Legislature(2019 - 2020)BARNES 124
02/14/2020 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB138 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 138 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 138-NATIONAL RESOURCE WATER DESIGNATION
1:03:38 PM
CO-CHAIR TARR announced the only order of business would be
HOUSE BILL NO. 138, "An Act requiring the designation of state
water as outstanding national resource water to occur in
statute; relating to management of outstanding national resource
water by the Department of Environmental Conservation; and
providing for an effective date."
[Before the committee was the committee substitute for HB 138,
Version K, adopted as a working document during the bill hearing
on 2/10/20 and held over with public testimony open.]
1:06:45 PM
JON LYMAN gave a brief history of his work with the Alaska
Department of Fish and Game (ADFG) and his personal experience
living and working in Bush Alaska; he stressed the value of
salmon and clean water to Alaskans living in villages. Mr.
Lyman said similar to [the New England Fish Company], HB 138
guts Alaskans' right to clean water. He remarked:
One of the main reasons Alaskans voted for this state
was to regain control of their fish and wildlife
resources. New England Fish, in, in retribution for
that, shut off virtually every run in the state for
the last ten years before we became a state, and we
went through twenty years of absolute hell with
everyone from subsistence to commercial to personal
use to sport, before the Alaska Department of Fish and
Game finally got that resource back to health.
MR. LYMAN recalled discussions about protecting water and the
environment and opined [the process written in HB 138] would
prevent local groups from preserving their fisheries resource.
For example, mining activities by the proposed Pebble Mine could
affect the entire watershed and the affected communities could
not respond. He concluded that fish are a billion-dollar
resource in Alaska, but are not valued as such, and expressed
his opposition to HB 138.
1:10:17 PM
KATHRIN MCCARTHY said she has been an Alaska resident since 1965
and expressed her deep opposition to HB 138, because it turns
the process into a political process; for example, the bill
grants the governor the discretion to appoint a nominating board
and removes a right granted by the Clean Water Act. She said
the process is deeply undemocratic and prevents people who don't
have money to designate and protect pristine waters. She
pointed out Alaska is the last state to have potable water on
its land. Ms. McCarthy referred to the serious effects of a
recent drought in Southeast Alaska. She concluded HB 138 is
anti-subsistence and, from her experience in rural communities,
does not reflect the needs of Alaska Native people.
1:12:46 PM
ROBERT ARCHIBALD said he has lived in Alaska since the '60s. He
said outstanding national resource waters are national and he is
troubled by the direction of the bill. Using seven subject
matter experts, who are nominated by the governor and approved
by the legislature, may take the science out of the spectrum.
He expressed his opposition to HB 138, which he said would
politicize the issue and take science out.
1:14:25 PM
BOB SHAVELSON, Advocacy Director, Cook Inletkeeper, informed the
committee Cook Inletkeeper is a nonprofit organization formed in
1995 that has over 8,000 members throughout Southcentral Alaska
and that has been involved in salmon and salmon habitat issues
and the Clean Water Act for over 25 years. Cook Inletkeeper is
strongly opposed to HB 138, which has been amended and now adds
more bureaucratic paralysis that would prevent nominations
seeking to nominate important waters. Mr. Shavelson pointed out
the Alaska Mining Association has paid a lobbyist $120,000 over
two years to promote the legislation and represent its
interests; however, he opined the interests of the Alaska Mining
Association are not the public's interests, and nonprofits and
citizens' groups do not have equivalent funding.
1:16:17 PM
LINDSAY LAYLAND, Deputy Director, United Tribes of Bristol Bay
(UTBB), said UTBB is a tribal government consortium,
headquartered in Bristol Bay, which represents fifteen tribal
governments and over 80 percent of the in-region population that
depends on subsistence activities and clean waters for a
traditional way of life. Along with other tribal governments,
UTBB has submitted proposals to nominate and designate Tier 3
waters. These proposals have been blatantly disregarded and now
would be directed to a politically motivated and politically
driven process within HB 138. She expressed UTBB's opposition
to HB 138 and said it is the responsibility of the Department of
Environmental Conservation (DEC), as water quality experts, to
designate Tier 3 waters because a decision by an appointed board
or the legislature politicizes the process rather than utilizing
sound science and other relevant factors. She strongly urged
for the committee to consider major amendments to HB 138 that
would eliminate the appointed commission and legislative
approval or action in designating outstanding national resource
waters or Tier 3 waters.
1:18:45 PM
KATHERINE CARSCALLEN, Executive Director, Commercial Fishermen
for Bristol Bay, said she is a lifelong Bristol Bay resident and
commercial fisherman. She expressed opposition to HB 138.
Commercial Fishermen for Bristol Bay is a national coalition of
fishermen working to protect 14,000 jobs and $1.5 billion in
annual economic activity provided by Bristol Bay salmon.
Alaska's fisheries management systems in Bristol Bay and Alaska
are examples that prove large sustainable fisheries can operate
with public participation and science-based decisions.
