Legislature(2013 - 2014)SENATE FINANCE 532
04/04/2013 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB77 | |
| SB18 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 18 | TELECONFERENCED | |
| += | HB 77 | TELECONFERENCED | |
| *+ | SB 74 | TELECONFERENCED | |
| + | TELECONFERENCED |
CS FOR HOUSE BILL NO. 77(RES)
"An Act relating to the Alaska Land Act, including
certain authorizations, contracts, leases, permits, or
other disposals of state land, resources, property, or
interests; relating to authorization for the use of
state land by general permit; relating to exchange of
state land; relating to procedures for certain
administrative appeals and requests for
reconsideration to the commissioner of natural
resources; relating to the Alaska Water Use Act; and
providing for an effective date."
9:17:28 AM
DANIEL SULLIVAN, COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES (DNR), highlighted the administration's efforts
on permitting reform. He commented that permitting reform
and modernization efforts entailed establishing systems
that were more "efficient, timely, and certain." The reform
effort was in its third year and progress was made.
Permitting reform enjoyed bi-partisan support in the
legislature and benefitted every Alaskan. He emphasized
that HB 77 and the permitting reform efforts were not about
permitting the Pebble Mine. The department was fully
committed to protecting fish habitat. The legislation would
not weaken fish habitat protection. He noted the backlog in
the department's reservations and stated that DNR
adjudicated thirty three reservations in the last three
years. Most of the adjudications were between DNR and the
Department of Fish and Game (DFG) and resulted in
protecting fish habitat. The reduced backlog and
adjudications demonstrated the department's commitment to
protecting fish habitat.
CORA CAMPBELL, COMMISSIONER, DEPARTMENT OF FISH AND GAME
(DFG), communicated that she heard a lot of "serious
concern" during public testimony on HB 77[See BASIS HB 77
minutes 04/03/2013 1:42 PM]. She stated that most
testifiers believed that the legislation reduced protection
for fish habitat. She maintained that the legislation did
not affect DFG's Title 16 authority to protect fish and
fish habitat. The bill did not alter statutes that required
DNR to consult with DFG when considering fish habitat
impacts for a water use authorization. She shared that many
testifiers recognized Alaska's world class fisheries and
sustainable management. She stressed that with passage of
the bill, all of the state's fisheries protection remained
intact. She mentioned the concerns from "partners" and
individuals who had gathered data for a water reservation
application and believed that the data became unacceptable
if HB 77 was adopted. She countered that the data would
remain usable to move an application forward. She continued
that some testifiers believed the legislation created an
obstacle for those pursuing a water reservation to access
both DNR and DFG. She explained that both departments must
review and approve the applications. She encouraged
applicants to create a partnership with the departments
from the start of the process. She indicated that the water
reservation process would work more efficiently under the
legislation.
Commissioner Campbell addressed the concerns related to the
DFG zero fiscal note. The department determined that
existing staff could handle any additional workload from
the legislation. She reported that staff was currently in
place in the departments "water shop." Staff was tasked
with reviewing DNR's water reservations and partnering with
the public.
Commissioner Campbell continued that some testifiers felt
that obtaining a water reservation was the only way to
ensure an adequate water supply in order to protect fish
habitat. She stressed that DFG had the ability to review
any DNR water authorizations. In addition, DFG had a
separate fish habitat permitting process that mandated fish
habitat protection when necessary. A water reservation was
not the only avenue to protect fish stream habitat.
9:25:42 AM
Commissioner Sullivan asserted that counter to public
perception; the legislation would not diminish public
participation. The department encouraged more participation
early on in the application process in order to address
concerns. He informed the committee that a provision in HB
77 authorized DNR to issue preliminary best interest
findings. The provision provided for two opportunities for
public comment and statutorily ensured more public notice
in the process. He mentioned that DNR made efforts to
increase public notice especially in rural areas. He
exemplified a recent DNR draft Yukon area plan. The Tanana
Chiefs requested an extension for the public notice period
and asked for a briefing from the department. The
department agreed. The public notice period remained open
and DNR provided the briefing. He noted a similar situation
in Bristol Bay with the Bristol Bay area plan. The
department was eager to extend the 30 day deadline for
public comment to ensure full public participation.
Senator Hoffman observed that the vast majority of
dissenting public testimony centered on Section 40 of the
legislation, which abrogated the ability for a "person" to
reserve water rights. He asserted that individual water
rights were at the heart of the issue. He stressed that
Section 40 commanded focused scrutiny by the committee. He
referred to a letter from the NANA Regional Corporation
(copy on file) to the governor dated March 30. He read the
following:
"Section 40 would eliminate the ability of "a person"
to reserve water rights. Under the existing statute
(AS 46.15.145(A)), Alaska Native Corporations ("ANCs")
created pursuant to the Alaska Native Claims
Settlement Act, as well as other entities and
individuals, are eligible to apply for reserved water
rights as 'a person'."
