Legislature(2015 - 2016)CAPITOL 120
04/07/2015 05:00 PM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB110 | |
| HCR10 | |
| HB119 | |
| HB179 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HCR 10 | TELECONFERENCED | |
| *+ | HB 179 | TELECONFERENCED | |
| *+ | HB 119 | TELECONFERENCED | |
| *+ | HB 110 | TELECONFERENCED | |
HB 119-LEG. APPROVAL OF BRISTOL BAY SULFIDE MINE
5:26:52 PM
CHAIR STUTES announced that the next order of business would be,
HOUSE BILL NO. 119 "An Act relating to the Bristol Bay Fisheries
Reserve; and providing for an effective date."
5:27:17 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature,
presented HB 119 as prime sponsor, and reminded the committee
that in November 2014, Alaskans voted overwhelmingly to pass
Ballot Measure 4, requiring legislative approval of any large
scale mine within the Bristol Bay Watershed. Throughout the
campaign, this issue was mining versus fish, and Alaskans
declared that in this location, with this mine, they are not
willing to jeopardize the fishery. He explained that HB 119
calls for a comprehensive review by the Department of Natural
Resources (DNR), Department of Fish & Game (ADF&G), and
Department of Environmental Conservation (DEC), and requires
each commissioner to find "beyond a reasonable doubt" that any
proposed metallic sulfide mining not presently permitted, larger
than 640 acres in size, poses no threat to the fishery. He
advised that the concept is based upon the Bristol Bay Forever
Initiative, which was based upon the language of the 1972 Jay
Hammond, Bristol Bay Fisheries Reserve law, and noted that the
1972 law included a requirement that any oil and gas
developments in the Bristol Bay region receive legislative
approval, and this legislation extends this requirement to mines
in the same area. The bill also clarifies what is meant by
fisheries in a far more comprehensive manner than the 1972 law
or the initiative, he explained. He said that given this bill
impacts the citizens' initiative, he touched on the
constitutional aspects in that the case law in amending an
initiative primarily is the Warren I, and Warren II decisions
concerning potential rollbacks of initiative language.
Obviously this bill does not rollback the language of the
initiative, but gives it more teeth, he offered.
5:29:19 PM
REPRESENTATIVE JOSEPHSON provided a section analysis,
paraphrasing from a prepared statement, which read as follows
[original punctuation provided]:
Section 1: Requires development of regulations
concerning legislative approval. Defines the meaning
of "fisheries" and "permits and authorization".
Section 2: New subsection requires the commissioners
of the Department of Fish and Game, Department of
Environmental Conservation, and Department of Natural
Resources to make independent determinations that any
large-scale metallic sulfide mining will pose no
danger to the fisheries.
Section 3: Adds immediate effective date.
5:29:22 PM
REPRESENTATIVE JOSEPHSON stated that Section 1 broadly defines a
variety fisheries, and the Bristol Bay Fisheries Reserve
includes subsistence, commercial, personal use, and a great deal
of sport fishing, and it also creates the definition for permits
and authorizations. He then referred to Section 2, and advised
this section reads "prior to legislative authorization, which is
a current requirement for a large-scale metallic mine, and
commissioners must make an independent finding that beyond a
reasonable doubt any proposed mine constitutes no danger to the
fisheries." Following that [finding], is a judicial review of
the permits and authorizations and, he explained, the matter
would then move to the legislature as called for in the
initiative. He pointed out that the bill calls for a
reconsideration of the legislative approval if there has been
significant, but not minor, changes to the permits and
authorizations previously granted which would entail each of the
three commissioners making a revised, independent determination
that an applicant has proven beyond a reasonable doubt that a
large-scale mine will not constitute a danger to the fisheries.
He noted the burden remains on the mining operation and not on
the State of Alaska. He remarked that this section also calls
for an inter-agency process wherein each department engages in
information sharing while conducting their own separate and
independent analysis of the efficacy of the mine relative to
impacts on fisheries. Additionally, he said, a peer review
process will be conducted in order that the findings of each
department can be scientifically proven as reliable and
verifiable.
