Legislature(2017 - 2018)GRUENBERG 120
04/10/2018 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
10:01:45 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." [Version M was before the committee.]
10:03:08 AM
JOHN DUHAMEL, Member, Board of Directors, Alaska Power
Association., stated he also serves as the Chair or the
Hydropower Group, which represents most of the hydropower
projects in Alaska. He also serves as the Chief Executive
Officer (CEO) of the Copper Valley Electric. He has recently
undergone the licensing process to license a hydropower project
in Alaska, the Allison Creek Hydroelectric Project in Valdez.
10:04:10 AM
MR. DUHAMEL stated that HB 199 has admirable goals. The APA
understands the goals and the reasons for the bill; however, the
APA was concerned about unintended consequences. The unintended
consequences of HB 199 would be very detrimental to hydropower
and hydropower licensing and relicensing. He stated that there
were several small issues with the bill that he did not wish to
cover due to time constraints.
MR. DUHAMEL focused his comments on three main points. First,
if HB 199 had been in place when CVEA built the Solomon Gulch
Hydroelectric Project, the project would never have moved
forward with the requirement of a fishway passage. He related
that when the project was underway in the late 70s, the CVEA
stopped several salmon fishways in a small inlet for the sake of
building the hydroelectric project, with an estimated 300 salmon
impacted. The project provided a steady flow of water year-
round, which allowed Valdez to build a hatchery plus that
hatchery provides 300 million salmon to the area. Although the
bill has provisions for mitigation allowances, there seemed to
be a conflict between the fishway requirement and the mitigation
part
10:07:05 AM
MR. DUHAMEL turned to his second point; that these processes are
already in place. As previously mentioned, CVEA just underwent
licensing process for Allison Creek Hydroelectric, a small 6.5-
megawatt project and all the requirements for protections to
anadromous fish were included in the process. In fact, the
process was so laborious, it took CVEA five years to obtain a
license to build the project, he said. He estimated the cost
for licensure was $7 million. He predicted that it would add
significant time and cost to the licensing process if HB 199
passes because it would add another layer of requirements into
the current process.
MR. DUHAMEL stated his third point was that HB 199 tended to
oppose US Senator Murkowski's efforts to introduce an energy
bill that would streamline hydroelectric licensing. US Senator
Murkowski's proposed energy bill would require consolidation of
those reviewing and reducing layers for the licensing request
and would speed up the timeline. This bill, HB 199, would have
the opposite effect since it would add layers to the licensing
process and does not consolidate reviewers and instead expands
the number of reviewers.
MR. DUHAMEL, in conclusion, said that APA appreciated the
efforts and goals of the bill but have concerns about unintended
consequences.
10:09:48 AM
ROBIN SAMUELSEN thanked the committee for taking time to hear HB
199. He said he was a lifelong Alaskan from Dillingham. He has
worked as a commercial fisherman for 50 years. He now trains
his grandsons to reap the benefits of Alaska's salmon industry,
he said. He offered his belief that Alaska became a state to
outlaw fish traps, which were devastating Alaska's communities
and killing off salmon runs that had previously thrived.
Alaskans voted and became a state.
MR. SAMUELSEN indicated the next fisheries issue was the high
seas drift net fishery that allowed Japan to fish, which
devasted the runs in Bristol Bay. He recalled as a child that
fisheries were shut down. He further recalled that Senator
Lyman Hoffman mounted an effort at the United Nations to ban
high seas driftnet fishing.
10:11:31 AM
MR. SAMUELSEN commented that after 60 years the current law
needed updating to address the changes that have occurred. He
said that although HB 199 does not go as far as it needed to go,
but he felt it was a step in the right direction. He expressed
concern that oil would not provide future revenues in the way
that salmon has. His grandfather, John W. Clark, was one of the
major investors in the first cannery in Bristol Bay and Lake
Clark is named after him. His family has been involved in this
fishery since the first day, he said. He offered his belief
that the only way to keep this run strong and healthy was to
provide protection for the salmon. He pointed out the
decimation of Lower 48 salmon runs.
MR. SAMUELSEN said he was not against mining or development, but
the state needs to take steps to ensure that companies coming to
Alaska to develop resources do so in a sound manner that does
not negatively impact salmon stocks, communities, and Alaskans.
He told members he previously served on the Alaska Board of
Fisheries for three years and on the North Pacific Fishery
Management Council (NPFMC) for nine years. He expressed his
frustration at not being able to solve problems due to the laws.
