HB 138-NATIONAL RESOURCE WATER DESIGNATION  2:13:12 PM CO-CHAIR TARR announced that the final order of business would be HOUSE BILL NO. 138, "An Act requiring the designation of state water as outstanding national resource water to occur in statute; relating to management of outstanding national resource water by the Department of Environmental Conservation; and providing for an effective date." 2:13:41 PM The committee took an at-ease from 2:13 p.m. to 2:15 p.m. 2:15:32 PM REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, sponsor, introduced HB 138. He testified the bill would clarify that the designation of Outstanding National Resource Waters, also known as designated Tier 3 waters, would be accomplished by the legislature through statute. He said the Alaska constitution places the responsibility for significant land and water use decisions in the hands of the legislature. He read from Article VIII of the constitution, Section 7, Special Purpose Sites, which states: "The legislature may provide for the acquisition of sites, objects, and areas of natural beauty or of historic, cultural, recreational, or scientific value. It may reserve them from the public domain and provide for their administration and preservation for the use, enjoyment, and welfare of the people." He also read from Article VIII, Section 2, General Authority, which states: "The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people." REPRESENTATIVE KOPP said a good example of this constitutional mandate in practice is the 118 state legislatively designated areas in Alaska, which includes refuges, sanctuaries, critical habitat areas, special management areas, forests, parks, recreation areas, preserves, public use areas, recreation rivers, and recreation mining areas, which total nearly 12 million acres. Each of these areas, he stated, was designated by legislative approval, not an agency executive approval process. He said Alaska's voters have clearly spoken on what they believe the ultimate authority should be with land and water use designation process. This was seen in 2014, he specified, when voters approved the Bristol Bay Forever Initiative by a margin of nearly 4:1, which gave the legislature the final say in whether to allow the development of large scale mining projects in the Bristol Bay Area. He said HB 138 would simply continue this strong precedent of ensuring significant land and water use decisions, in this case Tier 3 waterbody designation, resides in the hands of the legislature. REPRESENTATIVE KOPP stated that Tier 3 designation bestows the highest level of water quality protection under the federal Clean Water Act such waters are deemed the highest ecological and recreational importance. He related that in 1983 the Environmental Protection Agency (EPA) defined Tier 3 waters to be exceptional ecological and recreational significance and that their water quality be maintained and protected from degradation in perpetuity. He said the EPA further mandated that each state establish a process for designating these Outstanding National Resource Waters. Alaska doesn't currently have a process, he continued, and the EPA has asked the state to identify a formal process for designating Outstanding National Resource Waters. He said this puts the state at risk of violating the Clean Water Act and opens up the possibility for the EPA imposing its own designation process, which it has no interest in doing. He related that in a 2018 letter to former Department of Environmental Conservation (DEC) commissioner Larry Hartig, the EPA wrote it supports Alaska's efforts to develop a designation process and that it has no interest in doing that for the state. REPRESENTATIVE KOPP stated that defining a designation process would provide conservationists and developers alike a measure of certainty in how to go about this designation. He said HB 138 would solve this problem by codifying in statute a designation process that is consistent with how lands and waters across the state would be designated for conservation by legislative approval rather than by department or agency decision. This designation is an important tool for protecting human and environmental health, he continued. He maintained it is a significant policy decision because it would restrict a wide range of activities on state waterbodies as well as on adjacent lands that have waters flowing across them into those waterbodies. He said large-scale resource development projects located near Tier 3 watersheds would therefore be impacted by Tier 3 designation and so would road and building construction, motorboats, recreational activities, seafood processing, municipal wastewater discharge, residential and commercial septic systems, storm water discharge, landfills, timber harvesting, and gravel quarries. He opined that such widespread impacts effectively make Tier 3 designation a de facto land use decision and as such the final decision for Tier 3 designation properly resides in the hands of the legislature, which HB 138 would do. He further opined that HB 138 would provide certainty for conservationists and developers alike on the designation process of Outstanding National Resource Waters. Representative Kopp said the bill isn't lengthy, it just says that this should be done in statute by the legislature. 