03/09/2020 01:00 PM House RESOURCES

           HB 138-NATIONAL RESOURCE WATER DESIGNATION                                                                       
                                                                                                                                
2:11:17 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  TARR announced  the final  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.]                                                                                                                    
                                                                                                                                
CO-CHAIR  TARR  reviewed  the   committee's  previous  action  on                                                               
Version K, and forthcoming amendments.                                                                                          
                                                                                                                                
2:13:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HANNAN moved to adopt  [Amendment 6, K.13, labeled                                                               
31-LS0811\K.13, Marx, 2/20/20, identified  on the audio recording                                                               
as Amendment 5] which read [original punctuation provided]:                                                                     
                                                                                                                                
     Page 3, line 4, following "based;":                                                                                        
          Insert "and"                                                                                                          
                                                                                                                                
     Page 3, lines 7 - 10:                                                                                                      
          Delete all material.                                                                                                  
                                                                                                                                
CO-CHAIR TARR objected for discussion purposes.                                                                                 
                                                                                                                                
REPRESENTATIVE  HANNAN  explained  [Amendment  6,  K.13]  removes                                                               
language in Version K on page 3, lines 7-10, which read:                                                                        
                                                                                                                                
          (F) an  analysis of the economic  cost and benefit                                                                    
     of  designating  the   water  as  outstanding  national                                                                    
     resources  water,  including   the  economic  cost  and                                                                    
     benefit  to  communities  and  current  or  foreseeable                                                                    
     projects; and                                                                                                              
       (G) other information required by the commission;                                                                        
                                                                                                                                
REPRESENTATIVE  HANNAN  said  the   amendment  would  remove  the                                                               
language  that  requires  a   person  nominating  an  outstanding                                                               
national  resource  water  (ONRW)   to  include  a  cost  benefit                                                               
analysis of  the designation, and  other information  required by                                                               
the commission.   She advised  a cost benefit analysis  is likely                                                               
to be  costly and burdensome for  nominators and it is  best left                                                               
to the  commission, or  an affiliated state  agency, to  obtain a                                                               
thorough cost  benefit analysis.   In  addition, the  request for                                                               
other information is too broad.                                                                                                 
                                                                                                                                
REPRESENTATIVE RASMUSSEN cautioned  the responsibility to provide                                                               
a cost  benefit analysis  would be an  additional burden  for the                                                               
state; she expressed opposition to the amendment.                                                                               
                                                                                                                                
2:15:02 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 2:15 p.m. to 2:16 p.m.                                                                       
                                                                                                                                
CO-CHAIR  TARR pointed  out  similar issues  are  addressed in  a                                                               
forthcoming amendment labeled, 31-LS0811\K.18, Marx, 2/20/20.                                                                   
                                                                                                                                
2:16:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHUCK KOPP, Alaska  State Legislature, speaking as                                                               
the  sponsor of  HB 138,  said the  amendment would  restrain the                                                               
commission from  asking for more  information beyond  the minimum                                                               
criteria  in the  bill.   He  noted the  drafters  kept the  bill                                                               
simple and straight forward; however,  the commission is balanced                                                               
and  should   not  be   restrained  from   requesting  additional                                                               
information or criteria,  if necessary, to reach a  decision.  In                                                               
addition, a  cost benefit analysis affects  future development in                                                               
the affected community,  such as new roads  and subdivisions, and                                                               
the discussion of these factors  in a cost benefit analysis shows                                                               
the nominator is  aware of economic and growth  activities in the                                                               
affected  area around  the nominated  waterbody.   Representative                                                               
Kopp surmised these are questions  the commission would raise and                                                               
providing a  cost benefit analysis  is not  a high hurdle,  but a                                                               
reasonable hurdle.                                                                                                              
                                                                                                                                
CO-CHAIR TARR  noted certain forthcoming amendments  were drafted                                                               
after discussion with the bill  sponsor that changed the language                                                               
from  explanation,  description,  discussion,  and  analysis,  to                                                               
"general  description,"  which  a  member  of  the  public  could                                                               
provide without professional assistance.                                                                                        
                                                                                                                                
2:21:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HANNAN  said  placing  a  cost  analysis  in  the                                                               
criteria of ability  to nominate places a burden  on small, rural                                                               
communities  and  entities  that   may  not  have  the  technical                                                               
expertise to  provide a cost  analysis.  She acknowledged  a cost                                                               
benefit  analysis  would  be  an   element  of  the  commission's                                                               
decision  process; however,  it  should not  be  included in  the                                                               
criteria that is required to forward a nomination.                                                                              
                                                                                                                                
