Legislature(2017 - 2018)GRUENBERG 120
04/03/2018 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB199 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 199 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 199-FISH/WILDLIFE HABITAT PROTECTION; PERMITS
10:04:59 AM
CHAIR STUTES announced that the only order of business would be
HOUSE BILL NO. 199 "An Act establishing general fish and
wildlife permits and major and minor anadromous fish habitat
permits for certain activities; establishing related penalties;
and relating to the protection of fish and game and fish and
game habitat."
10:06:51 AM
REPRESENTATIVE CHENAULT moved to adopt the proposed committee
substitute (CS) for HB 199, labeled 30-LS0438\I, Bullard,
3/29/18 as the working document. There being no objection,
Version I was before the committee.
10:08:20 AM
MATT GRUENING, Staff, Representative Louise Stutes, Alaska State
Legislature, referring to a document titled "HB 199 Explanation
of Changes Version N to I," turned to the first change, which
read as follows [original punctuation provided]:
Page 1, lines 2 and 3:
? The bill's title was slightly altered. It had
previously read "and relating to fishways and the
protection of anadromous and other fish habitat." It
now reads "and relating to fishways and the protection
of anadromous fish and anadromous fish habitat." The
major difference being that the protection of the
anadromous fish was included instead of only
referencing habitat. Other fish habitat was also
removed.
MR. GRUENING reviewed the first change, noting that it seemed
appropriate that the commissioner should consider the effects on
anadromous fish along with the anadromous fish habitat as the
two work together.
10:09:26 AM
REPRESENTATIVE NEUMAN asked if staff would provide the reason
for each change in Version I so members can better understand
the rationale for the changes in Version I.
MR. GRUENING agreed to do so.
10:10:06 AM
MR. GRUENING directed attention to the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Page 1 line 5 through Page 2, line 28:
Added a new Section 1 that adds legislative findings
and policy language to the uncodified law of the State
of Alaska:
? Subsection (a) on Page 1, line 7 through Page 2,
line 4 contains language stating the legislature's
policy to ensure sustainable fisheries by protecting
anadromous fish and habitat, having standards
governing activities that protect anadromous fish and
habitat, providing regulatory certainty and clear
criteria that allows for responsible resource
development, and that the Alaska Department of Fish
and Game (ADF&G) protect anadromous fishery resources
in a manner consistent with Article VIII of the
Constitution of the State of Alaska.
Subsection (b) on Page 2, lines 5 through 28
provides additional language containing guidelines for
protecting anadromous fish spawning, rearing, and
migratory habitat. This language was pulled directly
from (c)(1)(A)(i), (ii), (iii). (iv), (v), (1)(C),
(1)(D), (1)(E), and (1)(F) of 5 AAC 39.222, Policy for
the Management of Sustainable Salmon Fisheries, which
is part of a regulation package passed by the Alaska
Board of Fisheries that provides guidelines for the
protection of salmon habitat.
MR. GRUENING pointed out that this language was non-binding
language or essentially intent language in front of the bill.
While the language states the findings and policies of the
legislature, nothing in this Section 1 is binding, he said.
Basically, subsection (a) affirmed the legislature's commitment
to sustainable salmon fisheries consistent with the Constitution
of the State of Alaska, he said.
MR. GRUENING turned to the next change, subsection (b), which he
indicated was also part of the legislative findings. This
subsection provides guidelines for the protection of salmon
habitat, which was also non-binding language. He reiterated
that it seemed appropriate to put these guidelines in the
preface of the bill.
10:11:44 AM
MR. GRUENING directed attention to the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Page 2, line 29 through Page 3, line 7:
AS 16.05.841. Fishway required.
Added a new Section 2 that amends the Fishway Act to
require that the passage of upstream and downstream
fish is provided for. Currently, AS 16.05.841 only
requires fish passage for downstream migrants.
MR. GRUENING explained that the change added language "upstream"
because some concern had been expressed that perhaps this
created a loophole by only requiring fish passage for downstream
migrants. He acknowledged that if fish cannot get upstream it
would not take long before fish would not be going downstream
either. It seemed appropriate to address both upstream and
downstream passage, although this has not yet been an issue, he
said.
10:12:43 AM
REPRESENTATIVE NEUMAN asked whether this provision would prevent
a person from building a bridge across a stream since the
language [AS 16.05.841] seemed to imply that doing so would
create an obstruction.
MR. GRUENING answered the referenced language was existing
statute that had been adopted from statehood. The only thing
being changed in this statute was to add a requirement for
upstream passage of fish. He offered his belief that so long as
fish can move freely, it would satisfy this section.
10:14:22 AM
MR. GRUENING directed attention to the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Section 4 on Page 3, lines 18 through 28, formerly
Section 2 on Page 2, line 1 through Page 3, line 11
Subsection (a) on Page 3, lines 19 through 21,
formerly Page 2, lines 2 through 4:
? Deleted "adjacent riparian areas" and inserted
"wetland" on line 21.
MR. GRUENING stated that "formerly" refers to the previous
version of HB 199, Version N, for members' reference. He
reviewed the change and explained that currently the Department
of Natural Resources (DNR) has the authority on riparian areas.
In addition, many municipal ordinances and provisions in the
Forest Resources and Practices Act also establish riparian
setbacks. The goal was to avoid overlapping authority so the
reference to "adjacent riparian areas" in the bill was removed.
He explained the process, such that when ADF&G creates
protection for a setback in a riparian area, the department must
first approach DNR and request authority to do so for a project.
The sponsor did not want to interrupt this process. The term
"wetlands" was inserted because although ADF&G was currently
cataloging wetlands in the Anadromous Waters Catalog (AWC), it
did not have the explicit statutory authority to do so.
10:16:00 AM
REPRESENTATIVE NEUMAN said it seemed that this change in statute
would also allow the ADF&G to catalog different uses of
fisheries, which he characterized as being a fairly large
change.