2:22:23 PM REPRESENTATIVE TUCK remarked that it is unknown what the statute is going to be. He therefore asked why not come up with a bill that defines the process because, then, "boom, we're done." REPRESENTATIVE KOPP replied that the logical outflow of HB 138 is that the administration would still have a duty as DEC to document petitions brought forward for Tier 3 designations and the legislature would know about it when the administration brings forth a bill that would be introduced by the House or Senate rules committees by request of the governor. That is how those are done now, he continued, so the question would come before that body in a manner in which the body is accustomed to seeing it. REPRESENTATIVE TUCK offered his understanding that a process is not being defined, it is just being said that the procedure is to follow the bill when the designation of a body of water or river is wanted. REPRESENTATIVE KOPP responded yes, file a bill and get legislative approval. 2:24:01 PM REPRESENTATIVE HANNAN asked whether the governor could already do that. She further asked whether this governor or a previous governor has done that with any of the five nominations for [Tier 3 designation]. REPRESENTATIVE KOPP answered that the five currently outstanding requests may go as far back as Governor Parnell. He related that former DEC commissioner Larry Hartig wrote two separate memos, one to DEC and one to the legislature, in which the commissioner recommended an approval process where these decisions were made by the legislature. He said Commissioner Hartig further stated in the memo that until a process was established the commissioner did not feel the state was in a position to show it was complying with the federal Clean Water Act as having a way to resolve these Tier 3 designations. REPRESENTATIVE HANNAN inquired as to why [DEC] hadn't forwarded the nomination of the Koktuli [River] [located in Bristol Bay] for Tier 3 designation given it has been pending for 10 years. REPRESENTATIVE KOPP replied it is because this bill has not passed yet. He said Governor Walker filed Senate Bill 163 [Twenty-Ninth Alaska State Legislature], but it didn't pass so now he is continuing that. REPRESENTATIVE HANNAN asked how many states have a designation process and how many have it limited to strictly a legislative decision, as opposed to a hybrid of the Board of Water making a recommendation and then the legislature acting on it. REPRESENTATIVE KOPP deferred to DEC. He said there is a mix of statute, board or commission, or executive agency decision, but he doesn't know how those are broken down. 2:26:48 PM EARL CRAPPS, Section Manager, Division of Water, Department of Environmental Conservation (DEC), answered Representative Hannan's question. He said the division doesn't have those broken down, but does have a summary of the different state processes. He explained that the process itself is not specified via federal regulation; it is up to each state individually to determine that process. He said each state does it differently - some are legislative, some are through a board, and some are a specific agency within the state that makes the designation. REPRESENTATIVE HANNAN inquired whether there are any other states where that decision is exclusively legislature with no other board or department process preceding that. MR. CRAPPS replied he would research it and get back to the committee with an answer. 2:28:00 PM CO-CHAIR TARR stated she would be interested in receiving documentation from Mr. Crapps. She noted she has some documents regarding some western states. For example, she said, Arizona has processing criteria and regulations, Nevada is a little different, New Mexico is in regulation, and Oregon is policy- processing criteria combined in anti-degradation policy regulation. 2:28:33 PM REPRESENTATIVE SPOHNHOLZ asked what the EPA considers to be an adequate definition to meet the Clean Water Act standards. She further asked whether having it in regulation is enough. MR. CRAPPS responded that the EPA does not specify. He said [Alaska] currently has in place a policy that says these nominations are to be taken to the legislature for designation and the EPA has indicated that this policy is adequate to meet an interpretation of the Clean Water Act. REPRESENTATIVE SPOHNHOLZ concluded Mr. Crapps is saying that [the State of Alaska] already has something in regulation that meets the definition of the EPA's criteria to meet the Clean Water Act standards. MR. CRAPPS answered correct and said last year [DEC] promulgated air degradation regulations and also posted [the department's] policy for Tier 3, which indicates that these nominations be taken to the legislature. The EPA, he continued, has indicated that that is acceptable. REPRESENTATIVE SPOHNHOLZ asked whether there has ever been a Tier 3 waterway designation in the state of Alaska. MR. CRAPPS replied no, not to this day. REPRESENTATIVE SPOHNHOLZ offered her understanding that there are currently five nominations on the books, but so far, the administration hasn't seen fit to bring any of them forward to the legislature. MR. CRAPPS responded correct; five are being held and have not been brought forward any further. REPRESENTATIVE SPOHNHOLZ said it sounds like the state already has in place the process that is being recommended in HB 138. She inquired why the sponsor thinks this process that is currently in regulation and that meets the EPA's clean water standards should be put in statute. 