Legislature(2011 - 2012)CAPITOL 120
03/29/2011 05:00 PM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| Confirmation(s): Alaska Board of Fisheries (bof) | |
| HB85 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 85 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 85-MIXING ZONES/SEWAGE SYSTEMS
5:49:56 PM
CHAIR THOMPSON announced that the final order of business would
be HOUSE BILL NO. 85, "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."
5:52:28 PM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, presented
HB 85, paraphrasing from the sponsor statement, which read as
follows [original punctuation provided]:
A water discharge permit is a privilege to use our
public water. Alaska waters receive varying amounts
of pollution under the parameters of discharge permits
as specified by the Department of Environmental
Conservation. Mixing zones are areas permitted in a
water body surrounding or downstream of a discharge
where state water quality standards may be exceeded
while the effluent plume is diluted by the receiving
water.
Current regulations allow freshwater spawning areas to
be designated as mixing zones if salmon are not
actively spawning (laying eggs) at the time of
wastewater discharge and allows a mixing zone in the
area even while other species are laying eggs. HB 85
would change that regulation to prevent discharge of
pollutants into any freshwater spawning area of the
species identified on the statutory list if they spawn
in nests.
HB 85 is also a public right-to-know bill. It seeks
to create accountability by allowing the public to
have clear and easy access to information regarding
the amount and nature of pollutants that are
discharged under permit into Alaska water.
HB 85 allows the public to be involved if a commercial
sewage lagoon is expanded by more than 50 percent of
its originally permitted size. Current law doesn't
adequately provide opportunity for public awareness
and involvement in a comment process for the expansion
of commercial sewage containment facilities.
5:57:03 PM
REPRESENTATIVE HERRON queried whether HB 85 will, or may,
grandfather in existing waste water facilities that have mixing
zones, such as an unpermitted village wastewater mixing zone.
REPRESENTATIVE SEATON responded that existing facilities will be
grandfathered in.
5:58:05 PM
REPRESENTATIVE MILLER questioned whether statute exists
regarding what constitutes water pollution, or if HB 85
establishes a definition.
REPRESENTATIVE SEATON said that the water quality standards,
established by the state, are used for determining amounts and
levels of discharges that can be permitted. He noted that the
bill specifies exceptions for streambed disturbance, water
turbidity, and private sewage systems. The mixing zone permit
designates discharge concentrations and identifies the areas of
a discharge plume where water quality standards must be met.
5:59:10 PM
REPRESENTATIVE AUSTERMAN recalled a situation where a permitted
discharge was allowed into a stream that did not initially host
a salmon run but later became a spawning area.
REPRESENTATIVE SEATON acknowledged that this concern arose when
a manmade wastewater canal, in Valdez, had a pink salmon run
establish a spawning area, jeopardizing the facilities ability
to continue discharging, under an early version of the bill.
However, HB 85 addresses freshwater discharges only, and exempts
artificial channels, or settling ponds invaded by a listed
spawning species.
6:01:58 PM
LYNN KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), stated official opposition to
HB 85, and said the bill goes beyond what is necessary to
protect fish. She directed attention to the committee packet
and the written testimony provided by DEC [dated March 29,
2011].
6:02:55 PM
REPRESENTATIVE HERRON referred to the DEC testimony, page 2,
paragraph 2, and read:
While these protections are not necessary from a
scientific perspective ...
REPRESENTATIVE HERRON surmised and asked:
It's not scientifically necessary to protect
anadromous salmon spawning streams from mixing zones.
So, what is your scientific evidence that supports
this statement.
6:03:30 PM
MS. KENT answered:
You don't need a flat out prohibition on mixing zones
in spawning areas for any fish, including salmon,
although DEC regulations do prohibit mixing zones in
salmon spawning areas. We say that because there are
certain contaminants that don't have a negative effect
on fish; fecal coliform is a good example of that. ...
A fecal coliform mixing zone ... wouldn't have any
impact on salmon or spawning salmon. ... We did, in
our DEC regulation revisions for mixing zones, go
ahead and retain the prohibition on mixing zones for
salmon spawning areas more for the public perception
issue than because there was a risk to salmon from
authorized mixing zones.