REPRESENTATIVE TUCK  read from  a document  identified as  18 AAC                                                               
70.017  [document  not  provided],   which  he  characterized  as                                                               
parallel  to the  language in  the  bill, with  the exception  of                                                               
subparagraph (F)[text previously provided].   He said the goal is                                                               
to facilitate ONRW water designations -  not to hinder them - and                                                               
expressed his support for [Amendment 6, K.13].                                                                                  
                                                                                                                                
2:25:04 PM                                                                                                                    
                                                                                                                                
TREVER FULTON,  Staff, on behalf of  Representative Kopp, sponsor                                                               
of HB 138,  suggested the document referred  to by Representative                                                               
Tuck  contains  either  regulations  that have  been  adopted  to                                                               
address discharges  into a  body of water  that has  already been                                                               
designated a Tier 3 water,  or is a draft implementation document                                                               
that  has  been   rescinded  by  the  2018   publication  of  the                                                               
Department   of   Environmental   Conservation   (DEC)   guidance                                                               
memorandum deferring the designation process to the legislature.                                                                
                                                                                                                                
REPRESENTATIVE TUCK  questioned whether  a cost  benefit analysis                                                               
should be a relevant factor in the designation of Tier 3 water.                                                                 
                                                                                                                                
2:27:37 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
2:28:46 PM                                                                                                                    
                                                                                                                                
RANDY BATES,  director, Division of  Water, DEC, said he  did not                                                               
find the aforementioned document  in existing regulations thus it                                                               
either could be a draft or has been replaced.                                                                                   
                                                                                                                                
REPRESENTATIVE RASMUSSEN read from  the Alaska State Constitution                                                               
as follows:                                                                                                                     
                                                                                                                                
                                                                                                                                
     The legislature shall provide for the utilization,                                                                         
     development, and conservation of all natural resources                                                                     
     belonging to the State, including land and waters, for                                                                     
     the maximum benefit of its people.                                                                                         
                                                                                                                                
                                                                                                                                
REPRESENTATIVE RASMUSSEN  said a  cost benefit analysis  would be                                                               
required to  determine the cost  to a community of  designating a                                                               
Tier 3  body of water,  which may lead to  a loss of  the benefit                                                               
from a mine, or  to the cost of not designating  a body of water,                                                               
which may lead  to a loss of access to  salmon or other renewable                                                               
resources.  She restated her opposition to the amendment.                                                                       
                                                                                                                                
CO-CHAIR  LINCOLN agreed  that  the burden  of  acquiring a  cost                                                               
analysis is  too great for  a nominator,  but said he  prefers to                                                               
support a forthcoming amendment.                                                                                                
                                                                                                                                
REPRESENTATIVE  TALERICO expressed  opposition  to the  amendment                                                               
and his interest in forthcoming  amendments.  He said a nominator                                                               
who provided a general description  would include local knowledge                                                               
of the area.                                                                                                                    
                                                                                                                                
2:32:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ,  speaking as co-maker of  a forthcoming                                                               
amendment, said she supported the  intent of [Amendment 6, K.13],                                                               
but preferred the balance provided by a forthcoming amendment.                                                                  
                                                                                                                                
REPRESENTATIVE  HOPKINS noted  his  concern  about the  objective                                                               
nature  of  the  recommendations  made by  the  commission.    He                                                               
directed attention to  Version K, on page 2,  line 25, subsection                                                               
(e), which  listed seven  factors that are  required to  submit a                                                               
nomination, and agreed  there should be a  general description of                                                               
cost  benefits and  effects on  communities.   He  said he  would                                                               
support a forthcoming amendment.                                                                                                
                                                                                                                                
REPRESENTATIVE  HANNAN   withdrew  [Amendment  6,  K.13].     She                                                               
restated a cost benefit analysis  that is required to be provided                                                               
by  the nominator  would place  a  cost benefit  analysis at  the                                                               
wrong point in the nomination process.                                                                                          
                                                                                                                                
2:36:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ  moved  to adopt  [Amendment  7,  K.18,                                                               
labeled  31-LS0811\K.18, identified  on  the  audio recording  as                                                               
Amendment 10], which read [original punctuation provided]:                                                                      
                                                                                                                                
     Page 3, line 6, following "quality;":                                                                                      
          Insert "and"                                                                                                          
                                                                                                                                