He offered his belief that this bill was not just about the
Pebble Mine but about protecting fish habitat in all Alaska,
including Ketchikan, Bethel, the Yukon River area. Alaskans
depend upon salmon for sustenance, that it was intertwined with
their culture so removing salmon from their diet will kill
people in rural Alaska, he said.
10:14:30 AM
MR. SAMUELSEN advocated for protecting runs but not shutting
down industries. He emphasized making protecting fish habitat a
priority and still allow responsible development within the
regions. He thanked the committee.
10:15:00 AM
MIKE SATRE, Board Member, Council of Alaska Producers (CAP),
stated he was born and raised in Southeast Alaska and Juneau is
his home. He related that he has over twenty years of technical
and management experience in the mining industry. He said he
serves as the Government and Community Relations Manager for
Hecla Greens Creek Mine. He said he was speaking today on
behalf of the CAP, a non-profit trade association formed in
1992, that serves as a spokesperson for the large-metal mines
and major metal-developmental projects in the state. The CAP
brings together mining companies with interest in Alaska and
represent and informs members on legislative and regulatory
issues, supports and advances the mining industry, educates
members, the media, and the general public on mining related
issues and promotes economic opportunities and environmentally
sound mining practices.
10:16:00 AM
MR. SATRE reported that on April 10, 2017, the CAP sent a letter
to this committee in opposition to HB 199 because it was the
wrong solution to a non-existent problem. Exactly one year
later, the council maintains that this is the case, he said.
Alaska has a world-class permitting system that balances the
state's economy and the environment through the consistent
application of a rigorous science-based process. He remarked
that the system works and was a proven model for managing a
complex and constantly-evolving science behind habitat
management. When Alaska's system is coupled with the federal
protections contained within the National Environmental Policy
Act (NEPA), the Clean Water Act (CWA), the Endangered Species
Act (ESA), and Alaska National Interest Lands Conservation Act
(ANILCA), anadromous fish habitat in Alaska has protections that
are the envy of the world, he said. He stated with these
protections in place there was no need to introduce the complex
regulatory scheme contained within the current committee
substitute (CS) for HB 199.
10:17:00 AM
MR. SATRE commended Chair Stutes and her staff for responding to
concerns about the mining industry in the committee substitute
(CS) for HB 199. Without question, the previous versions of the
bill would have resulted in a complete shutdown of mining in
Alaska, he attested. The sponsor and staff should be commended
for taking the time to learn how mines are permitted and
operated as well as recognizing the importance of mines and
miners to the state. Their consideration of the CAPs concerns
and revising the bill in response represents the normal
legislative process and he commended their efforts.
10:17:33 AM
MR. SATRE remarked that after a detailed review of the new
committee substitute (CS) for HB 199, the council still has
significant concerns, including the designation of intermittent
waters as anadromous fish habitat, the lack of a clear
definition of wetlands, designating anadromous fish habitat, the
concept of a fish habitat permit assessment that unnecessarily
duplicates a federal environmental impact statement and the lack
of clarity on the use of mitigation for large permanent
structures that impact anadromous fish habitat. There were
multiple opportunities to litigate a single permit in the
proposed committee substitute (CS) for HB 199, he said.
10:18:08 AM
MR. SATRE noted that while the CAP does not object to the
concept of public notification in the fish habitat permit
process, it appeared as though the current scheme of comment,
decisions, and reconsiderations could result in significant
project delays. A public notification process should allow
sufficient time to address stakeholder concerns that were made
in good faith while still providing the project proponent a
transparent and predictable pathway to a permit. There was no
question that salmon and salmon habitat have cultural, emotional
and economic significance in Alaska like few other places. It
was not by magic or accident that Alaska has sustainably managed
its fisheries since statehood. The state's science-based
process built on a foundation of objective evidence and data has
proven itself year after year. While every process may need
some tweaks from time to time, there was not any proven need for
the introduction of a burdensome and complex bureaucracy that
discourages investment in Alaska. If specific targeted
improvements to Title 16 were necessary, such as the addition of
public notification, the council would look forward to
participating in that conversation. The CAP respectfully
maintains that HB 199 cannot be fixed, he said. He spoke in
opposition to moving this bill from committee.