6:04:34 PM
REPRESENTATIVE MILLER directed attention to the DEC written
testimony, page 1, and read:
Some pollutants cannot be reported in terms of
"amount", such as fecal coliform, radioactivity, and
turbidity.
REPRESENTATIVE MILLER asked how these pollutants are measured.
MS. KENT responded that the water quality standards are usually
based on a concentration of contaminant in the water body. It
is not the measure of discharge, but the resultant
concentration, which is considered. The water quality standards
are based on micrograms per liter often referred to as parts per
million or trillion.
6:06:16 PM
REPRESENTATIVE AUSTERMAN stated his understanding that DEC
prefers internal regulation to statutory law to govern this
issue.
MS. KENT explained that regulations, adopted in 1975, prohibited
mixing zones in anadromous fish spawning areas. The regulations
were changed in 2006 to allow mixing zones in non-salmon
spawning areas.
REPRESENTATIVE AUSTERMAN argued that if DEC is already following
the parameters under regulation why would the department object
to having statute reflect the same language.
MS. KENT said that the bill goes beyond what is in current
regulation.
REPRESENTATIVE AUSTERMAN referred to the DEC written testimony,
statement 5, and asked whether satisfactory, departmental action
has been taken on this point. [Statement 5 reads: HB 85 would
prohibit mixing zones that have become a fish spawning area
unless the discharge was from a public or private domestic
wastewater facility.]
MS. KENT answered yes.
6:09:48 PM
REPRESENTATIVE HERRON referred to the DEC testimony document,
statement 4, which states that it is not necessary to protect
non-salmon species, from mixing zones, because they aren't
economically important. He said:
You don't recognize subsistence [use] as an
economically important activity. And smelt are a
major food/prey species for salmon, and ... help
support healthy salmon stocks. They aren't
economically important from that perspective.
MS. KENT maintained that a flat out prohibition on mixing zones
in non-salmon spawning areas is not necessary. A nineteen part
requirement check list is necessary to obtain a permit, which
considers all of the aquatic life in a stream.
6:11:37 PM
REPRESENTATIVE AUSTERMAN queried whether documented cases exist
regarding domestic or industrialized discharge, which this bill
might help.
MS. KENT said that there are mixing zones that are authorized on
a temporal basis, allowing discharge into a stream as long as
fish are not present, and the bill would restrict these
discharges.
CHAIR THOMPSON opened public testimony
6:14:18 PM
BRIAN KRAFT, Lodge Owner, stated support for HB 85, and said
visitors expect to fish in unpolluted waters. Because of this
expectation, he said, charter operators are altering the type of
motors used on the river boats to minimize oil discharge. The
waterways should be kept as pristine as possible, as fishery
economics depends on the perception held by the public.
Additionally, there is a continuous cycle that needs to be
supported for the incubation of spawning fish.
6:16:57 PM
BRENDA DOLMA, stated support for HB 85, and said it is important
to protect the water and the perception that Alaskan salmon have
clean rearing conditions; an important image to maintain in
perpetuity.
6:18:55 PM
MICHAEL SATRE, Executive Director, Council of Alaska Producers,
testified in opposition to HB 85, paraphrasing from a prepared
statement, which read as follows [original punctuation
provided]:
The Council of Alaska Producers is a non-profit trade
association representing the producing large metal
mines and developmental projects in the state of
Alaska.
One of the many challenges of developing communities
and projects within our great state is managing the
impacts that we have on our aquatic resources. Every
community and camp generates some sort of wastewater
and most, if not all, projects have some sort of
process or contact water. If this water is to be
discharged back into the environment, there are very
strict water quality standards that must be met in
order to avoid impacting our surface waters.
Unfortunately, even with the best available treatment
technologies, it is still possible that treated water
may not meet our very stringent standards at the point
of discharge. This is why the State of Alaska, with
authority granted by the Clean Water Act and the EPA,
allows for the permitting of mixing zones in order for
wastewater that is slightly out of compliance to be
diluted into a permittable discharge.
These zones, whether they are in fresh or saltwater,
are permitted through a rigorous scientific process
and are truly a method of last resort to allow
communities and projects to meet water quality
standards.
In freshwater, the requirements for a mixing zone are
even stricter. Most importantly, if a proposed mixing
zone contains a spawning area for any of the five
Pacific Salmon species ... it cannot be permitted!
