process on doing that.                                                                    
     Are we gauged  by city size? Are we  gauged by economic                                                                    
     capacity on rain water discharge?                                                                                          
MR. SAYERS-FAY answered as follows:                                                                                             
     There are a couple of  elements to the answer, first of                                                                    
     all, ADF&G within the language  of the initiative would                                                                    
     have  a pretty  broad requirement  to consider  whether                                                                    
     that  is  causing  any impact,  so  their  fish-habitat                                                                    
     permits may very well come into play there.                                                                                
     For DEC, there's  a distinction in the  Clean Water Act                                                                    
     between  what is  called  non-point  sources and  point                                                                    
     sources,  so  in a  simple  way  if  you have  a  water                                                                    
     treatment  facility with  a pipe  coming  out, you  can                                                                    
     think of  that as  a point  source, but  the boundaries                                                                    
     are  blurred,  so  if  you  have  a  construction  site                                                                    
     because that's  a human activity that  you have control                                                                    
     over during the building site  and you have the ability                                                                    
     to   manage  the   water  runoff,   that  is   actually                                                                    
     considered  a point  source, though  when you  consider                                                                    
     all  of  the  rain  flowing  off  of  people's  rooftop                                                                    
     houses, that's  considered a non-point source.  For our                                                                    
     water-quality  standards for  the  type  of permit  you                                                                    
     would  need where  the mixing  zone question  comes up,                                                                    
     that would only  be for a point source.  So, in general                                                                    
     that would not  occur, but there are, when  you get to,                                                                    
     as you alluded to, when you  get to a certain size of a                                                                    
     community, so  Anchorage and  Fairbanks you  would have                                                                    
     what  is  called a  municipal-stormwater-separate-sewer                                                                    
     system, you  end up sort of  at a scale that  is deemed                                                                    
     to  be  that  you  can have  enough  influence  on  the                                                                    
     discharge  of things  like stormwater,  so then  you do                                                                    
     need a permit  and then it would be  subject to whether                                                                    
     or not you would have a mixing zone.                                                                                       
4:24:00 PM                                                                                                                    
SENATOR COGHILL commented as follows:                                                                                           
     You take  for example  Nenana, which I  grew up  in, we                                                                    
     are not  going to be  a municipal although they  have a                                                                    
     water system, they don't have  the discharge system, or                                                                    
     Tanana or Fort  Yukon. We live right on  the streams of                                                                    
     migrating fish  and the impacts  would be  something. I                                                                    
     would  think that  small communities  might want  to be                                                                    
     aware of what they do  from dumping snow into the river                                                                    
     to rainwater  run-off, or irrigation ditches  for small                                                                    
     farms,  things  like  that.  I   just  think  that  the                                                                    
     presumption creates a huge definition problem.                                                                             
SENATOR  GIESSEL   referenced  slides  9   and  10  in   the  DEC                                                               
presentation. She noted  that on slide 9,  "APDES Permit Issuance                                                               
and Administrative Appeal," and  specified that the bullet point,                                                               
"Upon  issuance, permits  may be  administratively or  judicially                                                               
appealed." She asked Mr. Sayers-Fay  to explain what the previous                                                               
statement meant  and to confirm  that the statement was  what was                                                               
presently being done by DEC.                                                                                                    
MR. SAYERS-FAY answered yes and explained as follows:                                                                           
     There  are  a  number   of  public-comment  periods  of                                                                    
     different  lengths where  different people  are allowed                                                                    
     to comment  at that  stage in the  process, but  by the                                                                    
     time you get to  issuance, if you've been participating                                                                    
     in that public process  there are two opportunities for                                                                    
     you  to  appeal  the  decision. There  is  an  informal                                                                    
     appeal to the  director of the division,  which in this                                                                    
     case  is myself.  There is  also a  more formal  appeal                                                                    
     process to  the commissioner  of the  department, which                                                                    
     would be  Commissioner Hartig, but there  is a question                                                                    
     of standing  and so you  have to have raised  the issue                                                                    
     that you feel  was not adequately addressed  and in the                                                                    
     permit  you  would  have  to  have  commented  on  that                                                                    
     through the process and you  have to have participated,                                                                    