     Page 3, lines 7 - 17:                                                                                                      
          Delete all material and insert:                                                                                       
               "(F)  a general description of the                                                                               
     foreseeable  impacts   of  designating  the   water  as                                                                    
     outstanding  national  resource  water,  including  any                                                                    
     impacts  on  cultural  and  subsistence  uses  and  any                                                                    
     anticipated costs and benefits to the community;                                                                           
               (2)  by an affirmative vote of a majority of                                                                     
     the members of the commission,                                                                                             
               (A)  make a finding of whether the                                                                               
     nomination complies with the  requirements under (1) of                                                                    
     this subsection; and                                                                                                       
               (B)  within one year after finding a                                                                             
     nomination in  compliance, decide whether  to recommend                                                                    
     the designation  of the nominated water  as outstanding                                                                    
     national resource water;"                                                                                                  
                                                                                                                                
     Page 4, lines 3 - 7:                                                                                                       
          Delete all material and insert:                                                                                       
          "(f)  Before deciding whether to recommend a                                                                          
     designation  of   a  nominated  water   as  outstanding                                                                    
     national  resource water,  the commission  shall obtain                                                                    
     any additional information  considered necessary by the                                                                    
     commission to  make the  recommendation and  provide an                                                                    
     opportunity  for  public  notice  and  comment  on  the                                                                    
     nomination.    A   member    who   votes    against   a                                                                    
     recommendation approved  by the commission  may provide                                                                    
     a written summary of the member's dissenting opinion."                                                                     
                                                                                                                                
     Page 4, line 8:                                                                                                            
          Delete "(e) or (f)"                                                                                                   
          Insert "(e)"                                                                                                          
                                                                                                                                
CO-CHAIR TARR objected for discussion purposes.                                                                                 
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ  explained [Amendment 7,  K.18] provides                                                               
a  compromise position  in the  issue of  the description  of the                                                               
costs and benefits of a Tier  3 water designation.  The amendment                                                               
proposes  a  general description  of  the  foreseeable impacts  -                                                               
including costs  and benefits -  and the impacts on  cultural and                                                               
subsistence  uses,  which are  important  in  Alaska; also,  that                                                               
within  one  year  of  finding   the  nomination  compliant,  the                                                               
commission would issue a decision on the nomination.                                                                            
                                                                                                                                
REPRESENTATIVE  HOPKINS directed  attention to  the amendment  on                                                               
page 2, lines 4-6, which read:                                                                                                  
                                                                                                                                
     Page 4, line 8:                                                                                                            
          Delete "(e) or (f)"                                                                                                   
          Insert "(e)"                                                                                                          
                                                                                                                                
REPRESENTATIVE HOPKINS  asked whether the deletion  of subsection                                                               
(f)  would  make  the  recommendation a  final  decision  by  the                                                               
commission.                                                                                                                     
                                                                                                                                
2:38:11 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 2:38 p.m. to 2:40 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ explained  on  page 2,  lines 4-6,  the                                                               
amendment contains conforming  changes recommended by Legislative                                                               
Legal Services.                                                                                                                 
                                                                                                                                
REPRESENTATIVE KOPP  expressed support  for [Amendment  7, K.18].                                                               
He  directed attention  to the  amendment on  page 1,  lines 7-9,                                                               
which read [in part]:                                                                                                           
                                                                                                                                
     including any impacts on cultural and subsistence uses                                                                     
         and any anticipated costs and benefits to the                                                                          
     community;                                                                                                                 
                                                                                                                                
REPRESENTATIVE KOPP suggested  following "community;" adding "and                                                               
current or foreseeable projects;" in  order to be fully inclusive                                                               
of possible ongoing projects in the area.                                                                                       
                                                                                                                                
2:43:06 PM                                                                                                                    
                                                                                                                                
MARIE  MARX,  attorney,  Legislative Legal  Counsel,  Legislative                                                               
Legal Services,  Legislative Affairs Agency, stated  the deletion                                                               
of   subsection  (f)   is  a   conforming  change   due  to   the                                                               
restructuring of the bill.                                                                                                      
                                                                                                                                
REPRESENTATIVE HOPKINS  directed attention  to Version K  on page                                                               
4, lines 8-11,  and asked whether [Amendment 7,  K.18] would make                                                               
any change  to whether the  recommendation by the  commission is,                                                               
or is not, subject to appeal.                                                                                                   
                                                                                                                                
MS.  MARX  said the  amendment  would  not make  any  substantive                                                               
change  because the  recommendation or  action of  the commission                                                               
does  not constitute  a  final  agency decision  or  action.   In                                                               
further  response   to  Representative  Hopkins,   she  clarified                                                               
subsection (f) was changed, and is no longer applicable.                                                                        
                                                                                                                                
REPRESENTATIVE TUCK asked whether  water that has been designated                                                               
Tier  3  could  have  changes,   within  a  certain  range,  when                                                               
subjected to the construction of a bridge or a port.                                                                            
                                                                                                                                