MR. GRUENING answered that the Anadromous Waters Catalog is
already in statute. The change to add "wetlands" in statute
means that the [ADF&G] is statutorily authorized and obligated
to catalog them. Although the department started doing this two
or three years ago, the sponsor wanted to be certain the ADF&G
has the explicit authority to do so. He reiterated that the
anadromous waters catalog is already in statute and this change
would add a different type of waterbody that ADF&G would be
authorized to catalog, he explained.
10:17:04 AM
REPRESENTATIVE NEUMAN asked whether this would be done in
consultation with other departments or if the ADF&G would have
full authority to make the changes. He further asked if that
would be a change in statute.
MR. GRUENING agreed it would be a change in statute. He
deferred to the ADF&G as to the reason the department began the
process to catalog wetlands, although the wetlands in question
were ones with a nexus between different anadromous water bodies
necessary to support wetlands. He clarified that there was a
difference between the wetlands being cataloged and the wetlands
that the US Army Corps of Engineers (USACE) uses for its Section
404 permit program, which also includes forests that people
would not typically think of as wetlands.
REPRESENTATIVE NEUMAN responded that he thought it would be an
interesting discussion.
10:18:02 AM
REPRESENTATIVE CHENAULT asked for further clarification on
whether the ADF&G had been cataloging wetlands without the
authority to do so.
MR. GRUENING answered yes. He related his understanding that
nothing prevented ADF&G from doing so; however, the ADF&G does
not have direct statutory guidelines and authority to catalog
wetlands. He deferred to the department for further
explanation.
10:18:40 AM
REPRESENTATIVE EDGMON stated this was his first hearing on HB
199. He asked whether it would be fair to characterize this
bill as "modernizing" some of these terms given that these
statutes go back quite some time.
MR. GRUENING answered yes; he acknowledged that it was a fair
characterization to consider this as modernizing these statutes.
He commented that he did not wish to unfairly cast aspersions on
actions the department had taken.
REPRESENTATIVE EDGMON did not think he had done so but he wanted
to be sure he understood [the genesis of some of the changes.]
10:19:38 AM
MR. GRUENING directed attention to the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Former subsection (b) was deleted (Page 2, lines 5
through 13). This subsection contained the process by
which the department may conduct a site-specific
analysis to determine anadromy.
MR. GRUENING said that since the anadromous waters presumption
was deleted, the site-specific analysis determination section
was no longer needed. He explained in the process of
determining if a water body was presumed anadromous, that
someone could request that ADF&G conduct a site-specific
analysis to determine if the water body was anadromous or not.
Without the presumption, the ADF&G currently would sample water
bodies prior to conducting an activity not listed in the
anadromous waters catalog. He characterized this as a
conforming change to reflect the repeal of subsection (c).
10:20:41 AM
MR. GRUENING directed attention to the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Former subsection (c) was deleted (Page 2, lines 14
through 23). This subsection contained the anadromous
waters presumption.
MR. GRUENING said this was the anadromous waters presumption,
such that all naturally-occurring permanent or intermittent
rivers, lakes, streams and adjacent riparian areas are
considered anadromous if they are connected to a water body in
the Anadromous Waters Catalog (AWC) without a physical barrier
in between that prevented the upstream and downstream passage of
fish.
MR. GRUENING explained that this subsection was deleted after
discussions were held with several departments and through
research that determined the presumption was not necessary.
Although it varies from area to area in the state, approximately
50 percent of the streams, rivers, and lakes in Alaska have
already been cataloged and surveyed. Of the remaining 50
percent, approximately 20-25 percent will never be cataloged due
to the altitude. Although he was unsure of the specific
altitude, he believed that above 5,000 feet fish were not found.
Further, the department does not catalog some water bodies due
to the gradient of certain streams or rivers. For example,
areas such as the Denali National Park and Preserve and other
protected-use areas it would be unlikely development would
occur. Permitting agencies indicated that if the water body was
not in the anadromous waters catalog the agencies will sample to
determine the presence of anadromous fish and sampling occurs on
all projects.
10:22:53 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I, "which read as follows [original
punctuation provided]:
Former subsection (d) was deleted (Page 2, lines 24
through 26). This subsection contained a clarification
regarding what area of law the deleted presumption
applied to.
MR. GRUENING explained that this subsection was removed because
concerns were raised that the presumption might be applied to
other areas and overlap with other authorities; for example, it
might overlap with the Board of Fisheries' (BOF) authority to
regulate fish.
10:23:36 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Former subsection (e) was deleted (Page 2, line 27
through Page 3, line 3). This subsection contained
requirements for the department to adopt regulations
that are no longer necessary as the corresponding bill
sections have been deleted.
10:23:58 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (b) on Page 3, lines 22 through 28,
formerly subsection (f) on Page 3, lines 4 through 11:
? Deleted "naturally occurring" in front of
"permanent" on line 23. This conforming change was
made throughout the bill.
? Deleted "adjacent riparian areas" and inserted
"wetland" on line 24. This conforming change was made
throughout the bill.
? Inserted "wetland" on line 27. This conforming
change was made throughout the bill.
MR. GRUENING said concerns were raised about the definition of
"naturally occurring." At times ADF&G has created spawning
habitat to increase protections for anadromous fish; however,
these sections of enhanced streams are not included in the
anadromous waters catalog as "naturally occurring" since they
are man-made stream sections. In addition, when a river has
been altered or relocated during a road project, that altered
segment would not be considered "naturally occurring" and would
also not be included in the Anadromous Waters Catalog. This
change closed a loophole by deleting "naturally occurring" and
would ensure that all rivers, lakes, and streams that have
anadromous fish can be cataloged and protected, he said.