10:19:42 AM
REPRESENTATIVE TARR recalled when the Hecla Greens Creek Mine
wanted to expand the tailings site that it required significant
public process, which seemed pretty positive. She offered the
idea that public process in the bill would provide an
opportunity for earlier discussion of issues, which might tend
to limit litigation later in the process. She asked whether
that could be beneficial to the company. She suggested one
common complaint by the public was that the public learned of
about proposed projects after they were authorized so the public
was left without the means to meaningfully participate. She
liked provisions in the bill that had the potential to make that
happen earlier.
MR. SATRE responded that the Greens Creek EIS [Environmental
Impact Statement] was an example of where public notification
and comment worked. He reminded members that the EIS process
does not issue a permit but simply identifies what the best
alternative to move forward to meet the public need and minimize
the impacts to the environment. He indicated that Hecla Greens
Creek did not get what it wanted in that EIS. The stakeholder
concerns were heard in the EIS, the mine was only allowed to go
forward and permit a limited footprint. He reiterated that this
was a great example of how the existing process worked to
minimize impacts to anadromous fish habitat, which was the key
concern in that EIS.
10:22:15 AM
REPRESENTATIVE TARR related her understanding that the projects
[in question under HB 199] would not really be ones with an EIS,
since that would be triggered with federal participation. She
said she used that as an analogy since the public participation
seemed similar. She asked whether he had some comments on that,
noting the benefits to resolving problems earlier in the process
since litigation can be a lengthy process.
MR. SATRE responded that the CAP's concern with HB 199 was that
it reaches state oversight into areas already covered through
Section 404 [Clean Water Act (CWA] permits that would generate
an EIS process. He pointed out that multiple permits were
necessary for projects with multiple analyses. Alaska
Department of Fish & Game (ADF&G), Department of Natural
Resources (DNR), Department of Environmental Conservation (DEC)
either have veto authority or are part of the permit review
process. He offered his belief that the system already works.
He expressed a willingness to have that conversation for any
Title 16 improvements in the future.
10:23:48 AM
CHAIR STUTES said she did not believe any public comment
provision was in the Title 16 permit process. She asked whether
he thought that would be valuable to the public.
MR. SATRE pointed out that the letter from the Board of
Fisheries certainly asked for public notification. The Council
of Alaska Producers believes that could be one of those tweaks
that could improve Title 16. He looked forward to some targeted
language that would allow for public notification of fish
habitat permits.
CHAIR STUTES thanked him for his testimony.
10:24:42 AM
WILL MAYO, Executive Director, Tribal Government and Client
Services, Tanana Chiefs Conference, said his traditional Native
name is Saanh Dlith Toh' which means "Summer Mountain Leader,"
and he is a tribal member of the Native village of Tanana on the
Yukon River, which heavily relies upon salmon. He said he would
speak today on behalf of the Tanana Chiefs Conference (TCC).
The Tanana Chiefs Conference was organized to advocate for its
tribes and consists of a consortium of 42 Interior tribal
communities, 37 of which are recognized by the US Constitution.
He provided the TCC's Native name "Dena' Nena' Henash" which
means "Our Land Speaks" and indicates the importance the
resources that were derived from its land. He said the TCC
region covers 235,000 square miles in Interior Alaska within
their traditional ancestral lands and serves about 14,000 Alaska
Natives in 39 villages.
10:27:04 AM
MR. MAYO stated that TCC was charged with advancing tribal self-
determination and enhancing Native regional unity. He said the
council's mission is to provide a unified voice in advancing
sovereign tribal governance through the promotion of physical
and mental wellness, education, social and economic development
and the culture of Interior Alaska Natives. Currently, the
TCC's 42 voting members of the full Board of Directors has two
standing resolutions that direct the advocacy on this subject.
Both resolutions support a rewrite of Title 16 that allows for
more protection of its food resources, which HB 199 would do, he
said. He related that HB 199 would create a two-tier permitting
system instead of big and small projects in one permit type.
MR. MAYO said that HB 199 would break down projects into two
categories: those that would adversely affect anadromous fish
and fish habitat and minor projects that would not affect fish
and fish habitat. The bill would also provide specific language
for consideration of effects of activity on anadromous fish and
fish habitat. Under HB 199, a project that would have the
potential to adversely affect these resources must meet a number
of specific criteria. He offered his belief that the proposed
criteria in HB 199 was a vast improvement over the current vague
criteria open to interpretation. Further, HB 199 would create a
public process, public notice for all permits and allows for a
30-day comment period for all major projects on a draft fish
habitat permit assessment. In addition, the commissioner must
provide a written determination allowing for public comment.
