Legislature(2009 - 2010)BARNES 124
03/09/2010 10:15 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB46 | |
| HB365 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HCR 15 | TELECONFERENCED | |
| += | HB 46 | TELECONFERENCED | |
| *+ | HB 365 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 46-MIXING ZONES/SEWAGE SYSTEMS
10:21:38 AM
CHAIR EDGMON announced that the first order of business would be
HOUSE BILL NO. 46, "An Act requiring the Department of
Environmental Conservation to collect and make available to the
public certain information relating to water pollution;
prohibiting certain mixing zones in freshwater spawning waters;
and requiring a public comment period for certain sewage system
or treatment works modifications." He then noted that public
testimony on HB 46 was closed.
10:23:06 AM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, informed
the committee that the bill asks three questions: Should
citizens have the right to know Department of Environmental
Conservation (DEC) information on freshwater pollution without
having to file a Freedom of Information Act request? Should
pollution above the state toxic standards be allowed to be
discharged on freshwater spawning beds as mixing zones? Should
neighbors have the right to a public hearing if a commercially
operated sewage lagoon is going to be expanded over 50 percent
in their neighborhood? Representative Seaton stated that the
biggest of these questions is regarding mixing zones, and
explained that mixing zones are areas where the state allows
toxic pollutants to be discharged. He pointed out that the bill
restricts this discharge in a spawning area; in fact, this is a
return to the law previous to 2002, when mines "were permitted
under those situations." For example, the Donlin Creek [mine]
was required to move its mixing zone upstream, away from a
spawning area. He noted that HB 46 will ensure that there is an
exemption for problems with turbidity from placer mining
operations, and the bill does not affect other permits for in-
stream crossings.
10:25:15 AM
REPRESENTATIVE KELLER recalled that amendments have been
discussed at previous hearings. He moved to adopt Amendment 1.
CHAIR EDGMON objected for the purpose of discussion.
10:25:33 AM
REPRESENTATIVE SEATON explained Amendment 1, which read as
follows:
Page 3, line 24, following "for a":
Insert "commercially operated"
REPRESENTATIVE SEATON said that the amendment eliminates the
question of whether a sewage lagoon is a disposal site on
private property.
10:26:03 AM
CHAIR EDGMON removed his objection. Hearing no further
objection, Amendment 1 was adopted.
10:26:12 AM
REPRESENTATIVE KELLER moved to adopt Amendment 2.
CHAIR EDGMON objected for the purpose of discussion.
10:26:25 AM
REPRESENTATIVE SEATON explained Amendment 2, which read as
follows:
Page 3, following line 21
Insert:
(4) "useful life" means the anticipated time in which
a facility can continue to be operated without
replacement or major renovation.
REPRESENTATIVE SEATON said that the amendment adds clarity
to the intent of the statute.
10:26:44 AM
CHAIR EDGMON removed his objection. Hearing no further
objection, Amendment 2 was adopted.
10:26:49 AM
REPRESENTATIVE KELLER moved to adopt Amendment 3.
CHAIR EDGMON objected for the purpose of discussion.
10:26:59 AM
REPRESENTATIVE SEATON explained Amendment 3 which read as
follows:
Page 3, line 5
After "authorization" delete "."
Insert:
", or for an area where spawning was ongoing at the
time of initial authorization, if that authorization
occurred more than five years prior to the effective
date of the bill."
REPRESENTATIVE SEATON said the amendment provides clarity for
rural villages that have sewage outfalls which have not been
officially permitted.
10:27:47 AM
CHAIR EDGMON removed his objection. Hearing no further
objection, Amendment 3 was adopted.
10:28:01 AM
CHAIR EDGMON called for discussion on HB 46, as amended.
10:28:20 AM
REPRESENTATIVE MILLETT maintained her concern about the effect
of changing mixing zone requirements on small, undeveloped
communities. In addition, the fiscal note indicates the
addition of staff, and she opined that DEC is "doing a good job
with the statutes as they stand on mixing zones." She said she
will not be able to support the bill in its present form.