5:31:11 PM
REPRESENTATIVE JOSEPHSON continued by discussing the standard of
review suggested by the legislation, in that currently in Alaska
law, the beyond a reasonable doubt standard can be seen in many
civil context, as it is not just a criminal standard, including
Child in Need of Aid cases, Indian Child Welfare Act cases, and
many cases involving hospitalization commitment. He referred to
two personal injury actions where the beyond a reasonable doubt
standard was used: one involving DNA testing wherein involving
sexual abuse by members of the clergy; and an Alaska Supreme
Court case involving wage and hour employment classification.
He explained it fits into the natural resources context because
beyond a reasonable doubt standard was used in forestry laws in
Washington State, and there is a Pennsylvania mining law
implementing beyond a reasonable doubt. In Pennsylvania law, §
86.102. "Areas where mining is prohibited or limited," there is
a prohibition on surface mining operations within 100 feet of
the bank of a perineal or intermittent stream, which read:
(12) ... The Department may grant a variance from
this distance requirement if the operator demonstrates
beyond a reasonable doubt that there will be no
adverse hydrologic impacts, water quality impacts or
other environmental resources impacts as a result of
the variance...
5:32:50 PM
REPRESENTATIVE JOSEPHSON offered that within Title 5 AAC, the
Board of Fisheries has created a series of regulations using the
"precautionary approach" for management of Alaska's fisheries
which is part of a comprehensive policy for the regulation and
management of sustainable salmon fisheries. He quoted, "It is
the goal of the policy ... in Title 5, ... under this section to
ensure conservation of salmon and salmon's required marine and
aquatic habitats protection of customary and traditional
subsistence uses and other uses." The Chairman of the Board of
Fisheries, he said, took an express position in a letter to the
legislature on January 10, 2010, which read, "The legislature
should enact any additional safe guards which are considered
prudent to provide strict protections to the fish and game
habitat of the drainages ... again, this is about Bristol Bay
drainages ... to prevent any chance of environmental damage."
He referred to the $10,000 fiscal note and explained that the
others get more substantial, but not extremely substantial and
offered that the $10,000 is currently in DNR, and the others
refer to the out years of 2019 having a fiscal impact. He
submitted that if the mines are postponed there would be no
impact until further down the road.
5:34:45 PM
REPRESENTATIVE JOSEPHSON opined that some have said this bill
will help insulate and protect the state from litigation and
liability in the event a mine, of the size in question, is
permitted and developed and problems arise from that mine
impacting any fishery. The argument there is, "We had this
incredibly strict standard, don't pick on us if it goes badly."
In summary, he related, without this bill commissioners would be
free to use a much lower standard as they review permits and
commissioners would more easily define the fishery as being
commercial fishery, and not other fisheries. He pointed out
that the 1972 law does not define subsistence fishery as
something the legislature should consider. He remarked that
without the bill: only DNR would prepare a report to the
legislature as called for under the initiative whereas this bill
requires that DEC and ADF&G commissioners are involved;
regulations could be adopted allowing the state to take the
burden on its shoulders rather than keeping the burden with the
producers; the legislature would get one bite at the apple even
though a mine could expand, evolve, and change as they so often
do; and the express right to judicial review would be absent.
He opined that the permitting process is intended to strike a
balance between common values, such as economic development and
conservation, but the process sometimes favors the better
financed interests of industry as evidenced by the very small
number of permits denied to projects over the last ten years.
For example, he said, within a research report spanning the last
ten years prepared by the Division of Mining, Land, and Water,
108 out of 7,971 permits were denied, but acknowledged that some
are denied due to withdrawal, but that actual denials are
"extremely" uncommon. He noted that these measures are intended
to reduce the risk of development to a tolerable level; however,
in this case the bill reads that the risk must be even lower.
