Legislature(2011 - 2012)BUTROVICH 205
02/21/2012 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SB192 | |
| Analysis of Royalty Modification (focus on Economic Analysis) Presentation by Department of Natural Resources | |
| SB176 | |
| HB144 | |
| HB185 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 192 | TELECONFERENCED | |
| += | HB 144 | TELECONFERENCED | |
| += | HB 185 | TELECONFERENCED | |
| = | SB 176 | ||
HB 185-EXEMPT DISCHARGES FROM USE OF MUNITIONS
5:10:49 PM
CO-CHAIR WAGONER announced HB 185 to be up for consideration.
CO-CHAIR PASKVAN moved to bring CSHB 185(RES), 27-LS0506\X,
before this committee for purposes of discussion.
CO-CHAIR WAGONER objected for discussion purposes. He invited
the sponsor to present the bill.
5:11:43 PM
REPRESENTATIVE TAMMIE WILSON, sponsor of HB 185, explained that
in 2008 the state sought Environmental Protection Agency (EPA)
approval of its Clean Water Act program. Title 46 now excludes
the firing or other use of munitions in training activities
conducted on active ranges including: active ranges operated by
the U.S. Department of Defense or a military agency unless it
results in a discharge into waters of the United States.
She said that HB 185 was vetted by the EPA, the Department of
Environmental Conservation (DEC), the Department of Defense
(DOD), and the state Department of Military & Veterans Affairs
(DMVA). It clarifies section (e)(7) such that it cannot be
misinterpreted to restrict military exercises on ranges other
than instances where the federal Clean Water Act would apply. It
reduces the chance of litigation in trying to interpret waters
within the U.S.
5:12:55 PM
KEVIN WARD, counsel, U.S. Army, Northern Regional Environmental
Office, Denver, said he was representing the Department of
Defense Regional Environmental Coordinator and the military
services in Alaska, and that they all supported HB 185. The
committee had a couple of questions at the last hearing and he
reiterated his answer that HB 185 adds clarity to current Alaska
Clean Water Act statute so that application of it to military
ranges will be determined in accordance with the federal Clean
Water Act. Secondly, he said this bill has absolutely no effect
on Alaska's primacy of the Clean Water Act program, which it
received from the EPA. This amendment has been coordinated with
the EPA and it has no objection to it.
CO-CHAIR PASKVAN said he was trying to figure out why they were
going through this process and asked what differences there are
between the federal and state standards for discharge into
waterways.
MR. WARD replied that this bill changes language in the existing
Alaska statute that reads: "Unless it results in a discharge
into waters of the United States." to: "Unless otherwise
regulated by the federal Water Pollution Control Act." This will
not result in any different standards, effluent limitations or
water quality criteria between the military and any other member
of the regulated community. The real purpose for this change is
at the phrase "waters of the United States," which is a term
that has been much debated and disputed not only in Congress but
within EPA, the Corps of Engineers and the courts. The courts
decisions, despite their many efforts, have not resulted in
great clarity as to what the meaning of that phrase is and its
meaning may change over time. So rather than have the
application of the state Clean Water Act be determined by a
phrase that is ambiguous and may be further be interpreted in
different ways by the courts, he simply felt that they would
have more clarity and confidence in what situations need to
comply with the state act if it simply refers to the generic
federal act.
CO-CHAIR PASKVAN said he was trying to understand how Alaska
would retain its primacy position as permitting agency if it
defers to federal standards (as compared to state standards).
MR. WARD replied that this amendment will not have any effect on
Alaska's primacy. Alaska received primacy from the U.S. EPA
forward state program about two years ago. EPA has reviewed this
proposed amendment and does not object to it. So Alaska will
remain the permitting agency. The way the requirements will
apply to the military ranges will be if and when the federal act
would apply, so there will be consistency between the Alaska act
and the federal act. The reason that is important to the
Department of Defense is so that it will not be faced with
different requirements when they do or don't have to obtain
permits for their ranges in different jurisdictions in different
states. But if a permit is required, it would be a state permit.