The public may also submit a timely request for reconsideration
if they disagree with the commissioner's determination.
10:29:50 AM
MR. MAYO outlined TCC's specific concerns with the proposed
committee substitute (CS) for HB 199 [Version M]. The amended
version deleted the language [Section 4, on page 3], "adjacent
riparian areas." The TCC supported inclusion of "adjacent
riparian areas," which could acknowledge the authority or
coordination with DNR for defining riparian habitat. Exclusion
of riparian areas would leave a critical area of the watershed
potentially not protected. This language would also help reduce
the risk of erosion and sedimentation, which otherwise could
smother and suffocate salmon eggs and reduce visibility for
rearing salmon to find food.
10:30:47 AM
MR. MAYO stated [Version M] also removed the phrase "presumption
of anadromy." The TCC supported including "presumption of
anadromy," for all waterways below a certain elevation to be
determined by the ADF&G's fisheries biologist. It would be
ideal if this was supported by peer review scientific literature
so that all waterways that may have salmon will receive proper
protection.
MR. MAYO outlined the TCC's last concern. He offered his belief
that the proposed CS for HB 199 [Version M] has significantly
weakened language for mitigation. He offered TCC's support for
the original language for mitigation as per statute, but for the
following areas and regions only, leaving the rest of the state
exempt:
1. Special areas or fishery reserves such as Bristol
Bay
2. Regions primarily dependent on and/or support
traditional subsistence fishing.
10:32:28 AM
KARA MORIARTY, President & Chief Executive Officer (CEO), Alaska
Oil and Gas Association (AOGA), introduced herself.
JOSH KINDRED, Environmental Counsel, Alaska Oil and Gas
Association (AOGA), introduced himself.
10:32:52 AM
MS. MORIARTY appreciated that the bill sponsor and staff has
recognized some concerns, but as with the mining industry, the
AOGA has some additional concerns with the bill. She welcomed
working with the committee on HB 199.
10:33:32 AM
MR. KINDRED stated his job was to review regulatory language for
AOGA, primarily to see that the effects of the oil and gas
industry were narrowly tailored to a legitimate environmental
aim. Through that lens he has analyzed HB 199 [Version M] and
found it would result in substantial negative actions for the
state from the public or private sector. This comes at a time
when the state has been struggling to manage its fiscal
challenges and the economy could best be described as stagnant.
He said that was a heavy cost to pay, but when evaluated for
benefits the fundamental flaws in HB 199 can be seen.
MR. KINDRED offered his belief that the bill assumed that salmon
were not currently being protected in Alaska. As some previous
testifiers have indicated, nothing could be further from the
truth. The bill "seems to be a solution in search of a
problem," he said. He wondered if was prudent to move forward
with HB 199 since the bill would actually result in harm to the
state. He offered to cover some of the specific provisions.
10:34:56 AM
MR. KINDRED referred to Section 4, on page 3, to "adjacent
riparian areas, which was replaced with "wetlands." He was
unsure of the catalyst for that modification. Wetlands comprise
175 million acres of Alaska and 43 percent of the state's
surface area and were already sufficiently protected through
federal jurisdiction. He offered his belief that this would be
a dramatic expansion of anadromous fish habitat, into areas that
do not have the scientific underpinnings to warrant that
designation. Further, any operator that has had to navigate a
Section 404(b) [Clean Water Act] permit would understand just
how sufficiently and thoroughly wetlands are protected in the
state.
10:35:52 AM
MR. KINDRED highlighted that the committee substitute (CS) for
HB 199 [Version M] removes the qualifier "significant" from
adverse effects in the distinction between major and minor
permits. That would effectively make sure that any resource
project would need to go through the major permitting process,
he said. He suggested that process was laborious and would
result in delays, which may not be warranted since the project
may have nominal adverse effects and should not rise to the
level of major permits.
MR. KINDRED highlighted one of the biggest issues he had with HB
199 was that "this is fodder for litigation." He acknowledged
that this was not the intent of HB 199; however, he thought the
bill created unintended consequences. As he read through the
bill, he said he identified four different opportunities for
litigation for every single permit that goes forward. He
suggested that a major resource development project could have
dozens of permits. This bill could multiply the opportunities
for litigation. He highlighted the opportunities for litigation
in the bill, including the point when the commissioner makes the
distinction between a major or minor permit, when the draft
assessment was made, when the bond assessment was determined,
and when the final permit assessment was issued.