2:30:45 PM REPRESENTATIVE KOPP replied [Tier 3] designation is a political question because it is so far reaching and is the highest designation of any water body use. He said it is so high that the state of California, which is probably far more restrictive environmentally than Alaska, has only applied it to two water bodies. He related that there are none in Nevada, Washington, Idaho, or Alaska and offered his belief that there is one in Oregon. This is a higher standard than drinking water, he said, the reason being that some aquatic life is more sensitive to copper than are humans. Its subsequent impact affects large adjoining land areas, he continued. He said the question is, "Do we want these types of sweeping decisions made by an administrative agency or do we want to have these discussions before a legislative body where we can talk about it collectively and express our collective will if we think this special use designation is what we want and hear from the people rather than maybe get an internal agency report on their thoughts on the matter?" Every administration changes, he added, along with its preferences and wishes and this bill would bring this highest-level question before the legislature. 2:32:55 PM KEN TRUITT, Staff, Representative Chuck Kopp, Alaska State Legislature, specified that part of the answer is the timing of the regulations. He stated the regulations were done in consort with Senate Bill [163], which would have done what HB 138 [is proposing] to do, and the regulations got into effect before the bill got passed. There is currently an ambiguity, he continued, because those regulations point to the legislature and there is nothing currently in statute that says the legislature will do this. So, he said, HB 138 would complete a process that was started by DEC in consort with the legislation of a prior administration. REPRESENTATIVE SPOHNHOLZ stated that it sounds like regulations are already in place that put into effect what is described in HB 138. So, she continued, there may not be a problem that needs solved, unless the effort is to ensure there wouldn't be citizen initiatives that create a Tier 3 water designation. She asked whether the intent is to try to prevent a citizen's initiative from creating a Tier 3 water designation. REPRESENTATIVE KOPP replied he is unsure what the constitutional implications are with natural resources. He said the courts use bright line tests for whether a resource can be done through the initiative box and therefore he doesn't know if this could be done through an initiative. But, he continued, DEC considers this designation to be so far reaching that once a nomination for Outstanding National Resource Water is made it basically goes around most of the tools used by DEC to regulate water quality standards for normal water quality designations and DEC prefers this policy call be made by the legislature. He deferred to DEC to answer further. MR. CRAPPS clarified that the recently promulgated regulations deal only with how Tier 3 water will be managed once it is designated. He explained that what he spoke to earlier is DEC's policy, which is not in regulation. The policy itself is just a department policy, he continued, and it says the nominations will be submitted to the legislature for designation. 2:36:51 PM NILS ANDREASSEN, Executive Director, Alaska Municipal League, testified in support of HB 138. He spoke as follows: As you know, municipal powers, especially for boroughs, can include planning and zoning, transportation, ports and harbors, sewer and water, solid waste management, road maintenance, and flood protection and mitigation. Each of these relate back to Tier 3 designation. The role of local government is extensive as it relates to community development, public safety, and public welfare. Local decision- making takes into account extensive public input and directly involves residents in a review of that development's impacts on lands and waters within city or borough boundaries. The designation of Tier 3 waters by an agency would impact local control and decision-making, which otherwise would involve residents and locally elected officials in a dialogue about the sustainability of community development and locally determined approaches to the mitigation of negative impacts. Designation may adversely impact municipal wastewater treatment plants, for instance, or storm water permitting. Alaska's constitution is clear in assigning to the legislature the responsibility for the administration of the state public domain and, further, the reservation of the public domain for special purposes. In our review of HB 138 we believe that the legislative role in Tier 3 designation maintains the separation of powers between the executive and legislative branches, is consistent with constitutional intent and, further, that the legislative process mirrors that found locally the inclusion of Alaskans in a process that is overseen by elected officials. We commend to the legislature the importance of the role that local governments have in this process. Clearly the conservation and protection of Alaska's waters is a meaningful discussion for all Alaskans, just as important as Alaska's community and economic development. Clarifying the legislature's role in Tier 3 designations isn't making a choice between the two, but provides a platform for the careful negotiation that must take place with respect to both. 2:39:51 PM CO-CHAIR TARR opened public testimony on HB 138. 