Outstanding national resource water designations are critical to
protect essential waterways. Ms. Carscallen said the committee
can create a strong science-based process incorporating sound
management and protection of Alaska's renewable resources;
however, HB 138 creates a political process without science and
public participation. She recalled Bristol Bay residents
submitted an application ten years ago to designate portions of
the Koktuli River as Tier 3 waters; since then, the state and
proponents of the Pebble Mine stated [nominators of Koktuli
River] should trust the state and federal processes to protect
waters. At this time, [nominators] "face a fast track federal
permitting process"; HB 138 seems to be a success for Pebble's
lobbying efforts to erode the existing process. She said
determining waters of ecological significance in Alaska should
not be a policy decision; DEC and ADFG are the most qualified
agencies to do so and the process should be open and public.
She urged the committee to not rush to decision and ensure
Alaska remains a leader in sustainable resource management.
1:21:18 PM
KATIE DAWSON expressed her opposition to HB 138 which is a
tactic to push through the Pebble Mine project despite
overwhelming evidence of the damage the mine would cause Bristol
Bay. She said the bill is a bureaucratic maneuver that doesn't
change the following facts: the Pebble Mine is a disaster for
Alaska because it will pollute Bristol Bay and environs; Pebble
Mine is an unrecoverable and unfixable ecological disaster; it
will destroy the salmon fishery in Bristol Bay and its
ecosystem; it will destroy a viable economy based on tourism,
fishing, and bear viewing; it will destroy salmon streams,
ecosystems, and fishermen; it will destroy bears who fish
together on the McNeil River. Ms. Dawson cautioned against
dredging a harbor that experiences stormy weather and other
dangerous mining activities that would eventually lead to the
death of wildlife, only to gain short-term profits for a few.
She restated her opposition to HB 138.
1:24:46 PM
MELISSA ARONSON expressed her opposition to HB 138. She said HB
138 proposes a political decision instead of a decision that
should be based on solid science and looking to a sustainable
future that provides for a clean environment, social justice,
Native and subsistence users, and salmon. The decision should
also consider long-term economic wellbeing provided by
industries such as the salmon fisheries; mining would be a short
term disaster and Alaska's clean waters need to be protected
from political influence.
REPRESENTATIVE RASMUSSEN pointed out an advisory commission
would consist of the commissioners of the Department of Natural
Resources, DEC, and ADFG, all of whom have science-backed teams
to help make decisions; in fact, the current process with
legislative approval was set by DEC and lacks science-based
decision-making. She said adding the commission would
strengthen science-based decisions.
1:27:46 PM
KATI CAPOZZI, president and CEO, Alaska Chamber of Commerce,
said Alaska Chamber is an organization dedicated to improving
the business climate in Alaska and represents hundreds of
businesses that share a common goal to make Alaska a viable and
competitive place to do business. She expressed support for HB
138, Version K, and said water designated outstanding national
resource water could negatively impact responsible resource and
industrial development in Alaska. According to DEC,
approximately 175 million acres of land in Alaska are considered
wetlands - which is over 43 percent of the total state acreage -
and more than 50 percent of Alaska is occupied by water. There
is a critical need to manage Alaska's water resources for
responsible use and development for the present and future of
the state's economy. Further, without a legislative designation
and water management statute, Tier 3 designation could prohibit
responsible and regulated development that could create new
jobs, increase national security, and strengthen global
competitiveness. Specifically, [Tier 3 status] could impact the
waterbody's users such as motorized vessels, residential and
commercial septic systems, stormwater permits, seafood
processors, timber harvesting, and others. She directed
attention to her previously submitted written testimony dated
4/28/19. The Alaska Chamber seeks a fair and balanced approach
in this regard and fully supports HB 138 and that only the
legislature is authorized to make a Tier 3 water designation.
1:30:27 PM
MARLEANNA HALL, executive director, Resource Development Council
for Alaska (RDC), informed the committee RDC is a statewide
trade association comprised of individuals and companies from
fishing, forestry, mining, oil and gas, and tourism industries,
and including twelve Alaska Native corporations. She said RDC
is concerned that Tier 3 water nominations have been viewed by
entities opposed to development as obstruction opportunities;
without a proper designation process, unnecessary nominations
will be made to target projects and will cause unnecessary
expense in response to questionable and unwarranted nominations
and resulting litigation. Unnecessary Tier 3 designations would
replace existing water quality protections with total
prohibition of new or expanded discharges, severely limiting
activities; however, HB 138 would help protect land and access
for communities, Alaska Native corporations, and rural
development. Ms. Hall said HB 138 would put into law a proper
mechanism, for nomination and designation, and would require
proper vetting of all nominations; only the legislature should
have the authority to designate Tier 3, consistent with the
Alaska State Constitution, and she urged the committee to report
HB 138, Version K, from committee.
1:33:02 PM
GERSHON COHEN PhD, project director, Alaska Clean Water
Advocacy, said Alaska Clean Water Advocacy has been working for
28 years to keep Alaska's water clean and productive. He
expressed his opposition to HB 138 and directed attention to his
written comments that have been provided to the committee. Dr.