     then  depending  on  which  path  you  are  on  there's                                                                    
     different regulations about the  timing and how that is                                                                    
     resolved.   If  it   is  at   the   formal  level   the                                                                    
     commissioner can make a determination  as to whether or                                                                    
     not things like  it gets sent back to  the division for                                                                    
     adjustment or  there's an  adjudicatory hearing  on the                                                                    
     topic or  there's a decision  about, "Four  issues were                                                                    
     raised  and two  issues were  not previously  raised so                                                                    
     they are  not pertinent,  one not appropriate,  but one                                                                    
     still needs to  be resolved," so it can go  a number of                                                                    
     different directions.                                                                                                      
4:26:39 PM                                                                                                                    
SENATOR GIESSEL replied as follows:                                                                                             
     What  I'm wanting  to call  out here  is the  fact that                                                                    
     there actually  is lots of  opportunity for  the public                                                                    
     to  engage in  this permitting  process. So  then as  I                                                                    
     look  at  slide 10,  the  last  bullet says,  "DEC  can                                                                    
     reopen, modify  or terminate a  permit." So,  it sounds                                                                    
     like  what you  are saying  on this  slide is  that you                                                                    
     continue  to  monitor  and   inspect,  and  if  there's                                                                    
     violations you take action. Is that accurate?                                                                              
MR. SAYERS-FAY answered as follows:                                                                                             
     Yes, that is  accurate. We often refer to  what we call                                                                    
     an  escalating  enforcement  response, we  would  start                                                                    
     with  compliance assistance,  we would  help put  their                                                                    
     documents  in order,  make  sure  that they  understand                                                                    
     that we take  a sample to see if  it's not contaminated                                                                    
     so that we  understand the result is  accurate, all the                                                                    
     way up  to pursuing  civil penalties and  other things,                                                                    
     and  or going  through  some of  these  items that  are                                                                    
     mentioned   in  the   last   bullet  about   reopening,                                                                    
     modifying  the permit,  and there  are formal  steps to                                                                    
     that and opportunities for the  public to comment if we                                                                    
     are changing a permit.                                                                                                     
CHAIR  MEYER  remarked  that DEC  is  constantly  updating  their                                                               
regulations  pertaining to  fish  and protecting  fish. He  noted                                                               
that he  had heard that the  state is using regulations  that are                                                               
over 60 years old and asked for Mr. Sayers-Fay to comment.                                                                      
MR. SAYERS-FAY answered as follows:                                                                                             
     I  think it  is a  better  question for  ADF&G but  one                                                                    
     thing I  will mention is  that through the  Clean Water                                                                    
     Act various new  information comes up about  what is an                                                                    
     appropriate   water  quality   criteria   and  EPA   is                                                                    
     constantly  issuing   recommended  criteria   and  then                                                                    
     states have  a period  of time in  which to  review and                                                                    
     figure out  how they are  going to apply that  in their                                                                    
     state and  if they  don't act  within a  certain window                                                                    
     then  EPA  can come  in.  So,  revisions to  the  water                                                                    
     quality  standards either  to protect  human health  or                                                                    
     other  uses  beyond  fish  or for  fish,  they  do  get                                                                    
     updated over time.                                                                                                         
4:28:55 PM                                                                                                                    
CHAIR  MEYER  asked to  address  representatives  from ADF&G.  He                                                               
noted that  the fish-habitat  rules have not  been updated  for a                                                               
long time and that was the  reason for the initiative. He pointed                                                               
out that during  the meeting the fish-habitat's  rules were noted                                                               
as having been  strengthened on an ongoing basis.  He asked ADF&G                                                               
to confirm his previous statement.                                                                                              
MR. BENKERT answered as follows:                                                                                                
     Yes, although [AS 16.05.871]  hasn't changed since 1962                                                                    
     it's not  like we are  permitting the same way  that we                                                                    
     were in  1962. We've  continuously evolved  our process                                                                    
     over the years,  some examples of that  are I mentioned                                                                    
     blasting,  we just  blew up  the Eklutna  Dam. We  have                                                                    
     sent  folks out  in the  field, our  Juneau office  has                                                                    
     done  a  really good  job  of  developing new  blasting                                                                    
     standards  up to  modern standards,  they went  out and                                                                    