The state departments will also take over the schedule component
for looking at military ranges and determining which permits
will be required in about October 2012.
CO-CHAIR PASKVAN said he understood what he was saying in terms
of primacy in the sense that the State of Alaska retains its
position as the permitting authority, but he perceived the
substantive issue beyond who processes the paperwork was that it
removes substantive Alaskan standards and defers them to the
substantive standards of the federal government. And the river
ways and the federal government has been a hot topic in Alaska
over the last year.
5:21:42 PM
MR. WARD responded with an example of how this might apply. If a
citizen group wanted to assert that a military range required a
Clean Water Act permit pursuant to the state act, they might
assert that there is a discharge to waters of the United States.
Since it is an ambiguous term and is interpreted different ways,
an Alaska court might say yes, this is a "waters of the United
States" under Alaska statute even though it might not be waters
of the United States under the federal act.
5:22:03 PM
SETH BOSANG, Assistant Attorney General, Civil Division,
Environmental Section representing the Alaska Department of
Environmental Conservation (DEC), said he agreed with the
testimony so far that this bill really is intended to make state
and federal law consistent. As it stands right now, there is at
least a potential that state law on this subject would be
broader than federal law and the intention is to make state and
federal law consistent.
CO-CHAIR PASKVAN said this where he was trying to understand the
difference between the Alaska law on this subject and the
federal law that Alaska is ceding to it. Why does it need to be
done?
5:23:21 PM
MR. BOSANG responded that this would not affect the state's
primacy and the state would continue to be the permitting
agency. The only thing it would affect is whether or not a
permit is required and it removes some potential ambiguity where
a court could construe the terms "waters of the United States"
in a way that people may not have intended or anticipated. So
the substantive standard that would apply would remain the same.
SENATOR WIELECHOWSKI said that last year, they asked the
legislative drafting attorney, Alpheus Bullard, about it and he
said the definition of "waters of the U.S." is actually found in
Alaska regulations at 18 AAC 83.990(77). Did Mr. Bosang agree?
Mr. Bullard was also asked to explain what the bill does and he
said it wasn't clear to him.
MR. BOSANG said he didn't know the answer.
MR. WARD answered that he believed that was correct. If it is
not in the state regulations, there is certainly a definition in
the federal regulations. The term has been defined various ways
through policy and court decisions; but a definition that may
look simple on its face has over time become not as simple as
people would like.
CO-CHAIR PASKVAN asked if this addresses whether a permit
application even needs to be presented. In other words, if it's
under the federal law and it's a discharge into federal waters,
there is a potential that there would be no permit application
necessary; but assuming that there was one, the only involvement
that the state has is that it would be the permitting agency
applying purely federal law.
5:27:16 PM
MR. WARD answered that he had accurately stated that the
threshold issue that this addresses is whether or not a permit
is required. Because if a permit is not required as a threshold
matter pursuant to the federal Clean Water Act for a military
range, then one would not be required pursuant to the state act
and that is the consistence they were looking for. If a permit
is required, then it is a state permit and state standards,
procedures and criteria apply to determine the terms of the
permit.
5:28:07 PM
KARLA HART, representing herself, described herself as a private
citizen with a passion for clean water. She was concerned that
this bill was a bit of a sleeper that because of its complexity
might bite us at some point when water is polluted potentially
with very persistent and dangerous toxins, leads and other
things that could be with us for a long time. Alaska's clean
water is too important to its economy and allowing an exemption
to military ranges of our clean water standards seems like a
degradation of the state's regulation over clean water overall.
CO-CHAIR WAGONER closed public [testimony] and held HB 185 in
committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Nikaitchuq_Final_Finding_2008.pdf |
SRES 2/21/2012 3:30:00 PM |
SB 192 |
| Nikaitchuq_Final_Finding_2006.pdf |
SRES 2/21/2012 3:30:00 PM |
SB 192 |
| SRES_DNR-DOG_Royalty_Mod_slides_2_21_12.pdf |
SRES 2/21/2012 3:30:00 PM |
SB 192 |