Cohen, in response to Representative Rasmussen, said the
proposed [advisory commission] supports a science-based
decision; however, because the legislature has veto power over
the commission's decision and that of DEC, the bill "makes this
once again a completely political decision." Further, he said
Tier 3 protection does not prohibit septic systems or running
boats and offered to correct misinformation in this regard.
Finally, he explained most states utilize a process that uses
DEC or an equivalent agency, with or without an advisory
committee, to make Tier 3 decisions .... [Due to technical
difficulties, further testimony was lost. Additional testimony
by Dr. Cohen was heard later in the meeting.]
1:35:33 PM
SHANNON DONAHUE said she lives at the mouth of the Chilkat
River, which is a waterbody that has been nominated for Tier 3
status. She disclosed she works for the Southeast Alaska
Conservation Council and the Great Bear Foundation and is
representing herself. Ms. Donahue expressed her opposition to
HB 138, because it implements an onerous political process for
the evaluation and designation of Tier 3 water nominations, and
strips Alaskans of their right to protect important waters. She
referred to a media report about the number of toxic releases in
Alaska in 2018 and said it should not be easier to pollute
waters than to protect them. She questioned the sponsor's
statement, saying that instead HB 138 creates a political
process to designate Tier 3 water nominations through the
legislature, replacing the existing DEC process. Ms. Donahue
observed there is significant opposition to HB 138, because Tier
3 nominations should be a fair and transparent process, and it
is the only process available to Alaskans to protect valued
waters. She stressed the designation protects all existing uses
and short-term degradation of water, such as outboard motors,
private septic systems, and fish cleaning, and only denies
permits for long-term permanent degradation and thus protects
normal use of the waterbody by Alaskans. An advisory commission
would add a layer of politics to the evaluation process, and she
opined residents with differing opinions on Tier 3 status for
the Chilkat River all favor an apolitical administrative process
by DEC to determine the ecological, cultural, and recreational
value of a waterbody; she asked the committee to provide
additional hearings for public testimony on HB 138, and to
oppose the bill.
REPRESENTATIVE RASMUSSEN asked if Ms. Donahue was aware the
current process through DEC was implemented by the previous
administration and requires legislative approval.
MS. DONAHUE offered to review her documents.
1:39:25 PM
DEANTHA CROCKETT, executive director, Alaska Miners Association
(AMA), informed the committee AMA is a trade association that
represents all aspects of the mining industry. She expressed
AMA's support of HB 138 in its original version that contains
two key provisions: the Tier 3 designation process is to be in
statute and by a vote of the legislature; requires that a
waterbody that has been nominated for Tier 3 designation may not
be managed as a Tier 3 waterbody until so designated by the
legislature. Further, AMA believes HB 138 allows for individual
participation because any individual could request a legislator
to propose a bill to nominate Tier 3 water. Speaking from her
experience, she pointed out legislative committees that hear
proposed environmental legislation routinely request testimony
from relevant resource agencies to debate the merits of a
proposed bill, as would be the case related to a Tier 3 water
nomination. Ms. Crockett said a coalition of local governments,
Alaska Native corporations, and members of the oil and gas and
mining industries are worried about the economic implications
placed on a waterbody that has been designated Tier 3. She
directed attention to the proposed committee substitute to HB
138, [Version K], beginning on page 2, line 29, and continuing
through page 3 line 9 which read:
(A) the name, description, and location of the water;
(B) the boundaries upstream and downstream of the
water;
(C) an explanation of what makes the water an
outstanding national resource water, including a
description of the recreational or ecological value
that makes the water exceptional;
(D) a description of the existing water quality and
any technical data on which the description is based;
(E) a discussion of any nonpoint source activity to
be conducted in the foreseeable future that may affect
water quality;
(F) an analysis of the economic cost and benefit of
designating the water as outstanding national resource
water, including the economic cost and benefit to
communities and current or foreseeable project; and
MS. CROCKETT said AMA finds value in the criteria required to be
considered a complete nomination and in particular [subparagraph
(F)] that requires an economic analysis. She remarked:
... a Tier 3 water designation has really become a
tool for antidevelopment groups to use and you can see
that in some of the existing nominations. There's
five nominations currently, none of which have been
designated and of three of those, two of those
literally specify the threat of either large scale
development or a family-run placer mine in the Brooks
Range as a threat to the water. They don't take into
consideration existing water quality protections and
they don't take into consideration the other water
quality dischargers.
MS. CROCKETT advised the aforementioned issues are already
regulated through existing statutes thus additional Tier 3 water
designations need to be in the hands of the legislature as is
consistent with the Alaska State Constitution. She said AMA
will further evaluate the committee substitute and expressed
support for HB 138.
1:42:35 PM
REPRESENTATIVE HANNAN asked for clarification of the difference
between point source permitting and nonpoint source permitting.
MS. CROCKETT offered to provide a written explanation.
