CSHB 51(FIN): "An Act relating to water quality and the procedures required to implement certain federal regulatory changes."
00CS FOR HOUSE BILL NO. 51(FIN) 01 "An Act relating to water quality and the procedures required to implement 02 certain federal regulatory changes." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. FINDINGS AND INTENT. The legislature confirms that it is the policy of 05 the state to adopt laws and implement water quality standards based on scientific and technical 06 evidence. The legislature specifically requests the Department of Environmental Conservation, 07 when implementing AS 46.03.085 - 46.03.088, enacted by sec. 4 of this Act, to coordinate its 08 efforts with other state agencies to achieve cost efficiencies and, when adopting regulations, 09 to consider measures that encourage the creation and retention of jobs for Alaskans and the 10 economic development of the state's natural resources consistent with the public interest. It 11 is the legislature's intent that Alaska's water quality regulations be adopted and implemented 12 in a credible manner, be based on scientific criteria, and be economically feasible to comply 13 with. The people of Alaska express their will through the legislature, and regulations 14 implement legislative action.
01 * Sec. 2. AS 46.03.050 is amended by adding a new subsection to read: 02 (b) The department may continue to investigate the feasibility of securing 03 federal approval under 33 U.S.C. 1342(b) of the state's permit program for discharges 04 into navigable water so that the department has authority to administer the national 05 pollutant discharge elimination system in the state in lieu of the federal permit program 06 otherwise applicable to the state under 33 U.S.C. 1342(a). Nothing in AS 46.03.085 - 07 46.03.088 may be interpreted to prevent the department from continuing its effort to 08 secure approval under 33 U.S.C. 1342(b). 09 * Sec. 3. AS 46.03.080 is amended by adding a new subsection to read: 10 (b) If the available evidence reasonably demonstrates that the natural condition 11 of a body of water does not meet the requirements of the quality or purity standards 12 that would otherwise be applicable to the classification of the water adopted under (a) 13 of this section, the natural condition of the water shall constitute the applicable 14 standard of quality or purity. 15 * Sec. 4. AS 46.03 is amended by adding new sections to read: 16 Sec. 46.03.085. Water quality standards. (a) In adopting and applying water 17 quality standards, the department, consistent with 33 U.S.C. 1251 - 1376 (Clean Water 18 Act), 19 (1) shall ensure that the standards are sufficient to protect human health 20 and propagation of fish and wildlife; 21 (2) shall consider reasonably available information on the background 22 condition of bodies of water, including the presence of naturally occurring pollutants, 23 such as arsenic; 24 (3) shall use scientific justification to develop water quality standards 25 that can be reliably measured; 26 (4) may not require water discharged by a user to be of a higher quality 27 than the background condition of the water receiving the discharge; and 28 (5) shall provide procedures for permitting mixing zones in state bodies 29 of water under regulations adopted by the department. 30 (b) Except when setting standards under AS 03.05.011(a) for shellfish growing 31 areas, as defined in the national shellfish sanitation program manual of operations
01 published by the Food and Drug Administration, the department may adopt a water 02 quality standard or other regulation related to water quality that is more restrictive than 03 applicable federal water quality criteria or regulations only after following the 04 procedures in AS 46.03.087(b). 05 (c) Notwithstanding AS 44.62.230, a person may submit a written request to 06 the department to amend the state's water quality standards, criteria, or other 07 regulations to incorporate a reduction in or elimination of a federal water quality 08 standard, criteria, or other regulation. The request must state clearly and concisely the 09 state and federal standard, criteria, or regulation in question and provide the department 10 with the reasons and basis for the requested amendment. Within 90 days after 11 receiving the request, or by another date mutually agreed on by the applicant and the 12 department, the department shall either propose regulations to incorporate the reduction 13 or elimination of the federal provision or initiate the procedure required under 14 AS 46.03.087(b). If, following the procedure under AS 46.03.087(b), the department 15 is unable to make the written findings required under AS 46.03.087(b)(3), the 16 department shall propose regulations that amend the state's water quality standards to 17 incorporate the reduction in or elimination of the federal water quality criteria or 18 regulations. 