Senator Hoffman stated that the courts would be the only
avenue for an individual to pursue water rights, if the
right was removed from statute. He pronounced that, "the
people of Alaska deserve better." He felt that individual
water rights were inviolable and its elimination was
contrary to constitutional rights. He was bewildered why
the administration was attempting to eliminate individual
water rights. He felt that it was his job to protect such a
fundamental right for the citizens of the state. He
estimated that 90 percent of the testimony on HB 77
strongly protested the removal of individual water rights.
He reiterated that water rights were guaranteed by the
state constitution. He called for the elimination of
Section 40 of the bill.
9:34:10 AM
Commissioner Sullivan acknowledged the discussion centered
on "water authorizations" during public testimony. He
identified three types of authorizations that were issued
by the state: (1) Temporary water use permits (TWUPS), (2)
Water rights, (3)Water reservations. He delineated that
TWUPS and water rights involved the removal of water from a
water body. Anyone can apply for either one and were the
most requested permits. The department issued thousands of
TWUPS each year and strove to do so in a timely manner. He
continued that water rights required a more intensive
application process. Once granted the right was permanent.
He communicated that HB 77 did not affect TWUPS and water
rights permitting. He stressed that anyone could come to
DNR for a temporary water permit or water right. He
explained that an application for a water reservation was a
much more involved process that included three to five
years of data collection. He noted that DNR received much
fewer applications for water reservations. The most
frequent applications came from DFG for fish habitat
protection. He explained that the bill changed the water
reservations application process and proposed that the
application for water reservations "come formerly from
public agencies to manage the public resource." He
emphasized that "individuals, companies, NGO's, and tribes
could initiate the application process … through an
agency."
Commissioner Sullivan addressed a question from the
previous day regarding the necessity to change the statute.
He explained that Alaska had an abundance of water. The
department was concerned with a recent legal trend of
rulings from court cases that prohibited DNR from issuing
any TWUPS or water rights from the body of water in
question until the water reservation was adjudicated. The
process could take many years. The department believed that
the situation would interfere with the timely issuance of
TWUPS and water rights applications. He reiterated that the
legislation would not affect the vast majority of water
right applications.
Senator Hoffman understood the issue. He knew that water
right reservations were few in number. He opined that the
problem was that citizens had to apply through an agency to
obtain a water reservation. He emphasized that it was a
constitutional right for citizens to directly apply to the
government for a water right. He believed the citizens of
Alaska were being treated as "second class citizens in
their own state." Considering the small number of water
reservation applications why bother changing the statute.
Requiring that an individual apply through an agency for
water reservations made the application process more
onerous as opposed to streamlined, which was counter to
what the administration was striving to achieve.
Commissioner Sullivan stated that a court order could
prohibit issuance of TWUPS or water reservations until a
water reservation was resolved. He judged that situation
was not an example of streamlining. Senator Hoffman
suggested that another solution was possible that did not
infringe on individual rights. Commissioner Sullivan
responded that the court issue "slapped the door on
individual's rights to access water."
9:42:23 AM
Senator Olson stated that he wrote a letter to Co-Chair
Meyer that requested the bill be placed in a subcommittee
to address the constitutional issues the bill raises.
Co-Chair Meyer stated that he was taking the suggestion
under advisement.
Senator Dunleavy wondered whether taking water reservation
applications to court was employed as a strategy to prevent
projects from moving forward. Commissioner Sullivan replied
that he did not want to hypothesize about the intentions of
applicants. He restated that the departments concern was
over the possibility that the legal trend had the potential
to delay TWUP and water reservation applications. He added
that water reservations were reissued in perpetuity after
an initial ten year review period. Water reservations
demanded responsible management. He thought that having the
water reservation managed by a state agency was preferable.
Co-Chair Kelly asked how long it took the agency to issue a
water reservation. Commissioner Sullivan answered that it
took three to five years of data collection.
Co-Chair Kelly wondered whether a water body with multiple
reservations could be made concurrently.
WYNN MENEFEE, DEPUTY DIRECTOR, DIVISION OF MINING, LAND,
AND WATER, DEPARTMENT OF NATURAL RESOURCES, responded that
an entire water body was not considered. A water
reservation adjudication must specify a specific segment of
a water body.
Co-Chair Kelly wondered whether DNR could process multiple
water reservations for the same water body. Mr. Menefee
explained that only if the reservations were on the same
segment of the water body.
Co-Chair Kelly surmised that environmental groups could use
water reservations as a strategy to shut down projects. Mr.
Menefee replied that the strategy might exist but could not
predict how successful the outcome would be.
Commissioner Sullivan restated the departments concern that
taking water reservation adjudication to court delayed TWUP
and water right applications.
Co-Chair Kelly felt that "a flaw" existed in current law
that allowed "outside groups to control the length of time
it took to develop projects" through manipulation of the
process. He did not believe it was a constitutional issue.
9:50:32 AM
Senator Olson asked whether the state could seek a summary
judgment against such tactics. Commissioner Sullivan
related that the department did not have to grant a water
reservation application but the department had to process
every water reservation application. He restated that court
procedures might prohibit other water permits from being
issued until the water reservation was adjudicated. He
believed it was a "troubling trend."