REPRESENTATIVE HANNAN further questioned whether any of the five
major mines operating in Alaska currently have nonpoint source
activity permits or if all their permitting regulations are
under point source. She remarked:
It is an element of the bill that we haven't delved
into too much, but one of the things, as I read more,
all of our minds are [on mines that are] ... regulated
mostly in discharge by point source, meaning the mine
is letting this water source go, as opposed to
nonpoint source - there's a[n] outboard running on the
river - and to some degree we're distracted by the
idea of talking about outboards being the issue, but
the vast majority of people who nominate rivers, what
they're talking about is, concern over point source
discharges. ... The five operating mines have
probably the largest plethora of permits, [and are]
familiar with that process.
MS. CROCKETT said she would provide a document that describes
the mining industry and community wastewater treatment systems.
CO-CHAIR TARR inquired as to whether Ms. Crockett was familiar
with Tier 3 processes in other states and the reaction of mining
associations in other states.
MS. CROCKETT advised there is a wide range of processes in other
states and state constitutions differ; she pointed out Alaska's
constitution requires that certain decisions must be before the
legislature. She offered to provide written information on the
policies of other states.
CO-CHAIR TARR expressed interest information about Minnesota's
Tier 3 designations that are located in mining districts.
MS. CROCKETT said she would provide the requested information.
1:46:56 PM
DR. COHEN said in most states an agency similar to DEC makes
Tier 3 decisions, some states have a water quality board or a
commission that does so, and a minority of states require
legislative approval. He pointed out Alaska Statutes Title 46
grants DEC the authority to set water quality standards and the
U.S. Environmental Protection Agency (EPA) recognizes that the
agency that sets water quality standards can be responsible for
antidegradation protections; therefore, nothing indicates DEC is
not capable of making a Tier 3 designation.
CO-CHAIR TARR surmised some consider Tier 1 and Tier 2
designations as designations that allow permittable activities,
and that Tier 3 designations are equated with those of a refuge
or a very restrictive status. She expressed her understanding
Tier 3 restrictions do not apply to short-term activities, but
that water quality cannot be reduced over a long term. She
noted when waters are designated as a refuge, the designation is
through legislation.
DR. COHEN explained Tier 1 waters are waters that have a problem
meeting some water quality standards, such as waters that need
improvement; Tier 2 waters are defined as waters that meet or
exceed all water quality standards and thus permits may be
issued to lower water quality to a certain standard. Tier 3
waters are waters where expanding or new point source discharges
are not allowed. He remarked:
I don't know where folks are getting this idea about
the septic systems and the motor and the boats because
if you are not having to get a point source discharge
permit, there will be no Tier 3 evaluation of your
activity. So, it's really not so much about what they
allow or what they don't allow as a group - Tier 1,
Tier 2, Tier 3 - it's really just three definitions
of, of, it's three ways of describing the waters of
the state, and the federal government requires Alaska
to, to a look at all of its waters and decide whether
or not they are Tier 1, Tier 2, or if they should be
considered Tier 3 water. ... And you mentioned, that
the issue of temporary versus long-term ... even in
Tier 3 waters Army Corps of Engineers can authorize
activities in those waters that would create
sedimentation for some period of time, you know, if
you had to build a bridge or you had to repair a
culvert ... that would be allowable in a Tier 3 water.
What the Tier 3 waters do not allow is that you can
have an expanded or a new discharge of pollutants into
that public water because the goal is to maintain the
quality of the water where it is now. In fact, there
are also, there are waters around the country that are
considered impaired waters, they're listed under
[section 303(d)] of the Clean Water Act, as impaired
waterbodies, and yet they are Tier 3 waters, because
they're considered to be of some great importance in
some way or another that their water quality should be
maintained where it is, and that's what Tier 3 would
do, it would maintain water quality where it is today.
1:53:53 PM
ROBERT VENEBLES, executive director, Southeast Conference, said
Southeast Conference is the regional development organization
for Southeast Alaska; its mission is to support and promote
activities for healthy communities, strong economies, and a
quality environment. Mr. Venebles said Southeast Conference
members are concerned about the aforementioned issue and urged
the committee to focus on creating a process that meets federal
requirements. He noted in February 2018, Southeast Conference
passed a resolution in support of a process in which the
executive branch performs scientific research and the
legislature authorizes the final Tier 3 designation. He said
Version K would ensure voices are heard and would meet federal
mandates.
REPRESENTATIVE RASMUSSEN asked whether Southeast Conference is
in support of the bill.
MR. VENEBLES said the bill is consistent with the aforementioned
resolution passed by the Southeast Conference board.
CO-CHAIR TARR asked how smaller communities in Southeast
understand the impact of the allowable activities on Tier 3
water.
MR. VENABLES acknowledged Southeast Conference has members on
both sides of the issue, which explains why it is in support of
the process established by the bill. Waters in Southeast are
pristine, and the membership of Southeast Conference is
comfortable with the legislature providing a process.