He stated that, "For this particular fishery in this particular
place we must exercise an overabundance of caution," and offered
that members may disagree with this measure, but it is within
the scope of this committee as it relates to the preservation
and protection of one of Alaska's most prized resources. He
stressed that HB 119 is not an anti-mining bill but rather about
protecting these fish in this particularly sensitive and special
area. The legislature needs the best scientific product before
it comes up on the legislature's floors for final approval of a
large-scale mine in Bristol Bay, he opined.
5:38:26 PM
REPRESENTATIVE HERRON pointed out that Representative Josephson
clearly articulated that this legislation is needed because
there could be a DNR commissioner and a legislature not paying
attention, and there could be vote of legislative approval, and
asked whether that would be by simple majority.
REPRESENTATIVE JOSEPHSON answered that it is by simple majority
under the initiative.
REPRESENTATIVE HERRON noted that Representative Josephson could
have the bill require two-thirds.
REPRESENTATIVE JOSEPHSON responded, tongue in cheek, that he
views that suggestion as a friendly amendment. He described
this is a good, necessary, and ambitious bill, and such an
amendment would make it even more ambitious. He opined that if
there is a meritorious project, these three commissioners will
make that determination in peer review. He noted that the
potential mines at issue are any within the Jay Hammond Reserve,
and the mine that "everyone has heard about" has said fish
first, which he agrees with.
5:39:56 PM
REPRESENTATIVE HERRON referred to Section 2, noting it does not
explain whether a minority of those commissioners can [negate]
it.
REPRESENTATIVE JOSEPHSON explained that should DNR and DEC,
subsequent to a peer review, determine there is beyond a
reasonable doubt no chance of damage to a fishery of any sort,
and ADF&G determines it is a threat, that determination would
deny the project and; therefore, it would not come before the
legislature.
5:40:48 PM
REPRESENTATIVE MILLETT asked whether Representative Josephson is
uncomfortable with Alaska's current permitting process for
large-scale mines, or has there been a problem with DNR, DEC, or
ADF&G in their recent findings with permitting mines.
REPRESENTATIVE JOSEPHSON agreed he is uncomfortable with the
current process, and advised that in 2013 Legislative Legal and
Research Services prepared a document offering an overview of
changes in the last 13 years in the regulatory process. He
cited a number of projects and how they were handled, which
included: the Coastal Zone Management Repeal, new mixing zones
allowing for toxins in an anadromous streams which were not
allowed prior to House Bill 160 (2003) making changes to Title
18 AAC, and House Bill 129 which read, "We're only going to
review oil and gas leases at the outset for 10 years, no public
comment during that period." He advised there have been a
series of decisions from the Supreme Court, and legislation that
has gone in the opposite direction, and he has concerns.
5:42:18 PM
REPRESENTATIVE MILLETT asked Representative Josephson to point
to a permitted large-scale mine in the last ten years wherein he
believes fish required protection.
REPRESENTATIVE JOSEPHSON listed concerns with the Illinois Creek
Mine [located in the Kaiyuh Mountains, west-central Alaska], and
the Rock Creek Mine located on the Seward Peninsula, as both
mines never came to fruition yet dirt was turned and $20 million
of remediation is necessary on the Seward Peninsula. He
questioned whether Alaska has enough boots on the ground to
monitor, and referred to the Pebble Mine that self-reported 44
water violations and expressed concern because Pebble Mine self-
reported the violations and Alaska was not aware of the
problems. The trans-boundary issue is a real concern for
Southeast Alaska, and he opined that the administration is
concerned.
5:43:21 PM
REPRESENTATIVE MILLETT inquired why Representative Josephson
would not put a bill forward changing the permitting process
rather than presenting HB 119 with a large fiscal note. She
opined that if there was another large mine that went to
permitting it would raise the state's cost incredibly. She
stressed that the legislature is cutting education, yet he wants
to add mine permitting to the pile of money Alaska does not have
just in case someone comes forward to permit a large mine
because he is uncomfortable with the manner Alaska permits
mines. She suggested moving toward permitting changes rather
than another study and layer of government that is scaring
industry away from the State of Alaska.