10:37:07 AM
MR. KINDRED cautioned that this not only added additional costs,
delays, and uncertainty on projects, but it would also add
additional costs to the state. It was important to recognize
that regulations could be manipulated to serve ideological ends.
He stated he reviewed these provisions through the prism of how
a special interest group could use this bill for its own
purposes. The AOGA has seen litigation, more than anything
else, used to stop development projects in Alaska, he said. He
hoped the committee would keep this in mind. He further said
that the [state] should be looking for ways to streamline
resource management.
10:37:55 AM
MR. KINDRED said he did not know much about anadromous fish
habitat a year ago, but he researched it. He discovered the
public narrative was such that the state needed to strive to
protect salmon. Instead, he discovered how exemplary ADF&G has
been at protecting salmon since statehood. He has spoken on
numerous panels and debated proponents of HB 199 or the Stand
for Salmon initiative; however, he has not heard any examples in
which the current regulatory rubric failed to protect salmon.
He encouraged members to proceed cautiously when moving forward
with regulations that would adversely affect the state that are
not necessary.
10:39:02 AM
CHAIR STUTES recessed to a call of the chair.
1:04:25 PM
CHAIR STUTES reconvened the meeting [but did not note the
members who were present.]
1:04:50 PM
WILLIAM "BILL" BROWN, PhD, stated he has lived in Juneau since
1992. He said he was an avid fisherman. He was appointed to
the Board of Fisheries by former Governor Sarah Palin and
reappointed by former Governor Parnell; however, he said he no
longer serves on the board. He holds a PhD in economics and
taught fulltime at the university level for 23 years. Among the
courses he taught was Resource and Environmental Economics, a
course that contained a section on fisheries economics, he said.
When he left the university in 2000, he opened the only fishing
reel repair shop in Southeast Alaska. He has serviced more than
1,000 reels per year and the best part about it was that he has
conversations with fishermen almost every day.
1:05:46 PM
DR. BROWN asked to make two brief points in his support for HB
199 [Version M]. First, he acknowledged that everyone in the
room recognized the importance of salmon for the people and
economy of the state. Sadly, he suspected that people also
recognized that many, if not most, of the salmon runs in Alaska
were in trouble. This was especially true in Southeast Alaska,
where the king salmon harvest has just been closed for the
spring, like it was last spring. He predicted it would likely
be closed next year.
DR. BROWN highlighted that concern for salmon was not new and
was discussed every year at every Board of Fisheries meeting he
attended during his tenure on the board. It has been a topic of
most of the customers who come by his shop, he said. He
indicated that no one was sure what was causing the problem with
salmon. Several things have been suggested, including high-seas
interception by foreign fishermen, warming ocean temperatures,
bycatch in the Gulf of Alaska, overharvest and damage to the
rivers and spawning areas. The BOF and ADF&G have long been
trying to help Alaska's salmon, but the results have not been
good. Both the numbers and size of salmon have been shrinking
and the state needs to do more.
1:07:13 PM
DR. BROWN outlined the aim of HB 199 was to carefully monitor
salmon rivers and spawning areas to make sure that economic
development does not damage Alaska's salmon stocks. In its
current form [Version M], HB 199 was a good start, but he would
like to see minor changes to strengthen the bill. First, it was
vital that ADF&G have the ability to protect riparian zones to
create mandatory and enforceable standards for fish habitat
protection. Second, the bill should have stronger mitigation
standards to allow ADF&G to rule against major projects like
Pebble Mine that would cause substantial damage to salmon runs.
Third, the ADF&G needed to have broader authority to protect
fish habitat throughout the entire state. He related his
understanding that currently the authority extends to barely
half of the salmon streams in the state.
DR. BROWN identified himself as a market economist who does not
like regulations and believes that economic incentives should be
left alone whenever possible; however, he also acknowledged that
some regulations were probably necessary. The regulations
embodied in HB 199, along with his suggestions, were necessary,
he said. They would do a small part to stave off the collapse
of Alaska's salmon stocks. He cautioned that it would not solve
the problem entirely, but it was one important step and he was
certain it would help.
DR. BROWN turned to his second main point, which he said relied
upon economic analysis and a bit of mathematical reasoning. As
he sees it, the main arguments against HB 199 come from the
mining industry. He remarked that he was not opposed to mining
and completely understood the need for copper, gold, silver, and
other metals mined in Alaska. He also understood that mining
generates considerable income and lots of jobs in the state, but
so does fishing. When salmon stocks or salmon forecasts were
down, income declines ripple throughout the entire state.