10:25:37 AM
REPRESENTATIVE NEUMAN asked for clarification whether the
department has a framework it used when cataloging "naturally
occurring" anadromous waters and if the department worked with
other agencies or the local fishing or mining industries.
MR. GRUENING responded that it is a collaborative process and
was not just the department's determination. He deferred to Mr.
Benkert, ADF&G, to go into more detail.
10:26:59 AM
REPRESENTATIVE NEUMAN asked to continue the presentation, noting
that he could wait for the department's explanation until later.
10:27:12 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (a) on Page 3, line 29 through Page 4, line
8, formerly Page 3, lines 13 through 29:
? Inserted "or governmental agency" after "person" on
line 3.
? An error was corrected from the previous draft. On
page 3, line 17 of the previous draft, it stated that
a person must obtain a permit "before constructing a
hydraulic project that uses wheeled, tracked,
excavating, or log dragging equipment?" This was
supposed to read "before constructing a hydraulic
project or using wheeled, tracked, excavating, or log-
dragging equipment?" The error was corrected on Page
4, line 3 of the current version to align with the
sponsor's intent and mirror current statute.
? Deleted references to the anadromous waters
presumption.
MR. GRUENING said "governmental agency" was added to conform
with the existing AS 16.05.871. Additionally, an error was
corrected from the previous draft, which required that a person
must obtain a permit "before constructing a hydraulic project
that uses wheeled, tracked, excavating, or log dragging
equipment." Version I also deleted references to the anadromous
waters presumption, he said.
10:28:56 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (a) on Page 5, line 12 through Page 6, line
2: "Consideration of effects of activity on anadromous
fish and anadromous fish habitat." Formerly Subsection
(a) on Page 5, lines 2 through 23: "Significant
adverse effects,"
? The subsection was renamed as shown above.
? Inserted "anadromous fish" as a factor to be
considered along with "anadromous fish habitat" on
line 14. This resulted in a conforming change
throughout the bill.
? The wording in (a) on lines 13 through 16 was
altered. Instead of the more prescriptive language of
"the commissioner shall find that a proposed activity
has the potential to cause significant adverse effects
on anadromous fish habitat under AS. 16.05.871-
16.05.901 if the proposed activity?", it now reads "in
determining if a proposed activity has the potential
to adversely affect anadromous fish and anadromous
fish habitat under AS 16.05.871-16.05.901, the
commissioner shall consider whether the proposed
activity?"
? Deleted the term "significant" in front of "adverse
effects." This aligns the terminology in the bill with
other regulatory agencies and avoids confusion
regarding determining what "significant" is. This
conforming change was made throughout the bill.
? Deleted "significantly", which was formerly on Page
5, line 10.
? Inserted a new (a)(7) on Page 5, lines 30 through
31. It states that the commissioner must consider if
an activity will "diminish the stability of a river,
lake, stream, or wetland bank or bed" in making the
determination under (a).
MR. GRUENING reviewed the changes and pointed out that the
rationale for the title change was to recognize the commissioner
must also consider the effects on fish and not just the habitat.
He stated that the wording on lines 13-16 was altered to provide
a little more discretion. He explained that deleting the term
"significant" in front of "adverse effects" was suggested by
multiple departments. Initially, adding "significant" seemed to
add a higher bar; however, the USACE and other permitting
agencies use the term "adverse effects," he said. These
regulatory agencies thought using the term "significant" was
subjective and made it more difficult to determine what that
meant. This would align the terminology, he said. Referring to
(a)(7) on page 5, he stated that this provision seemed like an
important sidebar.
10:31:36 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (a)(6) on Page 8, line 30 through Page 9,
line 18, formerly on Page 8, lines 18 through 22:
Former Subsection (a)(6)(A) and (B) were deleted.
These subsections specified that the commissioner must
provide in the major anadromous permit draft
assessment a determination of whether an activity's
adverse effects could be prevented or minimized under
(d) of this section or were likely to cause
substantial damage under (e) of this section. Both (d)
and (e) were deleted in the current draft.
New subsections (a)(6)(A)(i)(ii) and (6)(B)(i)(ii)
were inserted on Page 9, lines 1 through 18 in place
of the deleted (a)(6)(A) and (B). These new
subsections contain the commissioner's initial
determination that a permit may or may not be issued
based on whether the activity's adverse effects can be
prevented or if the effects can be minimized to the
extent necessary to protect anadromous fish and
anadromous fish habitat, the affected habitat can be
restored to the extent necessary to protect anadromous
fish and anadromous fish habitat, or the effects of
the activity can be otherwise mitigated to the extent
necessary to protect anadromous fish and anadromous
fish habitat.
10:33:01 AM
MR. GRUENING stated that the new subsections would be part of an
initial draft assessment and determination that the commissioner
must put in writing, including an explanation of the rationale
used to make the determination. The public noticing would allow
the public an opportunity to scrutinize, comment on, and
ultimately challenge the issuance of a permit, he said. He
characterized this as a main provision in this bill that was
very potent. He suggested the Board of Fisheries (BOF) and
Alaskans want a transparent process, including notification of a
permit and the ability to comment on the commissioner's
determination as to whether something protects anadromous fish
and fish habitat. It ultimately allows people who disagree an
avenue to pursue it in court, he said.
10:34:29 AM
REPRESENTATIVE NEUMAN asked whether there was a structure or
specific guidelines each commissioner uses when making these
determinations since the mining industry or commercial fish
industries want to know the rules.
MR. GRUENING answered no; that there is nothing specific in
statute. The language states that the commissioner shall issue
a permit unless the plans and specifications are insufficient
for the protection of fish and game; however, in practice the
departments have a very well-established structure. The
department reviews the project, including the scope of activity,
the duration, all the plans and specifications and then first
attempt to prevent adverse effects or minimize them. If the
adverse effects cannot be prevented, the department would
require mitigation or restoration.