     measured  a  bunch  of blasts,  they  developed  a  new                                                                    
     criteria  as  to  what  is allowable  so  that  we  can                                                                    
     protect incubating  eggs and  juvenile fish in  a water                                                                    
     body so there  are certain distances and  it's a fairly                                                                    
     technical  thing  but  that was  recently  updated  and                                                                    
     that's a  new standard  that we  utilize to  inform our                                                                    
     permitting decisions.                                                                                                      
     Another good example is working  with [DOT&PF], we have                                                                    
     an MOU  with them  for culvert designs,  that MOU  is a                                                                    
     little bit old now, but  we are currently updating that                                                                    
     MOU to modern standards; those  are the types of things                                                                    
     that  we've developed  to  help  inform our  permitting                                                                    
     decisions utilizing the  best available information and                                                                    
     the most  modern information possible. We  have lots of                                                                    
     technical  reports,   we  go  out  there   and  conduct                                                                    
     research  to determine  what  impacts  are, we've  done                                                                    
     research on impacts of plaster  mining for instance, we                                                                    
     go out and look at the  turbidity plume coming out of a                                                                    
     plaster-mining  operation, how  it also  kind of  feeds                                                                    
     into the  DEC presentation  where we  see how  far down                                                                    
     that turbidity plume  goes and see how  much it impacts                                                                    
     anadromous fish or even  resident fish. Anadromous fish                                                                    
     streams  they  supposed  to have  zero  discharge,  but                                                                    
     those  are just  some  examples. We  also have  working                                                                    
     guidelines  that  we use  for  our  permitters to  help                                                                    
     inform their permitting decisions,  so it's kind of our                                                                    
     manual  as  to  how  we go  about  issuing  permits  on                                                                    
     certain situations.                                                                                                        
     So,  it's  an  ever-evolving  thing, when  we  get  new                                                                    
     information,  we  try  to  incorporate  that  into  our                                                                    
     working  guidelines so  that we  are  meeting the  most                                                                    
     modern  standards that  are available.  We are  looking                                                                    
     all of  the time to  improve the process  and obviously                                                                    
     we do not permit today the  same way we did in 1962, we                                                                    
     take  a  lot  more  things into  consideration  as  the                                                                    
     knowledge in the field continues to develop.                                                                               
4:32:28 PM                                                                                                                    
CHAIR MEYER remarked that salmon  is very important in Alaska and                                                               
is something that  ADF&G takes very seriously,  as everyone does.                                                               
He asked  if ADF&G considered Alaska  as a leader as  it pertains                                                               
to fish and habitat management.                                                                                                 
MR.   BENKERT  answered   yes.  He   provided  examples   of  the                                                               
department's  use of  Pacific  Northwest  and worldwide  research                                                               
that is used  in Alaska's projects. He added  that the previously                                                               
noted   culvert   assessment  program   is   an   example  of   a                                                               
collaborative  effort with  federal and  state agencies  for fish                                                               
passage in the Mat-Su Valley.                                                                                                   
CHAIR MEYER reiterated that the committee's meeting is unusual                                                                  
where four commissioners are in attendance and commented as                                                                     
     I think we are realizing  how important this initiative                                                                    
     is,  not  only to  the  state  but our  municipalities,                                                                    
     villages and homes, perhaps.                                                                                               
He asked committee members for their closing statements.                                                                        
4:35:50 PM                                                                                                                    
SENATOR WILSON commented as follows:                                                                                            
     This  topic has  sort of  opened up  sort of  the large                                                                    
     impact it has  for a lot of industries, a  lot of folks                                                                    
     just think it  is oil and gas, mining type  of piece of                                                                    
     legislation but  it really affects  what I see  as sort                                                                    
     of    local     municipalities,    airlines,    housing                                                                    
     developments, harbors,  tourism, highway  projects, and                                                                    
     fish  improvement projects,  and  this is  just a  wide                                                                    
     spanning  ballot initiative  that I  hope folks  take a                                                                    
     closer look at overall together.                                                                                           
4:36:32 PM                                                                                                                    
SENATOR GIESSEL commented as follows:                                                                                           
     One of the things that a  lot of times we hear from the                                                                    