REPRESENTATIVE JOSEPHSON responded that new permits would also
be another layer of regulations with costs, and he does not know
whether that remedy would change much of the result. Statistics
show permits are generally granted, although with tough
conditions, he acquiesced. He reiterated that given Alaska has
the best wild salmon fishery on the planet, it is smart thinking
when three commissioners review preliminary permits and the
"whole thing" in total, and make an independent finding with a
peer-reviewable inter-agency review.
5:45:06 PM
REPRESENTATIVE MILLETT asked what amount of time this would add
to a large mine project in realistic terms. Bristol Bay Pebble
Mine had multiple studies which was not enough so where do the
studies stop - until there is a piece of data that can stop a
complete mine, she questioned.
REPRESENTATIVE JOSEPHSON responded the answer to Representative
Millett's second question would be after HB 119 is passed is
where to stop. With respect to her first question, he could
only surmise that is could be six months, but stressed that
people and legislators are entitled to confidence in the
process.
CHAIR STUTES opened public testimony.
5:46:30 PM
DAVID HARSILA, President, Alaska Independent Fisherman's
Marketing Association (AIFMA), testified in support of HB 119,
and said the Alaska Independent Fisherman's Marketing
Association (AIFMA) board met with mining officials from a
prominent company approximately 10 years ago and advised its
permitting process research in Alaska indicated the State of
Alaska would never deny permits, which referred to large-scale
open-pit mines that would be developed in Bristol Bay Watershed.
Its explanation and confidence about Pebble Mine convinced the
AIFMA board, at that time, that this was a significant and a
real issue, he conveyed. Since that time AIFMA has been
searching to provide a higher standard when applications for
large-scale open-pit mines are considered and the opportunity to
address this issue is now, before a permit application is
received, and before a mine is developed as opposed to after the
fact. He pointed out that the largest natural run of Sockeye
Salmon in the entire world resides in the Bristol Bay
Watersheds, and it is at stake. He urged the committee to
protect the Bristol Bay Watershed from large-scale open-pit
mining and the damages it could incur.
CHAIR STUTES closed public testimony after ascertaining no one
further wished to testify.
5:49:28 PM
REPRESENTATIVE KREISS-TOMKINS moved to report HB 119, labeled
29-LS0424\H out of committee with individual recommendations and
the accompanying fiscal note.
REPRESENTATIVE MILLETT objected.
5:49:54 PM
A roll call vote was taken. Representatives Foster, Ortiz,
Kreiss-Tomkins, and Stutes voted in favor of HB 119.
Representatives Johnson and Millett voted against it.
Therefore, HB 119 passed and was reported out of the House
Special Committee on Fisheries by a vote of 4-2.
5:50:30 PM
The committee took an at-ease from 5:50 p.m. to 5:52 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 119 Supporting Document - BBFR Map.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Pebble 2.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Pebble 1.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Pebble 3.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Talking Points.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Pebble 3.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - BBFR Map.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Talking Points.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Pebble 1.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 119 Supporting Document - Pebble 2.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 119 |
| HB 110 Oppose CDFU.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose UFA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose Martin.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose SEAFA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose AK Salmon Alliance.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose UCIDA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HCR 10 Support DOL.pdf |
HFSH 4/7/2015 5:00:00 PM |
HCR 10 |
| HB179 Explanation of Changes ver A to ver E.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
| HB179 ver E.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
| HB179 Sectional ver E.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
| HB 179 Support Tlingit and Haida.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 179 |
| HCR 10 Support BBB Chamber of Commerce.pdf |
HFSH 4/7/2015 5:00:00 PM |
HCR 10 |
| HB 110 Oppose SEAS.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose ASA.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose Lee.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |
| HB 110 Oppose Evans.pdf |
HFSH 4/7/2015 5:00:00 PM |
HB 110 |