MR. GRUENING further responded that the bill provided specific
criteria that the commissioner must consider and although it was
not 100 percent prescriptive, the bill does codify the process
for mitigation measures. Further, mitigations must be
implemented in a way that prevents or minimizes disturbing fish
habitat and is geared toward the protection of fish. One goal
for this draft was to avoid being overly prescriptive can result
in numerous unintended consequences on industries. He
acknowledged that Version I would give the commissioner more
discretion but provided a transparent structure and
accountability for any determination.
10:37:51 AM
REPRESENTATIVE NEUMAN offered his belief that this process would
be better set in regulation since the process always evolves.
CHAIR STUTES stated that the structure would be included in
further discussions.
MR. GRUENING pointed out that the bill does give the ADF&G
direction to establish regulations that are consistent with the
chapter.
10:38:49 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Former Subsection (d) was deleted (Page 9, lines 5
through 11). This subsection contained the conditions
under which adverse effects can be considered
minimized under the bill.
MR. GRUENING said essentially this subsection was prescriptive,
which said under certain conditions adverse effects may be
considered minimized, but for other instances it did not. This
resulted in unintended consequences on construction and resource
development, he said.
10:39:30 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Former Subsections (e)(1), (2), and (3) were deleted
(Page 9, lines 12 through 16). Subsection (e) stated
that adverse effects could not be prevented or
minimized if they were likely to cause substantial
damage. Subsections (1), (2), and (3) defined
substantial damage.
MR. GRUENING offered that "substantial" damage was defined in a
several ways and state agencies feared that using a strict,
literal interpretation would not even allow culvert placement,
which protect fish. Further, the department was concerned that
even good projects could not move forward.
10:41:08 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Former Subsections (f)(1) and (f)(2)(A) and (B) were
deleted (Page 9, line 26 through Page 10, line 7).
These subsections contained the factors the
commissioner shall consider when determining if fish
habitat will recover or be restored within a
reasonable period and to a condition that will sustain
the natural and historic levels of fish.
MR. GRUENING said this subsection was tied in with the
substantial damage section and whether something could be
minimized.
10:41:39 AM
REPRESENTATIVE NEUMAN wondered what plan would be to bring back
a tributary, for example, in instances where anadromous fish
were at risk of extinction from pike or pollution. He expressed
concern that removing the language "commissioner shall consider
when determining if fish habitat will recover or be restored
within a reasonable period," that it may be removing some
assurance that rules and regulations will be in place. He hoped
this issue would be addressed.
10:43:01 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Page 10, line 5:
? Inserted a requirement that the amount of the bond
imposed by the department is to be included in the
final assessment and written permit determination.
MR. GRUENING related this bill provides the ADF&G the authority
to require a bond for restoration and mitigation. This
provision would require the amount of the bond to be included in
the final assessment and written permit determination, which
allows for public comment and challenge. One of the main
components of Version I was to enhance the public's ability to
obtain information, comment, and affect that process in a way
not previously available to them during the permitting process,
he said. Currently, the public does not receive any
notification of permits being issued, let alone to have an
opportunity to comment, disagree, or challenge the
commissioner's determination or decision.
10:44:49 AM
REPRESENTATIVE TARR, referring [to new subsections (e)(1)(C)(i)
and (ii)], asked whether a bond would always be required or if
this provision allowed the commissioner the discretion to
determine if bonding is necessary. She did not see "shall" in
the language, she said.
MR. GRUENING answered that it read, "if applicable." The
language she referenced refers to a later section, where
government entities are exempt from the bonding requirements.
However, the commissioner can decide the amount of the bond,
which could be zero, which would alleviate that concern. It
would be public noticed and could also be challenged. In
further response to Representative Tarr, he agreed that the
public would have an opportunity to comment and appeal bonding.
He added that the commissioner would always be required to
consider whether a bond is required, based on scientific
information. The ADF&G has a familiarity with mitigation
measures and restoration, so the department can determine the
exact cost. He recalled that this provision requires a $5
million bond and must be justified in writing.
10:46:53 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (e)(1)(C)(i) and (ii) on Page 10, lines 18
through 29, formerly (h)(1)(c) on Page 10, lines 25
through 27:
Former (h)(1)(c) was deleted. This specified that a
permit may only be issued if it will not cause
substantial damage under the now deleted (e).
? In its place, new subsections (e)(1)(C)(i) and (ii)
were inserted. These new subsections specify that the
commissioner may only issue a major permit if it is
determined that an activity's adverse effects can be
prevented or if the effects can be minimized to the
extent necessary to protect anadromous fish and
anadromous fish habitat, the affected habitat can be
restored to the extent necessary to protect anadromous
fish and anadromous fish habitat, or the effects of
the activity can be otherwise mitigated to the extent
necessary to protect anadromous fish and anadromous
fish habitat. This determination is subject to a
request for reconsideration.
MR. GRUENING related that former (h)(1)(c) was deleted, which
specified that a permit may only be issued if it will not cause
substantial damage under the now deleted (e). In its place, new
subsections (e)(1)(C)(i) and (ii) were inserted. He
characterized this subsection as being a mirror to the initial
draft assessment previously discussed where the commissioner
must determine whether a permit may be issued based on its
effects on anadromous fish habitat. In the final draft
assessment, the commissioner could only issue a permit, which is
challengeable, that when an activity's adverse effects can be
prevented, if the adverse effects can be minimized to protect
anadromous fish or fish habitat, or if the affected areas can be
restored, or other mitigation measures can be taken.
MR. GRUENING emphasized that even if the effects can be
minimized to protect anadromous fish or fish habitat, permittees
are still required under the mitigation section of the bill to
restore or take other mitigation measures, which is in line with
the current process, he said.