2:40:11 PM KIMBERLY STRONG, Tribal Council President, Chilkat Indian Village, testified in opposition to HB 138. She related that her community is one of three that are proposing Tier 3 status for the Chilkat River. She stated she is concerned about the process being brought forth because it would depend on somebody else and the administration in office. She maintained that putting the process for Tier 3 designation into the legislative body would result in the decision process becoming a political battle. She pointed out that she would not have enough funds to fly to Juneau to testify in front of legislators [unlike] mining companies or other companies that want to have resource extraction that could irreparably damage the river that provides five species of salmon for the people of the Chilkat Valley. MS. STRONG stated that Tier 3 designation should be a process where environmental experts make the decision as to whether this is needed to protect the waterway. She related that in the past DEC was asked whether it had done water quality testing in the Chilkat River and DEC said it had not because there were too many waterways in Alaska for the department to test. So, she continued, the Chilkat River goes untested for water quality. She reiterated she would rather it not be a political process and instead be a process that DEC decides. 2:43:08 PM JONES HOTCH, Jr., Vice President, Chilkat Indian Village, testified in opposition to HB 138. He noted Chilkat Indian Village is a federally recognized Indian tribe. He urged that the bills in the House and Senate not be passed. He pointed out there would be no appeal process and therefore DEC should be the one that handles the nomination and selection. 2:44:06 PM SHANNON DONAHUE testified in opposition to HB 138. She said she lives at the mouth of the Chilkat River, which has been nominated for Tier 3 protection because of its exceptional ecological and cultural significance. She stated that people and all living things in the Chilkat Valley depend on this river for sustenance. She said HB 138 would deny Alaskans their right to protect their most valued waterways by implementing a complicated political process for designation through the legislature, making it nearly impossible to achieve the protections that people have a right to as Alaskans and as Americans. Meanwhile, she pointed out, mines and mineral exploration companies go through a simple permitting process if they want to degrade these waters. She said this makes no sense because everyone in Alaska depends on the state's clean, life- giving waterways, yet it is easier to get permission to pollute the waterways than to protect them. MS. DONAHUE stressed that Tier 3 designation should be a transparent, reasonable, nonpolitical process based on clear criteria, and ecological, cultural, or recreational values, and the will to protect Alaska's waterways. She urged that the entire review and designation process remain with the DEC. She further urged that HB 138 be killed and the right of Alaskans be defended to protect their waters and their homes. 2:45:35 PM JILL JACOB testified in opposition to HB 138. She said it is critical the authority for designating Tier 3 water remain with the DEC and the process remain an administrative equal to that of permitting water. She stated that it is astonishing Alaska does not yet have a Tier 3 waterbody. She noted that Lake Tahoe in California is a Tier 3 waterbody and that it hasn't stopped people from swimming, drinking, or anything else. She offered her understanding that HB 138 would remove the option for a public ballot to designate Tier 3 water and would also provide the way for a governor to veto a Tier 3 water designation. Alaska has the last remaining healthy wild salmon on the planet other than a few places in Russia, she said, so there is a need to start protecting Alaska's waterbodies with the highest possible protection. She added that no amount of economic development is worth the state's safe drinking water or fish. 2:47:16 PM KIP KERMOIAN testified in opposition to HB 138. He reported that at a 3/20/17 meeting in Juneau, focal groups were formed to specifically address the process that the state of Alaska should employ to nominate and designate Outstanding National Resource Waters. He said the meeting attendees were two representatives for conservation organizations, two for commercial fishing, eleven for government, sixteen for industry, five for Alaska Natives, two for the Upper Lynn Canal Fish and Game Advisory Committee, and five undeclared representatives. Of importance, he noted, is that one point of consensus was that none of the focal groups expressed support for a legislative path to Tier 3 designation; the opinion otherwise was split between an all DEC option or some combination of a DEC and a Tier 3 advisory board. MR. KERMOIAN stated that like those at the workshop, he does not support a legislative option. He expressed his opinion that it should be DEC along with an advisory board and it should be evaluated for a specific nomination path and recommended to the DEC by this board at least with stakeholders and a body of other people involved. He said inviting the legislature to make this determination politicizes this process and it should be left to natural resources and scientists, people of expertise in the field. He pointed out that for Tier 3 these experts would be evaluating exceptional, important, unique, and sensitive ecological waters. He added that the transient political nature of how things go would not lend itself well to this process. He said corporations can apply for