Co-Chair Kelly believed that outside groups were "shutting
the state down." Taking water reservation adjudications to
court was the groups "clever" tactics to stop development
in the state. He thought that the constitution gave the
legislature the authority to determine how to administer
water rights. He believed that state administration of
water rights was not a constitutional issue. He viewed
Section 40 as a response to stop the outside environmental
groups from shutting down development in the state.
Vice-Chair Fairclough asked whether individuals were able
to directly petition for water reservations in other
states. Commissioner Sullivan answered in the negative.
Vice-Chair Fairclough felt that Alaskans valued direct
local control. She initiated a series of questions in an
effort to understand the permitting process. She asked
whether the water reservation statute was adopted in 1986.
Mr. Menefee answered in the affirmative.
Vice-Chair Fairclough wondered whether an individual had
ever qualified for a water reservation in the state. Mr.
Menefee answered that the state never fully adjudicated an
application from an individual.
Vice-Chair Fairclough recapped that an individual person
never fully qualified for a water reservation in the state.
She asked how the data collection process worked. Mr.
Menefee elaborated that the data collection process varied
depending on the type of resource you wanted to protect. In
the case of fish habitat a person would have to study the
volumes of water in a water body segment over a period of
time. Statistically 5 years was necessary to balance out
weather trends. The evaluation also included the species
living in the habitat.
Vice-Chair Fairclough asked how an individual Alaskan would
find out what criteria had to be met and the data to meet
the applications requirements. Mr. Menefee stated that the
person would work with the agencies. In the case of fish
habitat, DNR would direct the individual to DFG.
Vice-Chair Fairclough asked who in DFG would help the
individual obtain the data. Commissioner Campbell replied
that the department had a "water shop" with staff tasked
with assisting the applicant to "navigate the process." She
noted that the department delineated all data required to
complete the application.
Vice-Chair Fairclough wondered how long the process took.
Commissioner Campbell explained that two approaches
existed. An individual could proceed unaided. The
preferable approach was when the person gathered the data
and DFG reviewed the data and assisted the person with the
application. She reiterated that the timeliest requirement
was gauging water volume and not due to a backlog in the
department.
Vice-Chair Fairclough wondered whether there was a general
checklist or whether each applicant's requirements
differed. Commissioner Campbell did not know and agreed to
provide the information.
Vice-Chair Fairclough queried how the agencies can trust
whether the data collected was accurate. Commissioner
Campbell informed the Senator that standard equipment
existed for stream gauging to determine water flows.
Mr. Menefee continued that DNR worked through USGS {United
States Geological Survey] on stream gauging. He noted that
USGS was the stream gauge experts and provided the
standards for accurate results. He added that the statute
defined the requirements for the application. The
applicants worked with DNR to determine the best techniques
to meet the requirements and correctly collect the data.
Vice-Chair Fairclough deduced that a person could work with
the departments to complete the application. She queried
the cost of the equipment necessary and wondered whether
and individual could successfully complete the application
on their own. Mr. Menefee explained that most individuals
contracted with a company that performed water gauging.
Every individual worked through government agencies to
develop an application plan and begin the process.
Vice-Chair Fairclough wanted to demonstrate that a state
agency did not detract an individual from the process. She
concluded that the government agencies were readily
available to assist applicants.
10:08:22 AM
Commissioner Sullivan concluded that the administrations
highest priority was to work with the native community on
water issues and intended to do so.
CS HB 77 (RES) was HEARD and HELD in committee for further
consideration.
10:09:58 AM
AT EASE
10:17:42 AM
RECONVENED
10:18:48 AM
AT EASE
10:20:15 AM
RECONVENED
| Document Name | Date/Time | Subjects |
|---|---|---|
| Board of Regents Letter of Support.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| SB 74 SS.docx |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| Sectional Analysis for SB 74.docx |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| UA Building Inventory.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| University Facilities Charts.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| Ann Yadon letter 2012.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| FW Northern Susitna Institute CAPSIS request.msg |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| FW Tsunami debris cleanup funding testimony.msg |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| SB 18 Amendment 1 Meyer.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| SB 18 Amendment 2 Dunleavy.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| SB 18 TotalBill_Numbers and Language.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| SB 18 Work Draft Version P 040413.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| Mayor DeVilbiss letter.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| McKinley View support.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| Public Testimony 4 1 13 Senate Finance Committee.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| Ruth Wood's Letter.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| Sassan Mossanen support letter.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| SB18_4113.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| TAT support.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| TCC support.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| Testimony SB 18 ALPAR Sen Fin.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 18 |
| SB074-DOA-DOF-3-29-13.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| SB074-UA-SYSBRA-4-01-13.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| SB074-DOR-TRS-03-29-13.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |
| SB 74 - University Reponse to Questions from 4 4 13.pdf |
SFIN 4/4/2013 9:00:00 AM |
SB 74 |