10:48:54 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (g) on Page 11, line 14 through Page 12,
line 1, formerly Subsection (j) on Page 11, lines 12
through 24:
? Clarified that the bond may be initiated and held by
the department or another state agency on Page 11,
line 18.
? Added language on Page 11, line 26 through Page 12,
line 1 to specify that the commissioner may at any
time raise, lower, or eliminate the bond if they find
that it is more or less than what is necessary to
complete the mitigation measures. Furthermore, the
department must provide public notice of such a
change. These actions are subject to a request of
reconsideration by an interested person or the
applicant.
MR. GRUENING reviewed subsection (g) and added the rationale for
this change. He explained that a process currently exists for
bonding projects through DNR and the Department of Environmental
Conservation (DEC), noting a mining reclamation statute also
exists. The goal through the state bonding pool was to
streamline the process and not necessarily require two separate
bonds for a project. Instead, it gives the department authority
to accept a bond that was posted through the state bond pool,
for example, if the DNR was taking the lead on an overall
project but required a concurrent fish habitat permit.
10:50:02 AM
MR. GRUENING, referring to language on Page 11, line 26 through
Page 12, line 1, explained this would allow the commissioner to
adjust or release the bond, for example, to raise the bond if
the project does not go well and the bond needed to be
increased. It requires public noticing and allows for
challenges.
MR. GRUENING related a scenario in which a bond was required for
fish habitat due to mitigation measures that were not complied
with under the permit but once the permittee complied, the bond
would no longer be necessary. This provision would allow the
commissioner to adjust or release the bond. The commissioner
would also have the authority and flexibility to raise, lower,
or release the bond and it requires public noticing and allows
for challenges.
10:51:20 AM
MR. GRUENING referred to and reviewed the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Subsection (h) on Page 12, lines 2 through 8:
Added a new subsection (h)(2) on lines 5 through 6
specifying that the department may receive the amount
of the bond from another state agency in lieu of a
separate bond from the applicant.
Added a new subsection (h)(3) on lines 7 through 8
specifying that a bond required in this chapter may be
part of another bond held or initiated by the
department or another state agency.
MR. GRUENING explained that subsection (h)(2) was conforming
language, such that this could be part of a bond that is held by
another state agency and it does not have to be two separate
bonds for the same activity; and subsection (h)(2) was
conforming language.
10:52:07 AM
MR. GRUENING stated that numerous changes were made to AS
16.05.887, the permit conditions and mitigation measures, which
would be covered next.
MR. GRUENING referred to and reviewed the next change in "HB 199
Explanation of Changes Version N to I," which read as follows
[original punctuation provided]:
Subsection (a) on Page 12, line 17 through Page 13,
line 14, formerly Page 12, line 4 through Page 13,
line 10.
Sec. 16.05.887 Permit conditions and mitigation
measures.
Deleted lines 8 through 9 from the previous version
of the bill, which stated that the "commissioner may
not issue a permit for an activity that the
commissioner determines." These two lines prefaced the
deleted subsections (a)(1), (2), (3), (4), and (5).
10:52:40 AM
MR. GRUENING reviewed the changes for the deleted
subsections (a)(1), (2), (3), (4), and (5) individually,
beginning with subsection (a)(1), which read as follows
[original punctuation provided]:
Former Subsection (a)(1) was deleted (Page 12, lines
10 through 11). This subsection had stated that a
permit may not be issued if it will cause substantial
damage under the now deleted AS 16.05.885(e).
o In its place, new subsection (a)(1) was inserted on
Page 12, lines 20 through 21. This language was in the
in previous subsection (a) and was moved down to
(a)(1) for structural purposes.
MR. GRUENING explained that subsection (a)(1) was deleted
because substantial damage was very definite and did not give
any leeway for the extent of the damage. For example, a culvert
might not be placed because it permanently eliminated anadromous
habitat. It recognized that any project would eliminate at
least some small square footage of habitat. He offered another
example, a dam built on what was previously anadromous fish
habitat, which is now permanently altered by the dam and cannot
be restored. Former subsection (a)(1) was replaced by a new
subsection (a), which is existing language that was moved for
structural purposes.
10:54:10 AM
MR. GRUENING reviewed the changes in subsection (a)(2),
which read as follows [original punctuation provided]:
Former Subsection (a)(2) was deleted (Page 12, lines
12 through 13). This subsection had stated that a
permit may not be issued if it necessitates water
treatment, groundwater pumping, or other means of
mechanical, chemical, or human intervention in
perpetuity.
o In its place, new subsection (a)(2) was inserted on
Page 12, lines 22 through 23. This subsection
specifies that the commissioner must require a
permittee to implement the activity in a manner that
the commissioner has determined will protect
anadromous fish and anadromous fish habitat.
MR. GRUENING read former subsection (a)(2), then stated that
many issues arose with this subsection since many things require
human intervention in perpetuity: a bridge, dam, culvert, road,
or municipal wastewater discharge plant. Numerous unintended
consequences arose with the language in former subsection
(a)(2), he said. It was better to give the commissioner some
discretion with what shall not be permitted and to allow
citizens of Alaska to participate in the process [via the public
notice and public comment process]. In its place, subsection
new (a)(2) was inserted in recognition of when the current AS
16.05.871 was repealed and reenacted, that required the
department to protect anadromous fish and fish habitat no matter
what activity occurred. He explained that the wording was
slightly different than current statute but retaining this
provision was important especially given the enhanced public
process.
10:56:15 AM
MR. GRUENING, referred to former subsection (a)(3), which was
deleted [page 12, lines 14-15], which read as follows [original
punctuation provided]:
Former Subsection (a)(3) was deleted (Page 12, lines
14 through 15). This subsection specified that a
permit may not be issued if it will replace or
supplement a wild fish population with a hatchery
dependent fish population.