1:58:27 PM
JAN CONITZ said she has been a fisheries biologist for 20 years
and worked in marine biology and as a commercial fisherman. She
opined the problem with the bill is it is intended to provide a
better process for the public nomination of outstanding national
resource waters (ONRW); however, the bill creates unnecessary
and unreasonable burdens to public nominators. She inquired as
to why there are several ONRW nominations in the state, but none
have been designated. Ms. Conitz pointed out Alaska has special
waters that deserve some form of protection. She said the
nomination process contrasts with the simple administrative
process in place to apply for a permit to discharge pollutants
into waterways; it should not be easier to discharge pollutants
than to protect waterways from discharges. Further, once water
is impaired at a significant level, the waterbody will not
function in its natural state; in fact, restoration is rarely
possible. She urged the committee to consider the value of
water that provides living resources such as salmon.
REPRESENTATIVE RASMUSSEN asked the bill sponsor for
clarification as to whether any member of the public could bring
forth a nomination through a bill before the legislature and
avoid the cost factor [of a submission through the commission].
2:02:00 PM
REPRESENTATIVE CHUCK KOPP, speaking as the sponsor of the bill,
said correct, any member [of the public] may pursue the
nomination of a Tier 3 water directly through the legislature.
2:02:34 PM
ERIC HOLLE expressed his opposition to [HB 138, Version K], and
his support for keeping the Tier 3 process with DEC. He
described his personal history of living near the Cuyahoga River
in Cleveland, Ohio, that burst into flames because it was
polluted with inflammable products, and chlorinated
hydrocarbons, that are harmful to humans. Later, living in
Colorado, he found miles of streams and rivers were biologically
dead from acid mine drainage, molybdenum pollution, and
naturally occurring radon. Three decades ago, he came to Alaska
to find the state was lowering water quality standards to allow
mixing zones for mines. [Lower Slate Lake located in the
Tongass National Forest] is now a dumping ground for toxins and
the proposed mines all across the state threaten history to
repeat itself. Mr. Holle asked the committee to keep the Tier 3
process - as much as possible - under the control of citizens
and stop [HB 138] from advancing.
2:05:17 PM
LAURA FLEMING said the bill is well-intentioned but offers a
solution to a problem that does not exist. According to the
sponsor statement, the EPA mandates the state designate ONRWs;
however, 40 years ago EPA offered formal guidance on ONRW
designations, and along with federal regulations, EPA guidelines
recommend each state include a listing of ONRWs in its water
quality standards, and that certain types of waters should be
considered and that each state should provide notice of possible
ONRW designations in water quality standards. Ms. Fleming
opined ONRWs are not mentioned in the Clean Water Act; further,
in 1979, legal opinion said EPA cannot demand or create state
ONRWs through a federal process. As of 1983, neither revised
water quality standards, rulemaking, nor preamble, stated that
states have a mandatory duty to designate eligible waters as
ONRWs or that EPA will do so. Ms. Fleming concluded in 1997,
when Alaska gained primacy in water quality, the state assumed
responsibilities it has not fulfilled, such as the process for
designating Tier 3 waters. She related, in 2018, the DEC
commissioner stated there is no process for designating Tier 3
waters and EPA has requested the state to develop a process, but
EPA's expectation is that Alaska needs to identify
implementation procedures for antidegradation and mixing zone
policy; however, nowhere has EPA said the state needs to
designate ONWRs. She said the state has responsibilities and
rights related to Alaska waters; DEC, DNR, and ADFG need the
resources to complete a publicly supported and transparent
effort to establish criteria procedures and a process for
implementing Alaska's antidegradation policy as required by the
Clean Water Act, and no new legislation is needed.
2:09:53 PM
RICHARD FARNELL expressed his opposition to HB 138. He said
there is a need to keep the Tier 3 water designation process
free from politics, however, HB 138 would create a very
politicized process for Tier 3 designation. He stressed the
process to nominate important waterbodies should be available to
the public, unimpeded by politics. Keeping the process a
science-based process would provide the objectivity that is
needed.
2:10:54 PM
NANCY MORRIS LYON, owner and operator, Bear Trail Lodge, said
she was not in favor of HB 138, which turns maintaining the
health of water into a political event that can sway opinion;
protection of waters should never be controlled by the whims of
political administrators, but should be left to sound science
and consideration of the wisdom of individuals who depend upon
the waters. She expressed her opposition to the bill and said
she would prefer to see the process within DEC through a process
that would include sound science, local knowledge, and other
factors, which would be a more reliable and defendable process
to protect waters. In addition, the process should use
standards that can be evaluated and measured; although science-
based entities would be placed on the [commission], Ms. Morris
Lyon said it is dangerous for the final decision to be left in
the hands of the current political party, whichever party that
may be. She noted the utmost importance of the health of water
to the state.