REPRESENTATIVE KOPP  advised for Tier  3 water the  baseline data                                                               
must  be intact;  however,  if  there is  an  ongoing project  in                                                               
place,  those  activities can  continue.    For example,  if  the                                                               
construction of an access road  or infrastructure is foreseeable,                                                               
or ongoing,  the cost of  the project  should be included  in the                                                               
discussion of the Tier 3 water designation.                                                                                     
                                                                                                                                
REPRESENTATIVE  TUCK recalled  Tier  1 water  does  not have  all                                                               
water  quality standards  met;  Tier 2  water  has water  quality                                                               
standards met; Tier 3 water  requires that the water maintain its                                                               
current status.   He  expressed his  understanding Tier  3 [water                                                               
standards] have no requirement to improve the water quality.                                                                    
                                                                                                                                
REPRESENTATIVE KOPP indicated correct.                                                                                          
                                                                                                                                
2:49:28 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN  gave a description  of Mono Lake  in California                                                               
that  is designated  Tier  3, not  because it  is  of high  water                                                               
quality, but because it is rare and unique.                                                                                     
                                                                                                                                
REPRESENTATIVE TUCK noted  at Red Dog mine, due  to proper mining                                                               
techniques, the  zinc concentrations  were reduced and  now there                                                               
are trout in "that stream."   He questioned whether improving the                                                               
water quality in water designated Tier 3 would be a violation.                                                                  
                                                                                                                                
REPRESENTATIVE  KOPP  said  improving  water  quality  is  not  a                                                               
violation of a Tier 3 water designation.                                                                                        
                                                                                                                                
REPRESENTATIVE TUCK asked for more  information on the example in                                                               
California.                                                                                                                     
                                                                                                                                
CO-CHAIR  LINCOLN said  he assumed  the intent  is for  the water                                                               
quality at Mono Lake to remain unchanged.                                                                                       
                                                                                                                                
MR. BATES stated DEC would only  disallow an activity in a Tier 3                                                               
waterbody that  degrades the current  water quality  standard; he                                                               
said he  would provide an  answer related to projects  that clean                                                               
up water and release water in a better form.                                                                                    
                                                                                                                                
2:54:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE RAUSCHER  gave an example  of water that  had many                                                               
sources  of   pollution,  but  the  overall   water  quality  was                                                               
improved,  and  asked whether  a  new  [or increased]  source  of                                                               
pollution would be allowed.                                                                                                     
                                                                                                                                
MR. BATES said the existing water  quality would be tested at the                                                               
time a  Tier 3  waterbody was established;  any new  project that                                                               
would  degrade  the  water,  below  the  level  at  the  time  of                                                               
designation, would be disallowed.                                                                                               
                                                                                                                                
REPRESENTATIVE  KOPP,  in   further  response  to  Representative                                                               
Rauscher, explained a baseline is  established for each pollutant                                                               
individually, so a  higher level of degradation  from an existing                                                               
pollutant would be disallowed.                                                                                                  
                                                                                                                                
There followed  discussion related  to the effects  of activities                                                               
by polluters new to  - or upriver of - Tier  3 waters that create                                                               
mixing zones.   Mr. Bates  was asked  to provide clarity  on this                                                               
issue after further review by DEC staff.                                                                                        
                                                                                                                                
2:58:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HANNAN  directed attention  to Version K,  on page                                                               
4, lines 8-11, which read:                                                                                                      
                                                                                                                                
          (g) A  recommendation or action of  the commission                                                                    
     under (e) or  (f) of the section does  not constitute a                                                                    
     final    agency   decision    or   action,    and   the                                                                    
     recommendation  or action  is  not  subject to  appeal,                                                                    
     including   appeal    or   review   under    AS   44.62                                                                    
     (Administrative Procedure Act).                                                                                            
                                                                                                                                
REPRESENTATIVE  HANNAN  questioned whether  said  [recommendation                                                               
or] action  is not subject  to appeal  because the action  of the                                                               
commission is finalized by legislative process.                                                                                 
                                                                                                                                
MS.  MARX explained  recommendations by  advisory bodies  are not                                                               
generally  subject  to judicial  appeal  or  review, because  the                                                               
recommendations  of  advisory  boards   or  commissions  are  not                                                               
enforceable,  until  the  recommendations are  implemented  by  a                                                               
further  agency,  or legislative  action,  and  therefore do  not                                                               
govern the conduct or the rights of the public.                                                                                 
                                                                                                                                
3:03:08 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR withdrew  her objection to [Amendment  7, K.18] and                                                               
there being no further objection, Amendment 7, K.18 was adopted.                                                                
                                                                                                                                
HB 138 was held over.