MR. GRUENING characterized the issue of supplementing a wild
fish population as a difficult one, since nobody wants to
replace a wild fish run with a hatchery-dependent fish
population. He highlighted a new process that has not been used
much in Alaska, called "conservation hatcheries." This process
has been used in certain places in the Lower 48 and may
ultimately be of interest if Alaska experiences more run
failures. He described "conservation hatcheries," which use
geneticists to pair the genetics of fish being produced with the
natural wild run; one that ensures genetic variation. This
would enhance the wild fish population with a hatchery process
but "conservation hatcheries" are not geared toward production.
He characterized it as geared towards animal husbandry. He
pointed out another concern raised by some hatcheries was that
if a hatchery was in an anadromous waterway and strays from the
hatchery were supplementing a wild run, such that the hatchery
could be prohibited from obtaining a permit.
10:58:13 AM
REPRESENTATIVE EDGMON referred to the bonding on page 11, line
18, of HB 199 [Version I] which speaks to the bond being
initiated and held by the department or another state agency.
He asked for further clarification if there were disputes
between ADF&G's assessment or DNR how the disputes would be
resolved and if ADF&G's commissioner held "the tie breaker."
MR. GRUENING responded that this pertained to a new process, so
he would give his best guess. A Title 16 permit would not be
issued without the [ADF&G] commissioner's authorization. He was
unsure of how disputes would be resolved; however, he suggested
that ADF&G and DNR would try to work together to come to an
amicable resolution. He further suggested that it might be
addressed in a regulations project if HB 199 were to pass. He
offered to review it for the next draft.
11:00:16 AM
RON BENKERT, Fish & Game Coordinator, Anchorage Area Office,
Division of Habitat, Alaska Department of Fish & Game (ADF&G),
echoed Mr. Gruening's sentiment. He offered his belief that the
department would develop an MOU [Memorandum of Understanding]
between the state agencies to address how the agencies would
address a bonding system together. He related that typically an
ADF&G bonding specialist would work with applicants and the
other departments. If a dispute arose, it would be elevated to
the commissioner level and the commissioners could resolve the
issue and meet mutual goals, he said.
11:01:21 AM
REPRESENTATIVE EDGMON said he thought this may be something he
would like to see explored more as the bill evolved.
11:01:37 AM
MR. GRUENING continued the explanation of subsection (a). He
referred to subsection (4), which read as follows [original
punctuation provided]:
Former Subsection (a)(4) was deleted (Page 12, lines
16 through 17). This subsection specified that a
permit may not be issued if it will dewater anadromous
fish habitat for a period likely to cause permanent or
long-lasting adverse effects to that habitat.
MR. GRUENING explained that this created unintended
consequences; for example, any structure placed on an anadromous
fish habitat, such as a dam, that it would dewater that affected
anadromous fish habitat. He reiterated attempting to be too
prescriptive "tied the hands" of projects the state needs to
move forward to achieve a vibrant economy.
11:02:48 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
? Former Subsection (a)(5) was deleted (Page 12, lines
18 through 19). This subsection specified that a
permit may not be issued if it will permanently
relocate all or portions of a river, lake, or stream
if the relocation will disrupt the passage of
anadromous fish.
MR. GRUENING offered an example related to road construction.
During road construction, the Department of Transportation &
Public Facilities (DOT&PF) must block passage of fish for a
short period of time. He characterized the thorough process
used, including that fingerlings and smolt would be collected
and relocated to the portion of the river that was unaffected by
the project.
11:04:38 AM
BEN WHITE, Environmental Manager, Division of Statewide Design &
Engineering Services, Department of Transportation & Public
Facilities (DOT&PF), answered that with respect to fish windows,
timing, and construction, that the department's preferred
alternative was to avoid road work when fish are present. In
instances with short construction windows, the department will
block off the stream and either staff fish biologists or ADF&G
biologists will relocate the fish from one side of the project
to the other.
11:05:28 AM
REPRESENTATIVE EDGMON asked whether that also pertained to fish
that were not in the Anadromous Waters Catalog.
MR. WHITE acknowledged the department migrates resident fish as
well as anadromous fish; for example, Arctic grayling or Dolly
Varden have been moved.
REPRESENTATIVE EDGMON related his understanding that the
DOT&PF's practice would be the same and all species of fish
would be relocated.
MR. WHITE agreed that it was the department's typical practice.
MR. GRUENING referred to the Fishway Act, AS 16.05.841, which
required fish passage.
11:06:35 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (b) on Page 12, line 24, formerly page 12,
line 2:
Subsection (b) on page 12, line 27. Inserted "to
protect anadromous fish and anadromous fish habitat"
after "actions." This simply clarifies the purpose
behind the mitigation measures.
MR. GRUENING reviewed the changes to subsection (b), noting that
this subsection provides the intent for mitigation measures. He
explained that the language in subsection (b)(1) [Version N],
read "limit" significant adverse effects, not "prevent,"
however, subsection (b)(2) required that if adverse effects
cannot be "prevented," they must be "minimized." He
characterized this as a conforming change, which was also in
line with the ADF&G's current process, not codified. The ADF&G
would first attempt to "prevent" the effects of activity on
anadromous fish, if that is not possible it "minimizes" the
effects, and lastly, the department would "restore" or take
other mitigation measures, he said.
11:07:52 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
? Subsection (b)(2) on Page 13, lines 1 through 3.
Inserted "or changing" after "limiting" on line 1.
Inserted "or other manageable qualities" after
"implementation" on lines 2 through 3. This addition
adds more flexibility regarding how the department can
minimize effects.
MR. GRUENING said this change was suggested by the Legislative
Legal and Research Services attorney to provide more
flexibility. Adding language "or other manageable qualities"
provided more flexibility.