2:13:07 PM
JONATHAN WOOD said he has lived in Alaska for 12 years and noted
his time spent on many rivers in Southeast Alaska, and in
British Columbia and Yukon, Canada. He said the Chilkat River,
which has been nominated for Tier 3 status, has significant
cultural value to the Chilkat Tlingit and the village of
Klukwan. Mr. Wood said he is strongly opposed to HB 138,
Version K, and feels that DEC should be the primary authority to
determine and designate Tier 3 waters; taking authority from DEC
equates with taking from Alaskans the ability to participate in
the process, and would leave communities faced with an
insurmountable gauntlet of obstacles to protecting vital
watersheds. Mr. Wood opined designating a Tier 3 waterway
should be a science-based administrative process and not a
political process conducted by a committee appointed by the
governor without legislative oversight. He pointed out a
nomination recommended by the committee still needs legislation
passed by legislature and could be vetoed by the governor. Mr.
Wood said an outside corporation can file a six-page form in
order to discharge waste into a shared waterway; the process to
protect shared waterways should be similar. He characterized
the process as undemocratic, un-Alaskan, and virtually
impossible; Alaskans deserve the right to protect waterways of
economic, cultural, and environmental significance, and he said
he strongly opposed HB 138.
REPRESENTATIVE RASMUSSEN asked whether Mr. Wood was opposed to
legislative oversight or the [commission] that would be created
by HB 138. She pointed out DEC regulations that delegate
legislative approval were in effect during the prior
administration, which was represented by a governor from a
different political party than the current administration.
MR. WOOD restated the process should be an administrative
process not solely in the hands of the legislature, regardless
of the prevailing political party; further, the commission
places too many hurdles to the designation of Tier 3 water.
Because none of the current nominees have been successful, there
must already be significant hurdles in place.
REPRESENTATIVE RASMUSSEN concluded Mr. Wood was opposed to the
existing process, through DEC, which gives the legislature final
approval.
MR. WOOD said an administrative process in combination with a
legislative process makes more sense than a solely political
process.
2:18:38 PM
FREDERICK OLSEN JR said he is a lifelong Alaskan living in
Sitka. He said a natural resource extraction state is another
term for a colony and Alaska acts like a colony in many ways,
especially related to its environment: some outsiders profit
and residents are left with their messes. Polluters fear
environmental protections, such as Tier 3 designations, and seek
to evade or prevent restrictions on their operations; Alaska has
no Tier 3 water designations, however, Tier 3 designations are
needed. Nominations include the Chilkat River, which has been
recognized in the top ten of America's most endangered rivers.
Governments need to look out for residents' health, and not
promote rich individuals or companies at the people's expense,
and to protect clean water. He observed the bill plays into the
hands of industry and is an example of state overreach. Mr.
Olsen asked whether Alaska wants to be the last frontier or
another tailings storage facility.
2:20:50 PM
JOHN SONIN said he represents civilized humanity and said
nothing is more equalizing in a democracy than water. An
attempt to represent the will of the people through a board of
commissioners with a political agenda is destructive to the
purpose in life, which is to produce. He characterized water as
the equalizer because everything needs water. A representative
democracy is a way to express multiple and varied opinions
through a republic form of government. Mr. Sonin pointed out
the republic form of government is now political; for example,
an administration-appointed commission makes the commission
political, which is undemocratic, however, the process of a
republic is to reflect the personal opinion of its constituents.
REPRESENTATIVE RASMUSSEN asked Mr. Sonin whether his opposition
to the bill is to the commission or the legislative approval
process.
MR. SONIN said his opposition is to the addition of a
commission; the legislative approval process is closer to
representing the democratic will of [constituents].
2:26:48 PM
LINDSEY BLOOM, policy director, Salmon State, informed the
committee Salmon State is an Alaska initiative working to defend
salmon habitat and to promote policies that guarantee Alaska
will remain a salmon state and home to a healthy and abundant
salmon resource which provides culture, food, income,
employment, and recreation to all. Salmon State is opposed to
[HB 138, Version K] as written because the addition of a
commission makes the process less balanced or fair. She noted
as a previous member of the board of the Alaska Independent
Fishermen's Marketing Association, she was part of a group that
nominated the Koktuli River, and so has followed the nomination
process under several administrations. Ms. Bloom pointed out
the issue is not an extreme prohibition on [access to] water; as
defined in the Clean Water Act, a Tier 3 water designation would
maintain the long-term quality of a waterbody and does not
prohibit any activities. She opined this does not differ than
authorizing a permit for a mixing zone; therefore, if [the
state] issues a permit to discharge and degrade the water
quality in waterbodies, the standard should be equal to the
process to protect water quality, which is what her organization
seeks. She recalled it was many years before the nominators of
the Koktuli River were notified by DEC that the nomination was
denied because Alaska does not have a process to make the Tier 3
determination; further, DEC has no regulations that address the
process, only guidance documents. In fact, Salmon State
believes legislation is not needed; all that is needed are DEC
regulations to clarify the standards of Tier 3 waters and the
criteria for a Tier 3 designation. Ms. Bloom concluded [Version
K] adds bureaucracy and red tape to the process and creates
additional hurdles to nominators. She offered to submit
additional written testimony.