10:30:01 AM
REPRESENTATIVE SEATON responded that the remaining question was
whether the committee believes it is good public policy to
discharge toxics above the state standards for aquatic life on
freshwater spawning areas. He clarified the spawning areas are
nesting areas for the named species, such as salmon, when the
salmon are not actively laying eggs. Furthermore, there have
been no mine permits denied because of this accommodation.
Representative Seaton opined not protecting spawning grounds is
"trading away our renewable resources and our fisheries
resources on which all our communities depend." The bill does
not prevent mixing zones in rivers, but makes modifications so
that a mixing zone does not occur in a spawning area.
10:31:38 AM
REPRESENTATIVE MILLETT expressed her belief that the legislation
elevates one resource over another for development. She said,
"In my walk around the state, have seen that [miners] are doing
the upmost to protect all resources equally." She concluded
that the bill may not allow permitting for some mines and is
"over-reaching."
10:32:50 AM
CHAIR EDGMON pointed out that HB 46 has safeguards to exempt
municipalities and placer mines, and asked Representative Seaton
to speak about the exemptions.
10:33:54 AM
REPRESENTATIVE SEATON provided the example of the Donlin Creek
mine, which applied for a permit prior to the change in law.
The mine was required to move its mixing zone 1,400 feet to a
"boulder patch area" that was not in a spawning area. After
this change, the mine received its permit. Furthermore, the
bill exempts artificial settling ponds or channels that are
later "invaded by one of the fish species," so they may not be
reclassified as spawning areas. In addition, the bill
accommodates turbidity caused by placer mines. He restated the
intent of the bill is to prevent pollution, above the level that
the state sets as safe for aquatic life, from being discharged
in spawning areas.
10:36:54 AM
REPRESENTATIVE KELLER recalled testimony from DEC indicating
that regulations already prohibit mixing zones in spawning areas
"with the time element." He stated that the above information,
along with the "unknowns" surrounding the bill's impact on
municipalities, prevent him from supporting the bill.
10:37:53 AM
REPRESENTATIVE SEATON advised that comments from the
municipalities and villages have indicated that one of the
amendments adopted "took care of that problem that DEC had
identified, that there were some things that they hadn't
permitted." Therefore, unpermitted discharges that are normal
in some parts of rural Alaska are taken care of. However, after
the useful life of facilities is past, the replacement should be
"at a level of what we want to see for Alaska."
10:38:54 AM
REPRESENTATIVE MUNOZ observed HB 46 also affects lakes and
resident fish, such as Arctic char and other species. The bill
is very broad, and she cited the difficulty of permitting the
tailings disposal plan for the Kensington Mine in Juneau that
occurred over the discovery of an introduced trout species.
Although the Kensington Mine did not require a mixing zone, she
maintained her concern about adding uncertainty to the
permitting process. She asked for a response regarding the
aforementioned issue and on the influence of the Clean Water Act
(CWA) on this legislation.
10:40:14 AM
REPRESENTATIVE SEATON concurred that the Kensington Mine did not
require a mixing zone. Although freshwater fish in lakes are
included in the language of the bill, he pointed out that HB 46
does not cover broadcast spawners, but only species that spawn
in redds, or nests. He acknowledged that the CWA requires
public process for its tri-annual review; however, public
process for adopting standards is set "as appropriate" by 33
United States Code (USC) 1313(c)(1). He assured the committee
that the idea that the state can, or cannot, disallow mixing
zones is not the issue as proven by the statute that was enacted
affecting the cruise line industry. The bill does not change
the toxic standards, but merely disallows the ability to exceed
the established standards on spawning grounds.
10:43:27 AM
REPRESENTATIVE MUNOZ opined legislation affecting the cruise
ship industry has proven to be a very onerous and unscientific
method of regulating water quality. She maintained her concern
that legislating water quality without the regulation process
leads to unintended consequences.