11:10:19 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
? Subsection (b)(3) on Page 13, line 6. Deleted "and"
and inserted "or." It made more sense to require the
department to restore habitat or take other mitigation
measures, rather than restore habitat and take
mitigation measures. Sometimes, restoring is the
mitigation measure that needs to be taken whereas in
some instances, other mitigation measures may be more
appropriate.
? Subsection (b)(3) on Page 13, lines 6 through 7.
Inserted "that the commissioner determines are
necessary to protect anadromous fish and anadromous
fish habitat" after "measures."
MR. GRUENING explained that it made more sense to have the
department restore habitat "or" take other mitigation measures
rather than do both restoration and taking other mitigation
measures. In fact, sometimes restoring habitat was the
mitigation measure being taken; for example, one cannot restore
habitat on which a dam sits; however, other mitigation measures
could be taken. This would allow the [permit conditions] to do
more than just restore habitat, which provides more flexibility.
MR. GRUENING referring to the change in subsection (b)(3) on
Page 13, lines 6 through 7, explained that this specifically
inserted the language specifically into the mitigation and
restoration necessary for protecting anadromous fish and
anadromous fish habitat.
11:10:45 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (a) on Page 13, lines 15 through 23,
formerly on Page 13, lines 11 through 26:
Sec. 16.05.889 Reconsideration of determinations.
? Added new subsections (a)(1), (2), and (3) that
specify that requests for reconsideration are limited
to whether a proposed activity should be classified as
a minor or major permit, a final determination to
issue or refuse to issue a permit, the amount of a
required bond, the reduction of the amount of the
bond, or the elimination of a bond requirement for an
activity. An interested person can request
reconsideration of any determination that is part of
the final determination. Previously, an interested
person could request a reconsideration of any
determination at any point along the process, leaving
room for abuse.
MR. GRUENING said that provisions were added to allow for
reconsideration of determinations. This sets up the activities
and the points at which activities can be appealed. For example,
major permits have a public appeal process whereas minor permits
do not. This provision, AS 16.05.889, would allow the public to
challenge the consideration of whether the permit should be
classified as a major or minor permit, he said. This subsection
clarified at what point in the process challenges can occur,
including the commissioner's final determination to issue or not
issue a permit, and the amount of the bond.
11:12:44 AM
MR. GRUENING explained that the prior draft [Version N] set up
numerous determinations and it allowed for someone to challenge
for reconsideration at any point in the permitting process.
This could result in reconsideration at 15-20 different points
along the process, which seemed like a cumbersome way to try to
permit a project. He reiterated that these changes allow for
appeals, but only at certain points in the permitting process.
11:13:17 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (b) on Page 14, line 20:
? Added language to specify that the commissioner may
wave fees if the applicant or permittee is a
governmental agency.
MR. GRUENING said it seemed odd the DOT&PF would be charged a
fee by the ADF&G, so it was removed.
11:13:38 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Subsection (a) on page 15, line 9:
? Changed the wording so that the grandfather clause
applies to facilities, activities, operations, or
projects that have in full force and effect "all
authorizations required by law" instead of simply "all
required state authorizations."
MR. GRUENING related that this concern was specifically raised
by the Alaska Power Association. He explained that Snettisham
Hydroelectric facility provides significant power to the Juneau
community and it has authorizations that predate state
authorizations, including a federal authorization. It was
important to include all required authorizations rather than
limiting it to state authorizations.
11:14:25 AM
MR. GRUENING referred to the next change in "HB 199 Explanation
of Changes Version N to I," which read as follows [original
punctuation provided]:
Page 15, lines 24 through 29:
Sec. 16.05.899 Enforcement Authority.
This is a new section that gives authority for
departmental employees designated by the commissioner
to directly issue citations for a violation of AS
16.05.871-16.05.901 or a regulation adopted under
those statutes if it is not a misdemeanor and there
are is probable cause to believe a violation has
occurred.
MR. GRUENING stated that this bill creates an opportunity for
ADF&G to pursue violations rather than a misdemeanor charge. He
explained that currently the only enforcement available to ADF&G
is to charge violators with misdemeanors. This made it
cumbersome and difficult to prosecute violators since charging
someone under an unclassified misdemeanor would require working
through a prosecutor and district attorney to determine if a
case will move forward. This would allow designated ADF&G
employees to issue a citation to a violator.
11:16:08 AM
REPRESENTATIVE NEUMAN recalled previous discussions with ADF&G
and DNR on structures built under land-use permits. The
department has indicated it does not have the authority to
prevent unauthorized structures from being built. He asked
whether this enforcement provision "has any teeth."
MR. GRUENING said that [AS 16.05.899] does not affect DNR's
authority. He characterized this provision as one "that has
teeth" and was requested by those staff in the field. He
related a scenario in which a biologist observed three or four
people driving through an anadromous stream, tearing up the
stream bed. Under this enforcement provision, the biologist
could issue a bailable citation, which makes it much more
effective. Another example would be if ADF&G inspected a
project and discovered non-compliance of permit conditions, the
ADF&G's staff could issue a citation, he said.
REPRESENTATIVE NEUMAN suggested that the [committee] might
consider [adding enforcement authority for] DNR also since ATVs
and other vehicles could disturb anadromous fish streams that
would fall under the DNR permitting process, he said.
11:19:18 AM
MR. GRUENING directed attention to the next change in "HB 199
Explanation of Changes Version N to I, which read as follows
[original punctuation provided]:
Section 10 on Page 15, line 30 through Page 16, line
2:
Former Section 8 (Page 15, lines 13 through 17) was
split into two parts at the request of the Alaska
Court System so that the violation and the misdemeanor
were not housed in the same subsection.
MR. GRUENING explained that the violation and misdemeanor
provisions are cited separately in Version I, which he described
as an accounting function.
11:19:53 AM
MR. GRUENING recapped the major provisions in HB 199, noting
that he would not have time to do a section-by-section analysis.