REPRESENTATIVE RAUSCHER surmised Ms. Bloom is in support of
neither the current process nor the bill.
MS. BLOOM said correct; she added there is no current process
and for the last 15 years the issue has been passed between DEC,
the administration, and the legislature. Speaking from her
experience, she said the current guidance from DEC is, "Until
there's a process you can go to the legislature ...."
2:33:40 PM
REPRESENTATIVE TALERICO asked what is meant by long-term [when
related to water degradation].
MS. BLOOM said the term is defined in the Clean Water Act, which
she would provide; as related to the Bristol Bay fishery, she
said state permits for the proposed mining project at the
headwaters of Bristol Bay would allow for contamination of water
in perpetuity, which to her means for generations to come.
REPRESENTATIVE RASMUSSEN opined the state makes lengthy and fair
decisions related to resource development; she has heard
testimony that the permitting process for proposed mines can
cover decades. She said she understands the frustration of
those waiting for a Tier 3 water designation and also the
frustration with the mining permitting process.
MS. BLOOM stated Alaska has issued hundreds, if not thousands,
of authorizations and permits for discharges in mixing zones but
has never issued a Tier 3 protection of a waterbody.
2:36:57 PM
MAKO HAGGERTY expressed his opposition to HB 138 and his
agreement with previous opposing testimony. He said he is an
enthusiastic fisherman who drinks water and HB 138 does not
serve the citizens of Alaska.
2:38:06 PM
BRONK JORGENSEN, chairman, Alaska Minerals Commission (AMC), and
trustee, Fortymile Mining District, said he is lifelong Alaskan
living in Tok. Speaking as chairman of AMC, he said the role of
AMC is to recommend strategies to the governor and legislature
to mitigate constraints on mineral development in Alaska. In
its 2020 report to the legislature, AMC noted governance of Tier
3 water is one of its top priorities and it supports the bill
and urges the committee to work with industry and other parties
to assure that designation of Tier 3 waters resides with the
legislature. Speaking as trustee for the Fortymile Mining
District, and as a family placer miner, he said having a river
designated as a Tier 3 water would shut down his family placer
mine and others. The designation of Tier 3 waters must be well-
vetted to not unduly harm family placer miners and other users.
Mr. Jorgensen cautioned he has been harmed by minor federal
designations, which have had a dramatic effect on family placer
miners and small business operators. The mining district has
some concerns about the proposed advisory committee, however,
ultimately the decision to designate Tier 3 water should reside
with the legislature. He stated this is a democratic process.
In response to Co-Chair Tarr, he said the 2020 AMC report was
finished and offered to provide copies to the committee.
2:42:12 PM
HEATHER EVOY began her testimony in her Native language. She
said she is Tsimshian from the Eagle Clan and was born and
raised in Ketchikan. Ms. Evoy expressed her opposition to HB
138, stating her agreement with testimony by Ms. Bloom in that
it should not be more onerous to protect Alaska waters than to
pollute them. She characterized the [HB 138] process as
politicized and - speaking as an indigenous person - said she
does not support sacrificing water to a political process; in
fact, the definition of equity is freedom from bias or
favoritism and she pointed out all of the current five
nominations are from tribal bodies. Ms. Evoy suggested the lack
of DEC's progress to designate the aforementioned nominations is
a denial of tribal sovereignty. Noting there has been support
for the bill from Native corporations, she said corporations
have a fiduciary responsibility to maximize their shareholders'
benefits. She restated her opposition to the bill and urged for
public participation in the process.
REPRESENTATIVE RASMUSSEN asked if Ms. Evoy supports legislative
approval of Tier 3 water designation.
MS. EVOY said she did not due to the influence of industry.
REPRESENTATIVE RASMUSSEN asked Ms. Evoy to suggest how to
incorporate public participation in the designation process.
MS. EVOY opined DEC could implement a process and not ignore
nominations for another decade.
2:47:33 PM
MARK NIVER, spokesperson, Commercial Fishermen for Bristol Bay,
said he is a 42-year Alaska resident, retired from BP, and a 40-
year commercial fisherman in Bristol Bay. He said he represents
1,400 fishermen in Bristol Bay and expressed their opposition to
HB 138. Mr. Niver surmised the nomination of the Koktuli River
system for Tier 3 designation has waited eight years because of
its proximity to the Pebble Mine prospect. He questioned the
trustworthiness of Alaska's political system and pointed out the
commissioner of DEC was confirmed by the legislature, although a
large majority of public testimony opposed his nomination, and
then related a prior conversation with U.S. Congressman Don
Young of Alaska. Mr. Niver said, "Alaska has the best
government that money can buy." He opined [Article 8, section 2
of the Alaska State Constitution] does not give big business
permission to "tear up the countryside." He said Commercial
Fishermen of Bristol Bay want to take care of Alaska's waterways
for future generations.
REPRESENTATIVE RASMUSSEN asked what process for Tier 3 water
designation Mr. Niver would support.