REPRESENTATIVE SEATON reminded the committee that in 2002, the
Murkowski administration eliminated the standard that prevented
mixing zones from being part of spawning areas, and this bill
reinstates the previous standard.
10:44:53 AM
REPRESENTATIVE JOHNSON asked whether salmon always spawn in the
same area.
REPRESENTATIVE SEATON responded that spawning areas are
identified by the Alaska Department of Fish & Game (ADF&G) and
are not extremely variable. The fish tend to return to the same
area that has gravel and upwelling waters.
10:45:46 AM
REPRESENTATIVE JOHNSON further asked whether water temperature
is a factor.
REPRESENTATIVE SEATON answered that water temperature varies
year to year, and with salmon, ADF&G has surveys that indicate
the established spawning areas. Some species, such as pink
salmon, are more mobile and may invade a new area.
10:47:05 AM
REPRESENTATIVE JOHNSON observed that ADF&G may determine that
there has not been an invasion because the fish have been in a
certain area years before. He said, " ... to get to the point
of my questioning, are we talking about eliminating a mixing
zone, anywhere on a river that's a potential spawning zone,
based upon the invasion ...? Are we basically excluding any
place that could ever potentially be a spawning zone in a
river?"
REPRESENTATIVE SEATON said no. An application for discharge
will require findings to determine whether the area is a
spawning area and the permit will be granted, or not, based on
that finding.
10:48:21 AM
REPRESENTATIVE JOHNSON expressed his belief that the legislation
leaves open to interpretation "is it a spawning zone, was it a
spawning zone, is it going to be a spawning zone?" His primary
concern is that this bill eliminates basically any habitat that
could potentially be a spawning zone.
10:49:03 AM
REPRESENTATIVE SEATON explained that when a permit is
considered, ADF&G determines whether the area is a spawning
area.
10:49:31 AM
LYNN KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), clarified that the cruise ship
law did not affect the water quality standards, but addressed
effluent levels. However, HB 46 does make changes to the water
quality standard, because the Environmental Protection Agency
(EPA) views the mixing zone regulations as a part of the water
quality standards. She then deferred to testimony from the
Department of Law (DOL) on the EPA process.
10:50:37 AM
CAMERON LEONARD, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Fairbanks), Department of Law
(DOL), advised the committee the bill would require EPA approval
through a process governed by federal regulations. He directed
attention to his written response to "Mixing Zone Bill
Questions, Our File No. 665-09-0019," dated 2/11/10, and
provided in the committee packet.
10:51:13 AM
REPRESENTATIVE SEATON referred to the letter response and
pointed out that Section 303(c)(2)(B), which is cited in the
letter, is specific to toxic pollutants and does not apply to
the mixing zone requirements. Furthermore, Sections (c)(3) and
(4) pertain to EPA's approval and disapproval process; thus,
although it would be good to put these things in findings,
pollutants, mixings zones, and the EPA process are different
topics.
10:52:03 AM
MR. LEONARD disagreed, and said that anytime DEC promulgates any
water quality standard it does go through the same federal
approval process. The applicable requirements of the CWA are
Sections 303(c)(1) and (c)(2)(A), and are not limited to toxins,
but apply to any water quality standard.
REPRESENTATIVE SEATON opined the new existing standards have not
been approved by EPA; however, the standards in the bill have
been approved.
10:53:08 AM
REPRESENTATIVE MUNOZ observed Mr. Leonard's letter indicates an
analysis occurs before a change is made. She read from page 3
[original punctuation provided]:
Federal regulations require that a state seeking EPA
approval of a proposed revision to a water quality
standard submit the following information: analyses
conducted to support the standard; an explanation of
the scientific basis for the standard; and
certification by the Attorney General or other legal
authority this it was duly adopted. ... the sponsor
of a bill proposing a change to an existing standard
should make the first two items available to the
committees considering the bill, and to the public,
before the bill is enacted.