a process to grade water and HB 138 and SB 51 would eliminate the ability for residents and the public to do the same. 2:50:10 PM BETSEY BURDETT testified in opposition to HB 138. She offered her belief that this process should stay in the realm of DEC and some kind of advisory board. She noted that legislators are replaced every few years, as is the governor, and she would like to keep it on an administrative level with experts that know about the environment. She disagreed that this designation is a land use decision and said it is about clean rivers. Given many of these rivers already have things going on, she added, it isn't like it is being taken off the grid. 2:51:28 PM JAN CONITZ testified in opposition to HB 138. She stated that while the bill sounds like a simple change, it isn't - it's a sweeping change. She said HB 138 would take away the rights of ordinary Alaskans, and over time would result in great harm to Alaska's mostly pristine waters by taking away the right of people who know these waters to take steps to protect them. She pointed out that unique about Alaska compared to all other states, is the direct dependence of so many Alaskans on clean and unspoiled waters. Those with direct connection to the land and water, she continued, have close-up firsthand knowledge of the waterways that need protection and they know about the risks of not taking care of those waters. MS. CONITZ said all Alaskans currently have the right to nominate waters critically important as Outstanding National Resource Waters. The designation protects waters from long-term pollution and degradation by simply not allowing dumping of waste into them, she continued, and would not preclude ordinary existing uses of the water. But, she stated, HB 138 would remove the right of ordinary Alaskans to take the first step to protect the water that they depend on and care about. The bill would turn efforts to reasonably protect clean water over to a political process, which would probably in practice be nearly impossible to prevail. She pointed out the legislature can at this time designate Tier 3 waters if it chooses to, but evidently it has not, and so there is no point in passing HB 138 to give the legislature more authority. She reiterated that HB 138 would take away the authority and the rights of ordinary Alaskans and would allow further degradation of Alaska's clean waters. She urged the bill not be passed. 2:54:31 PM DOUG WOODBY testified in opposition to HB 138. He said he began working for the Alaska Department of Fish and Game in the mid- 1970s and retired a few years ago as a chief fisheries scientist. He noted he conducted research and management work all around the state and is opposed to HB 138 for a number of reasons. The primary reason, he continued, is because it would make the designation of these exceptional waters a political process when it should be based on best scientific expertise. He said that based on the bill's sponsors, it is clear that many are extractive industries. Alaska currently has no waters designated under this special designation, he stated, and it appears that HB 138 is a thinly veiled attempt to make that almost impossible, which is why he opposes it. 2:55:51 PM DEANTHA CROCKETT, Executive Director, Alaska Miners Association (AMA), testified in support of HB 138. She spoke as follows: The Clean Water Act requires all states to maintain a process for Tier 3 water designation. This is for water that's described as having exceptional recreational or ecological significance or waters that are within parks and refuge, so truly special scenarios of water protection above what the State of Alaska already does. Tier 3 waters effectively cannot have any new or any expanded activities that have the potential to change the water quality in any way. So this would apply even in situations where the activity meets existing water quality standards and fully protects the fish and the water and any other uses. A designation would result in significant restrictions on land and water users and cause significant adverse and social and economic impacts. Because a designation applies to a Tier 3 tributary or a Tier 3 water, it would prohibit development in entire watersheds comparable to de factor wilderness. And for that reason we believe ... the authority to designate should lie solely with representatives of Alaskans, which is the legislature. With regard to the designations, they've got the potential to become tools for anti-development interests to block or delay projects. It's evident in the five nominations before DEC currently, which specify mining, oil and gas, federal land planning, and Alaska Native corporation land selections as threats to waterbodies. But it's clear that a designation goes a lot farther. Tier 3 designation could impact a lot of other users, non-development users that the sponsor outlined in his introduction. ... That is why you will see in your packet a letter authored by 15 diverse organizations that understand the impact of a Tier 3 designation to all Alaskans. And we believe that given the significant adverse and watershed-wide land and water use impacts that a Tier 3 water should be designated only by a vote to the legislature. This is consistent with the constitution, the existing process for setting aside areas of state land from development, and existing DEC policy. And for those reasons we urge you to support this bill. 2:58:10 PM JESSICA PLACHTA, Executive Director, Lynn