He pointed out that every provision in the bill provided
additional protection for fish and fish habitat. The Fishway
Act was updated to repeal a loophole. For example, the loophole
would allow a permittee to establish a hatchery below the
blockage or to pay money to establish or enhance an offsite
hatchery instead of providing for fish passage. This bill added
a two-tier permitting system, including a provision that allows
"minor" permits to be issued immediately. Major permits would
be afforded more scrutiny and allow the public to become
completely involved in every step of the process. Further, the
public can review the department's reasoning and scientific data
used in on determinations, he said, as well as have an
opportunity to challenge or comment on a project. The bill
would also add the authority for ADF&G to bond for projects, and
it expanded enforcement authority for violations and for
biologists to issue violations in the field.
11:21:48 AM
MR. GRUENING continued to summarize HB 199. He stated that the
bill would establish criteria the ADF&G commissioner must
consider and publish when issuing a determination for
considering adverse effects on anadromous fish and fish habitat.
Further, the bill would establish a process by which mitigation
measures must be taken.
MR. GRUENING reiterated that everything in the bill would
increase protections for fish. He opined that although the bill
may not contain everything that everyone wanted, it was a
reasonable product that allows responsible development to move
forward.
MR. GRUENING stated that the bill would place an amazing amount
of scrutiny on a process that does not currently exist, he said.
Most importantly, this bill would provide for public engagement
of Alaskans in the process, which is very important to the
sponsor, he said. He recalled that the public involvement in
the process was important to the Board of Fisheries (BOF), other
state agencies, and industry participants. Most parties believe
that Alaskans deserve to be informed and be involved in
projects.
11:22:53 AM
CHAIR STUTES remarked that she was happy with the bill. She
advised that HB 199, Version I, was still a working document.
She concurred with Mr. Gruening that HB 199 [Version I] would
provide additional protection for Alaska's fisheries. She
acknowledged that [Version I] was not as restrictive for
economic development as the previous version [Version N], which
would have prevented the proposed Cordova hydroelectric dam
[Power Creek hydroelectric plant] from moving forward. It would
also have prevented the expansion of the Terror Lake
hydroelectric project in Kodiak. She emphasized that the state
needs these projects.
11:24:30 AM
REPRESENTATIVE EDGMON asked for definition of major and minor
permits.
MR. GRUENING answered that it was not 100 percent prescriptive.
He responded that a minor permit is one that the commissioner
determined would not cause adverse effects whereas a major
permit is one that the commissioner has determined has the
potential to cause adverse effects. The bill further details
the criteria that the commissioner must consider when making the
determination and the public process.
11:25:46 AM
REPRESENTATIVE EDGMON acknowledged that he was still struggling
with the thresholds under AS 16. He was unsure how the bill
would handle conflicting viewpoints by agencies. He was not
clear if the ADF&G would have a subservient role to other
agencies in development projects. He said he did not want a
discussion on AS 38; however, he did want to strike that fine
balance between being overly prescriptive while still providing
necessary protections the bill attempts to achieve.
MR. GRUENING acknowledged his point. He advised that currently,
and in HB 199 [Version I], the commissioner [ADF&G] has the
ultimate authority over whether Title 16 permits are issued for
anadromous fish habitat. In instances in which a Title 16
permit would be part of a larger project, such as a National
Environmental Policy Act of 1969 (NEPA) or a US Army Corps of
Engineers (USACE) project, the ADF&G commissioner would not make
the final decision on whether a project will move forward.
11:28:11 AM
CHAIR STUTES explained that ADF&G has authority to withhold
permits. She offered her belief that in instances in which a
Title 16 permit was necessary that if the department withheld
the permit, it would effectively prevent a project from moving
forward.
MR. GRUENING agreed. He clarified that if the ADF&G did not
issue a permit for activity on anadromous fish or fish habitat
was required, that activity could not go forward. He deferred
to Mr. Benkert.
MR. BENKERT responded that the ADF&G uses a collaborative effort
and process when the department works with other state and
federal agencies. The department coordinates with other
agencies on what permits will be issued. He agreed that if the
ADF&G did not issue a permit then the applicant must figure out
how to move the project forward without affecting fish habitat,
he said. He stated that not issuing the permit would not kill a
project, but the applicant may need to restructure the project,
so it did not require a permit.
11:30:48 AM
REPRESENTATIVE NEUMAN requested that staff familiar with the
ADF&G and DNR permitting process be present to discuss the
current process and how it changed [under the bill].
11:31:21 AM
REPRESENTATIVE TARR asked for the timeframe for the comment
period and whether it was for 30 days as for many other public
comment periods.
MR. GRUENING answered that the public comment period was for 30
days.
11:31:41 AM
REPRESENTATIVE TARR complimented the sponsor. She offered her
belief that Version I was an improvement. She acknowledged that
Title 16 has not really been updated since statehood. She said
she appreciated all the time that her staff spent on the bill.
She said it was a big step forward to have the public comment
component in the bill, so Alaskans can be more engaged and feel
like they have an opportunity to weigh in on projects with their
concerns.
11:32:16 AM
CHAIR STUTES commended the work her staff, Mr. Gruening, put
into working on the issues in the bill and in explaining the
changes in bill versions for the committee.
11:32:32 AM
CHAIR STUTES announced that she would be setting this bill
aside.
[HB 199 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 199 ver N 01.19.18.pdf |
HFSH 4/3/2018 10:00:00 AM |
HB 199 |
| HB 199 Explanation of Changes version N to I 04.02.18.pdf |
HFSH 4/3/2018 10:00:00 AM |
HB 199 |
| HB 199 Sectional Analysis ver I 04.02.18.pdf |
HFSH 4/3/2018 10:00:00 AM |
HB 199 |
| HB 199 ver I 03.30.18.pdf |
HFSH 4/3/2018 10:00:00 AM |
HB 199 |