MR. NIVER suggested legislation should be proposed that grants
more authority so only DEC would make the decision. He noted
the commissioner of DEC is a miner, and members of the public
could contract their legislators directly without using a
committee and without influence.
REPRESENTATIVE RASMUSSEN has heard extensive public comment that
"the power should lie within DEC and I've heard your ...
distaste towards [DEC] Commissioner Brune." She pointed out the
administration appoints commissioners and their confirmations by
the legislature are a political process; further, a decision by
one person does not provide as much participation by Alaskans as
a body with representation from different regions of the state.
She questioned how DEC having the ultimate authority to
designate is a less political process than legislative approval.
MR. NIVER said nominations would be mired by a committee and
business interests could coerce votes. He gave an example of
business influence on U.S. Senator Lisa Murkowski of Alaska.
REPRESENTATIVE RASMUSSEN observed Commissioner Brune received
overwhelming support from her constituents; she said she and her
colleagues make their decisions based upon public comments heard
in committees and on opinions voiced by the constituents in
their districts.
REPRESENTATIVE RAUSCHER stated the problem may be systemic and
not the fault of one person.
2:55:07 PM
CO-CHAIR TARR, after ascertaining no one further wished to
testify, closed public testimony on HB 138.
REPRESENTATIVE KOPP acknowledged the bill addresses a very
important and longstanding problem. He briefly gave his
personal background as a commercial fisherman in Bristol Bay and
growing up at Lake Iliamna. With respect to administrative
agencies and fishing, he cautioned the National Oceanic and
Atmospheric Administration, U.S. Department of Commerce, seeks
to establish fish farms in Alaska waters; however, the elected
representatives of the state legislature and the Alaska
congressional delegation have successfully prevented this.
There has been testimony supporting a depoliticization of the
process, and more open and transparent citizen involvement, and
he opined DEC commissioners do not support [the current] process
because the DEC process is very limited in this regard and is
not as open and transparent with public accountability as is
practiced by the legislature. Therefore, DEC decisions would
always be litigated. He said the advisory commission created by
HB 138 is not litigable and every existing nomination would
finally have a pathway to review and decision. Representative
Kopp urged for decisions informed by Alaskans and their elected
representatives.
REPRESENTATIVE RAUSCHER asked for a description of the current
process.
REPRESENTATIVE KOPP explained the commissioner [of DEC] returns
nominations to the nominator with direction to take the
nomination to the legislature; however, the commissioner could
deny the nominations and the bill would make the process more
predictable.
[HB 138 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 138 Supporting Document - Tier 3 Nominations.pdf |
HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB 138 Sponsor Statement 2.4.2020.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM HRES 3/13/2020 1:00:00 PM |
HB 138 |
| HB 138 Draft CS v. K.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM HRES 3/13/2020 1:00:00 PM |
HB 138 |
| HB 138 Sectional Analysis v. K 2.4.2020.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM HRES 3/13/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Legal Opinion re DEC Statutory Authority to Designate Tier 3 Waters 5.2.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Legal Opinion re HB 138 and Ballot Initiatives 5.1.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC Summary of Tier 3 Designations 3.2019.pdf |
HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC Letter re Review of Tier 3 in Other States 5.3.19.pdf |
HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DNR Fact Sheet Legislatively Designated Areas 4.22.2019.pdf |
HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Final Tier 3 Guidance 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 18 AAC 70.016 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material Commissioner Hartig Letter to Senate 4.22.2019.PDF |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Tier 3 response 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Material DEC Tier 3 Water Designation FAQ 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM HRES 3/11/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Chilkat Indian Village Letter of Opposition 4.26.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Cook Inletkeeper Letter of Opposition 4.26.19.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Letters of Opposition 4.29.19.pdf |
HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Coalition Letter of Support 4.28.19.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Suppporting Document - Doyon Letter of Support 4.26.19.pdf |
HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC P&P re Tier 3 Nomination 11.21.18.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 version A 4.22.2019.pdf |
HRES 4/29/2019 1:00:00 PM HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - DEC attachment sent to EPA 3.6.2018.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 3/9/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - AML Presentation Tier 3 Designation Impact 05.03.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - EPA to DEC Email 11.23.18.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM HRES 2/24/2020 1:00:00 PM |
HB 138 |
| HB138 Opposing Document - Letter in Opposition to House Resources Committee from SEACC - 5.1.19 (002).pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Supporting Document - Conitz Letter of Opposition 05.02.19.pdf |
HRES 5/3/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Additional Letters of Opposition.pdf |
HRES 4/29/2019 1:00:00 PM HRES 2/10/2020 1:00:00 PM HRES 2/14/2020 1:00:00 PM HRES 2/17/2020 1:00:00 PM |
HB 138 |
| HB138 Letter of Opposition - Alaska Clean Water Advocacy 2.12.20.pdf |
HRES 2/14/2020 1:00:00 PM |
|
| HB 138 Testimony - As of 2.13.20.pdf |
HRES 2/14/2020 1:00:00 PM |