19 (d) Except as otherwise provided in AS 46.03.087, the measurement of 20 constituents other than sediment to determine whether a permittee is in compliance 21 with permit limitations based on water quality shall be by methods approved in writing 22 by the United States Environmental Protection Agency or by substantially equivalent 23 methods approved by the department. 24 (e) Except as otherwise provided in AS 46.03.087, the measurement of 25 sediment to determine whether a permittee is in compliance with permit limitations 26 based on water quality shall be by the volumetric Imhoff cone method for settleable 27 solids. However, this subsection may not be construed to limit the department's 28 authority to adopt water quality criteria for total suspended solids to meet United States 29 Environmental Protection Agency requirements. 30 Sec. 46.03.087. Special procedures for certain water quality regulations. 31 (a) The department may, after following the procedures in this section, adopt a
01 (1) water quality standard or discharge standard that is more restrictive 02 than applicable federal water quality criteria or discharge standards; 03 (2) water quality standard or discharge standard for which there is no 04 corresponding federal water quality criteria or discharge standard; or 05 (3) regulation that allows the use of a method that is not substantially 06 equivalent to methods approved by the United States Environmental Protection Agency 07 for the measurement of constituents to determine whether a permittee is in compliance 08 with permit limitations related to water quality. 09 (b) Before adopting a standard or regulation governed by (a) of this section, 10 the department shall 11 (1) make available to the public, at convenient locations, copies of the 12 proposal and the findings of the department that describe the basis for the proposal; 13 (2) consider and prepare a written finding assessing the economic and 14 technological feasibility of the proposal; and 15 (3) find in writing, as applicable, that 16 (A) biological, chemical, or physical conditions in the area of the 17 state or at the particular site where the standard or regulation applies reasonably 18 require the water quality standard, permit limits, or method of measurement to 19 protect human health and welfare or propagation of fish and wildlife; and 20 (B) biological, chemical, physical, or economic conditions are 21 significantly different in that area of the state or at that particular site from 22 those upon which the corresponding federal criteria or regulations are based. 23 Sec. 46.03.088. Definition of "background condition." In AS 46.03.085 - 24 46.03.087, and in regulations of the department that relate to water quality, 25 "background condition" means the biological, chemical, and physical conditions of a 26 body of water outside the area of influence of the discharge under consideration. 27 When the department performs background sampling to determine a background 28 condition during an enforcement action, the department shall measure conditions that 29 are upslope or outside the area of influence of the discharge. If several discharges to 30 a body of water exist and an enforcement action is being taken, the department's 31 background sampling shall measure conditions immediately upslope from each
01 discharge. 02 * Sec. 5. TRANSITIONAL REVIEW OF REGULATIONS. (a) The Department of 03 Environmental Conservation shall, during the triennial review process of regulations that is 04 required under 33 U.S.C. 1313(c) (Clean Water Act), review its water quality regulations that 05 are in effect on the effective date of this Act in order to determine if they comply with federal 06 requirements and are not more stringent than applicable federal regulations. If the review 07 indicates that there are state regulations that are more stringent than applicable federal 08 regulations, the department shall determine whether it could justify those regulations under the 09 requirements of AS 46.03.087(b)(3), enacted by sec. 4 of this Act. If the department 10 determines that it cannot meet the requirements of AS 46.03.087(b)(3), the department shall 11 adopt the necessary revisions to the regulations. It is the legislature's intent that the 12 department complete its review of all regulations governed by this subsection and its adoption 13 of all necessary revisions required under this subsection within four years after the effective 14 date of this section. 15 (b) The Department of Environmental Conservation shall, by January 31, 1999, and 16 annually thereafter until all of the state water quality regulations in effect on the effective date 17 of this Act are reviewed, prepare a written report on the status of the department's review and 18 revisions required under (a) of this section. The department shall submit the report to the 19 governor and notify the legislature that the report is available.