     public  is "Oh,  state government,  those people  don't                                                                    
     know what they are doing,"  I think today we really saw                                                                    
     an  example of  some  very knowledgeable  commissioners                                                                    
     but  frankly,  some  even more  knowledgeable  division                                                                    
     directors  and  specialists  in their  departments  who                                                                    
     really know these subject and  are working hard to make                                                                    
     Alaska's standards the highest in  the U.S. I just want                                                                    
     to thank  all of you  for your hard  work. Commissioner                                                                    
     Hartig of  course has been  in his position  for coming                                                                    
     on 10  years, pretty  impressive, certainly  gathered a                                                                    
     lot of  knowledge in  those years. So,  I just  want to                                                                    
     thank all  of the commissioners and  division directors                                                                    
     and folks that spoke today.                                                                                                
4:37:20 PM                                                                                                                    
SENATOR COGHILL commented as follows:                                                                                           
     One of the  things that we found out  today was there's                                                                    
     a lot  of breadth or  broadness in this  initiative and                                                                    
     ambiguity in some  of the definitions, that  is a place                                                                    
     that the  courts will end  up having to  define because                                                                    
     it will  be two years before  we can even look  at them                                                                    
     which  means the  departments  will  have to  implement                                                                    
     things that they will end  up in the courts with before                                                                    
     the  Legislature really  can take  a look  at it  and I                                                                    
     think  that  speaks to  why  a  legislative process  is                                                                    
     better  in some  of these  more technical,  very highly                                                                    
     protective important parts of our habitat issues.                                                                          
     I think the people of  Alaska hopefully will get a look                                                                    
     at the  fact that the  legislative process is  a little                                                                    
     better at asking  how and why, and if you  are going to                                                                    
     go to  court, the court will  come in and look  at what                                                                    
     did you  mean when  you said  that, at  this particular                                                                    
     point it  is a  wide open discussion  on what  did they                                                                    
     mean because you don't have them in front of you.                                                                          
     I think today we got a  good indication of how we would                                                                    
     implement if  it comes  your way and  what some  of the                                                                    
     issues are,  but for me  as a legislator  the ambiguity                                                                    
     is   striking  and   many  times,   we  have   to  make                                                                    
     compromises that  create ambiguity  but at  least we've                                                                    
     had the debate  in public on what  that question really                                                                    
     is. Probably as the  judiciary chairman I probably fall                                                                    
     into  that litigation  problem, but  the reality  is in                                                                    
     Alaska any project is going  to face litigation and the                                                                    
     more  ambiguity  you  have  in this  law  or  the  more                                                                    
     breadth   you   have   in  it,   the   more   open   to                                                                    
     interpretation  it is  and contention.  So, that's  the                                                                    
     way  I take  it  today,  but I  do  want  to thank  the                                                                    
     department,  I think  they are  facing  into this  very                                                                    
4:39:21 PM                                                                                                                    
CHAIR MEYER commented as follows:                                                                                               
     I too want  to thank everyone for coming  out today and                                                                    
     I  certainly have  learned a  lot and  I've been  doing                                                                    
     this  for a  while. Hopefully  the public  as well  has                                                                    
     learned that your process is  a very public process and                                                                    
     very open and one that  you take very seriously, and we                                                                    
     appreciate that too. We all  live here in the state and                                                                    
     we all love our fish and our salmon.                                                                                       
4:40:04 PM                                                                                                                    
SENATOR EGAN thanked those that testified and noted that he                                                                     
enjoyed the overview.                                                                                                           
CHAIR MEYER announced that the committee does not have any other                                                                
meetings planned and the committee will wait and see what occurs                                                                
in the courts and go from there.                                                                                                
4:40:26 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Meyer adjourned the Senate State Affairs Committee at 4:40                                                                

Document Name Date/Time Subjects
SSTA Agenda 7.20.2018.pdf SSTA 7/20/2018 1:30:00 PM
17FSH2 Bill Initiative.pdf SSTA 7/20/2018 1:30:00 PM
17FSH2 Title and Ballot Language.pdf SSTA 7/20/2018 1:30:00 PM
LAA Legal Services Memo 7.11.2018 RE 17FSH2 Initiative.pdf SSTA 7/20/2018 1:30:00 PM
ADFG Presentation 7.20.2018.pdf SSTA 7/20/2018 1:30:00 PM
DOT Presentation 7.20.18.pdf SSTA 7/20/2018 1:30:00 PM
DNR Presentation 7.20.18.pdf SSTA 7/20/2018 1:30:00 PM
DEC Presentation 7.20.18.pdf SSTA 7/20/2018 1:30:00 PM