Canal Conservation (LCC), testified in opposition to HB 138. She said her organization's 300 active members are speaking with her as she testifies opposing HB 138 and SB 51. She related that LCC supports the Village of Klukwan, which nominated the Chilkat River for Tier 3 protection. She continued: Clean water is not a partisan issue. Anyone who has ever fed a child or caught a fish knows that clean water is a basic human right. Alaska is blessed with abundant clean water and despite its small population Alaska is also the biggest water polluter in the country. It can do better than that. The state of Alaska has been out of compliance with the Clean Water Act for over 20 years. But [Alaskans] are demanding the right to protect our clean waters and healthy salmon runs before rampant industrialization makes our way of life history. Support for subsistence is built into the state constitution; it should not be easier to pollute public waters in the state of Alaska than it is to protect them. Opponents of protection argue that Tier 3 designation would be bad for business. Tell that to Florida, which has 41 designated Tier 3 waterways and a robust economy. We are counting on you legislators to resist corporate pressure and do the right thing. Let communities protect the waters they rely on using sound science, not corporate pressure and not politics for the yardstick. It's that simple. There is an alternate Tier 3 bill waiting in the wings, one that makes it easier to protect the water we all rely on for our health, our wealth, and our future generations. Wait for it. Please oppose HB 138 and SB 51. Three hundred of us here in Haines ask you to join us and oppose these destructive backward bills. And please let us protect the Chilkat River. 3:00:36 PM LOUIE FLORA, Director, Government Affairs, The Alaska Center (TAC), testified in opposition to HB 138. He stated: We believe the state's top cop for water quality regulations, DEC, has the ability, expertise, and clear legal authority to establish a science based nomination process for high value waters for Tier 3 water as required under the federal Clean Water Act. We believe administration of Tier 3 for waters of high ecological or recreational value can be rendered under the existing anti-degradation policy incorporated in the existing DEC water quality standards program. ... DEC does not need additional legal authority to designate Tier 3 waters; it just needs to adopt a process for doing that. Moving legislative designation of Tier 3 waters will result in an entirely political process for any discussion on the science based merits, and the Tier 3 designation will be steamrolled by politics and money. And DEC has the water quality expertise and the ability to regulate water quality [and] should be the entity to make the protective determinations. MR. FLORA addressed the argument that HB 138 is necessary because Tier 3 designations are too big of a policy call for DEC. He said this to be a strange argument in that EPA is currently moving ahead with certification of an Alaska water quality regulation promulgated by DEC in 2006 that allows pollution-mixing zones in salmon spawning areas statewide. He pointed out that this 2006 regulation has far reaching implications for salmon habitat and for salmon user groups statewide and was carried out administratively. Yet, he continued, with HB 138 it is being said that to protect very specific and geographically limited waters of exceptional ecological value the burden is too great for an administrative process. He said the argument that the agencies should not independently make determinations to protect certain waters ignores the statute that allows citizens, organizations, and state agencies to make in-stream flow or water quantity reservations through an administrative process overseen by DNR. These reservations, he noted, are made quite often by the Alaska Department of Fish and Game to protect fish habitat and it's all without legislated confirmation or approval. MR. FLORA stated HB 138 is unnecessary and should not be moved from committee. He said DEC should, within its clear authority, create a regulation that satisfies the federal Clean Water Act requirement that states have a process for citizens to nominate specific high value waters for protection from additional degradation. 3:03:32 PM GUY ARCHIBALD testified in opposition to HB 138. He stated he is representing himself but works as staff scientist for the Southeast Alaska Conservation Council (SEACC). He said some of the talking points in the sponsor's statement are imperfectly informed, such as the statement that the State of Alaska currently has no formal process for designating a Tier 3. He drew attention to the [7/26/18] letter in the committee packet from the EPA to Mr. Andrew Sayers-Fay [Director, Division of Water, DEC] and noted the letter mentions that EPA is approving the Tier 1 and Tier 2 because DEC still has in place the interim antidegradation guidance that outlines three different ways to designate Tier 3. One of those ways, he said, is through the triennial review process where any resident of the state can nominate a Tier 3 and DEC is supposed to move that along. MR. ARCHIBALD said nobody argues that the legislature does not have the authority to designate a Tier 3. He stated the legislature can act on those at any time and has always been able to do that. So, he continued, if this bill is not a bill to form a designation process, then it must