Mixing zones in freshwater spawning areas of other
fish must:
Meet statewide water quality standards plus other
conditions imposed by ADF&G and DEC.
Have an approved mitigation plan.
Not adversely affect the capability of an area to
support future spawning, incubation and rearing
activities.
Existing mixing zone regulations allow our communities
and our projects to meet our strict water quality
standards and ensure that we can strike a balance
between developing our state and protecting our
environment.
HB85 will disrupt this balance by introducing a
blanket prohibition on allowing mixing zones where any
anadromous fish spawn or where the resident fish redds
are located for the long list of fish species listed
in the proposed AS.46.03.065(2). This lack of
flexibility will place additional, possibly
insurmountable, hindrances on the development of our
state. CAP urges you to not pass the bill out of
committee.
6:24:20 PM
REPRESENTATIVE SEATON clarified that the bill only applies to
freshwater, and excludes saltwater zones. Neither does it apply
to turbidity mixing zones, and referred to the bill, page 3,
line 6, to paraphrase from the language, which read:
(c) The prohibition in (a) of this section does not
apply to a turbidity mixing zone for a suction dredge
placer mine or a mechanical placer mine that the
department finds, with the concurrence of the division
of the Department of Fish and Game that has
responsibility for fish habitat, will not adversely
affect the present or future spawning, incubation, or
rearing of fish included under (a) of this section.
REPRESENTATIVE SEATON pointed out that mixing zones are allowed,
during spawning times for a list of species, which includes:
Arctic char, Dolly Varden, lake trout, landlocked coho, king,
and sockeye salmon, rainbow trout, sheefish and whitefish.
These are important subsistence species in Alaska's inland
waters. He said:
I think that DEC's comments that, "yes we have an
allowance, or grandfathering, for the wastewater
discharge," but they would like the ability to do
industrial pollutants, or industrial discharges that
are above the level on those spawning areas, that's
what I wish to say no to. ... Development should occur
in a way that protects our renewable resources, and
our fish species are important to all Alaskan
residents.
REPRESENTATIVE SEATON directed attention to the committee packet
and the chart in the DEC handout titled, "Mixing Zones &
Spawning Areas," to point out that the "old" 2003 regulations
are what the department currently enforces, and align with the
provisions proposed in HB 85. The 2006 regulations have not
been approved by the EPA (Environmental Protection Agency), and
the chart should be read bearing this in mind. He explained
that, since the original adoption in 1975 and through lack of
regulatory or statutory action, interpretation of the term
"spawning area" has changed. The department has written policy
and adopted regulations allowing higher levels of pollution,
based on the reinterpretation. The idea that pollution
discharges will not have future effects on an area where fish
spawn is dubious, he cautioned. He asked the committee to focus
attention on particular discharges, such as copper. The meaning
of concentration and the scope of a mixing zone are also
important to understand. He stressed:
I know DEC says ... "our [regulations] say we're not
going to influence future [conditions]." But unless
we know what those amounts are that are going out
there over time, then we're not going to really be
able to understand what the potential impact is.
That's what this bill is trying to get to: to make
sure that our renewable resources ... are protected.
6:29:56 PM
REPRESENTATIVE HERRON asked for comment on the testimony
statement that, "No problem has been identified that this bill
is meant to correct."
REPRESENTATIVE SEATON replied that it is difficult to determine
to which part of the bill the statement refers. However, he
said, HB 85 corrects the public having no knowledge of what
chemicals are being discharged and concentrating over time in a
particular system, by requiring understandable disclosure.
Also, DEC has allowed a vastly increased sewage lagoon
discharge, in a residential area without public notice or a
right to comment. Thirdly, he said mixing zones in areas of
subsistence fish populations are a problem. He said:
Can I go out and show you a fish kill? I want to
prevent that from ever happening, just like the
regulations were before 2003, that that was not
allowed, and I don't think it should be allowed now.
I think that development should go forward, but we
want responsible development ... done in a way that we
never have those problems where I can come to you and
say, 'Here's a picture of a big fish kill.' We never
want to see that, and that's what this bill is hoping
to accomplish.
6:31:56 PM
CHAIR THOMPSON announced that HB 85 would be held.