10:54:07 AM
MR. LEONARD further explained that these requirements can be
found in federal regulation 40 Code of Federal Regulations (CFR)
Section 131.6. The regulation lists what the state is required
to submit to EPA in support of a water quality standard project
and there is a separate regulation for governance of public
hearings. Mr. Leonard advised these requirements "would be
triggered by this bill, just as they are triggered every time
DEC promulgates water quality standards as regulations."
10:54:57 AM
REPRESENTATIVE SEATON reiterated that the water quality
standards are in place and the new ones are those being applied
for; furthermore, the prohibition on the pollution of mixing
zones in spawning streams has been in place before. The
authority [for this] has been previously adopted in state law.
10:55:38 AM
CHAIR EDGMON noted he represents a fishing district that has
concerns about a nonrenewable resource encroaching on its
valuable fishery, and stated his support for the bill. He
opined the bill warrants passage to another committee to
continue the discussion during this legislative session.
10:57:01 AM
REPRESENTATIVE BUCH moved to report HB 46 out of committee with
individual recommendations and the accompanying fiscal notes.
10:57:13 AM
REPRESENTATIVE JOHNSON objected. He said that the committee
should not move a bill in order for more discussion, but only if
the committee feels it is good policy and should become law.
During a 90-day session, committees must start making policy
decisions, instead of the tendency to "move every bill to
finance, or every bill to judiciary, or every bill to
resources."
10:58:39 AM
REPRESENTATIVE MILLETT said she would not vote for the bill
because she did not think there is a current deficiency in water
regulations; in fact, the legislation is far-reaching with
unknown implications to EPA and water quality standards. Alaska
already has a burden of federal policies on resource extraction;
furthermore, DEC has "done a great job."
10:59:55 AM
REPRESENTATIVE JOHNSON suggested the committee table the
legislation because of the need for further information.
11:00:17 AM
REPRESENTATIVE BUCH objected and maintained his motion to move
the bill.
11:00:30 AM
The committee took an at-ease from 11:00 a.m. to 11:02 a.m.
11:02:59 AM
REPRESENTATIVE JOHNSON made a motion to table the bill.
11:03:25 AM
REPRESENTATIVE BUCH objected.
11:03:46 AM
CHAIR EDGMON offered the floor to Representative Buch.
11:03:56 AM
REPRESENTATIVE BUCH said that HB 46 is restorative legislation.
11:04:36 AM
A roll call vote was taken. Representatives Johnson, Munoz,
Keller, and Millett voted in favor of tabling HB 46.
Representatives Edgmon, Kawasaki, and Buch voted against it.
Therefore, HB 46 was tabled in the House Special Committee on
Fisheries by a vote of 4-3.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HCR 15 Sponsor Statement.pdf |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HCR 15--AK Miners Assc Ltr 2.15.2010.PDF |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HB 365--Sponsor Statement.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--UFA Ltr..PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--SE AK Seiners Assoc Ltr..PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB365--CFEC Info on SE Seiners.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--AS 16.40.250.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--Capacity Reduction Summary-SE Revitalization Assn.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--Sec. 121 US Public Law 109-479 2007.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 46--Munoz, Johnson, et al to AG.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 46 |
| HB 46--AG to Munoz, Johnson, et al.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 46 |
| HB365-DFG-CFEC-03-05-10 Fiscal Note.pdf |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--SE Fishermen's Alliance Ltr.pdf |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--CFEC Ltr..PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HB 365--Sectional Analysis.PDF |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HCR15-LEG-COU-3-8-2010 Fiscal Note.pdf |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HCR 15--United Fishermen of Alaska Letter.PDF |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HCR 15--BBEDC Letter of Support.pdf |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HCR 15--Trident Seafoods Ltr..pdf |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HCR 15--BBNC Ltr.pdf |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HB365-REV-TAX-03-08-10 Fiscal Note.pdf |
HFSH 3/9/2010 10:15:00 AM |
HB 365 |
| HCR 15--Peter Pan Ltr.pdf |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |
| HCR 15--BBNA Ltr.PDF |
HFSH 3/9/2010 10:15:00 AM |
HCR 15 |