be asked, What is it? He said it's clear that HB 138 is designed to take a public process out of it so that the public process does not have an administrative process or even an appeal process judicially to form a Tier 3. In regard to statements that protecting the water is so far reaching and has so many other effects, he pointed out that contaminating water has effects as well - on other landowners, communities, and people's ability to make a living through the fishing industry. He maintained it is not a land use decision because landowners adjacent to the state's public waters have no inherent right to pollute those waters. CO-CHAIR TARR inquired about the three ways [that DEC has to designate a Tier 3]. MR. ARCHIBALD replied that the Alaska Department of Law (DOL) has done an opinion on this, but has not made it public. He related that the Department of Law told him it was attorney- client privilege. He suggested the committee ask for it. 3:06:36 PM SARAH DAVIDSON, Program Manager, Inside Passage Waters, Southeast Alaska Conservation Council (SEACC), testified in opposition to HB 138. She said her position with SEACC provides her the opportunity to travel throughout Southeast Alaska, speak to communities about water challenges and opportunities, and listen to their concerns, needs, and interests. She continued: Of the many concerns I've heard, those relating to the future of wild Alaskan salmon stocks have come up the most, a concern that I imagine is shared by many in this room. As stressors in the ocean ecosystem increase, our streams and rivers become even more critical to the survival of salmon and the communities that rely on them. Currently most Alaskan waters are clean enough to catch fish and eat without significant health hazards. This is one of the few places on earth where this is the case. That alone makes Alaska unique and fuels our two largest economic drivers in this region fishing and tourism. We should be doing everything we can to protect that special quality and the waterways that make that possible. Instead HB 138 makes it even more difficult than it already is to protect our clean waters and leads us down the same path from which other states in our country are still struggling to recover after decades of industrial pollution. It should be no more difficult to protect Alaskan waters that it is to pollute them. Not only does HB 138 make this process political rather than scientific by removing authority from DEC, it also removes the opportunity of Tier 3 designation by a public initiative. The same agency that has the scientific expertise to implement a Tier 3 designation should also have the authority to designate them through an administrative and science based process. This is not my perspective alone. It is shared by over 150 people who signed our petition calling for a Tier 3 designation process equally as administrative and streamlined as the permit process to degrade our waters. Any short-term gains made by the passing of HB 138 will be undermined by the long-term detriment to our clean water, our healthy fish, and our resilient communities. HB 138 hurts all of us. ... I call on each representative on this committee to have the will and the courage to prioritize clean water for those yet to come by defeating this bill. 3:09:20 PM HEATHER EVOY testified in opposition to HB 138. She stated she is Tsimshian from the Eagle Clan. She noted she works as the Indigenous Engagement Lead for the Southeast Alaska Conservation Council (SEACC), but is speaking today on behalf of herself as an Alaska Native whose ancestors have been here for 10,000-plus years. She said that for almost 10 years DEC has sat on the five Tier 3 nominations, all of which have come from an Alaska Native tribe, not corporations. In regard to the argument by proponents of a legislative-only Tier 3 process that Tier 3 is just a tool for special interest groups, she pointed out that tribes are not special interest groups any more than any other government entities. 3:10:53 PM PHILLIP MOSER testified in opposition to HB 138. He stated that passing the bill would be a blow to the voice and wellbeing of citizens like him. He said he finds it outrageous that the proponents of smaller government and less regulation have a talking point that only applies to industry and capital, but when citizens have a tool to advocate for themselves and their health and the waters on which they rely, proposals are made to add more and more bureaucracy to stop them. He stated DEC is set up precisely to work through Tier 3 water issues and can respond to community advocacy well; shunting Tier 3 designation to the state lawmaking process would result in losing a straightforward fact based investigative process to political stalling. MR. MOSER asked why business can apply to the DEC with a six- page application to engage in long-term pollution of Alaska's best waters while its own citizens trying to protect those same waters upon which they rely and live on are considered a threat. Regardless of whether the bill passes, he said, the evidence already says Alaska's waters have many stressors and everything possible needs to be done to uphold Alaska's waters as the cleanest and best waters for its own citizens. He noted Tier 3 designations do not apply to existing uses of those waters, and offered his belief that the argument that it could be onerous to people if this legislation isn't passed is much overstated. 3:12:38 PM [HB 138 was held over.]