DR. BROWN said, "Believe me. Traffic in my reel repair shop was
down over 40 percent last year and looks to be as bad this year,
as well." Still, he doubted he was being hurt as much as salmon
trollers in Southeast Alaska or the small communities that rely
exclusively on fishing. He highlighted the cost of fewer mining
jobs and mining income versus the benefits of more salmon and
salmon income from HB 199. He cautioned that the [legislature]
would be making a mistake if it only considered the "short run."
He indicated that the problem was a dynamic one and happens over
a long period of time.
1:09:52 PM
DR. BROWN, in closing, summarized his view of the issue. He
remarked, as follows:
To me the issue is this, in the best of conditions, a
mine be worked until it is exhausted and closed down,
but our salmon will last forever if we manage them
correctly. Forever. We can do that. Our
grandchildren and their children deserve to grow up
with Alaska wild salmon as an integral part of their
identity, as it is ours today. HB 199 is a small step
toward that end. Thank you.
1:11:33 PM
EMILY ANDERSON, Attorney; Alaska Program Director, Wild Salmon
Center, stated she was an attorney who specialized in the areas
of natural resource and water law for 14 years in Alaska. She
thanked the committee and bill sponsor for taking on this really
difficult task of tackling a critical update to one of Alaska's
most important laws to protect fisheries. She offered her
belief that this task was long overdue. The Anadromous Fish
Act, also known as the fish habitat permitting law was enacted
shortly after statehood and has not changed much since then.
MS. ANDERSON provided background information, noting that the
Alaska Constitution has three provisions which specifically
address salmon and other renewable resources. She referred to
Article VIII, Section 3. Common Use, which read as follows
[original punctuation provided]:
Wherever occurring in their natural state, fish,
wildlife, and waters are reserved to the people for
common use.
1:12:46 PM
MS. ANDERSON said secondly, it also directed the state to
sustainably utilize, manage, and maintain Alaska's fisheries and
renewable resources [under Section 4], which read as follows
[original punctuation provided]:
Section 4. Sustained Yield
Fish, forests, wildlife, grasslands, and all other
replenishable resources belonging to the State shall
be utilized, developed, and maintained on the
sustained yield principle, subject to preferences
among beneficial uses.
1:12:52 PM
MS. ANDERSON said third, it also directed the legislature, most
importantly, to equally prioritize and balance the conservation
of Alaska's natural resources with the state's interests in
utilization and development of them [ under Section 2] which
read as follows [original punctuation provided]:
Section 2. General Authority
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.
MS. ANDERSON said that the key point was to find a balance
between these two pieces.
1:13:08 PM
MS. ANDERSON stated that these constitutional directives serve
as the foundation for the standard of care when managing
Alaska's salmon resources, including the role of the Board of
Fisheries, the Alaska Department of Fish & Game (ADF&G) in
fisheries allocation decisions and managing sustainable harvest.
It also should serve as a guide in terms of the decisions about
how Alaska protects its fish habitat and as a guide for the
legislature. She added that included ensuring that its laws
used a balanced approach.
MS. ANDERSON reiterated that [Title 16] was outdated and
general. The commissioner would issue a permit unless the plans
and specifications were insufficient for the proper protection
of fish and game; however, nothing in regulations or in statute
indicates what that means. She characterized it as a general
approach for a very important law. The current law does not
provide certainty or accountability in the system to ensure that
from administration to administration that the law would be
applied consistently. Currently, Alaskans have been completely
excluded from the permitting process.
1:14:24 PM
MS. ANDERSON recalled a few weeks ago, the ADF&G testified as to
the challenges it faced under the current system. Those
included a lack of enforcement authority, the need to implement
"work arounds" to assert jurisdiction and apply this law, as
well as a lack of overall standards. She did not wish to
criticize what ADF&G does with respect to fish habitat but
rather to highlight the problem, which was that the current law
is "a far cry" from a rigorous permitting process. He cautioned
that the state cannot jeopardize its healthy fisheries, that the
status quo is simply no longer an option.
MS. ANDERSON turned to HB 199, which she characterized as an
important step in the right direction. She acknowledged
numerous previous attempts in the 1980s and 1990s to change the
law and/or create regulations based on arguments similar to ones
the committee has heard today. She offered her belief that HB
199 would build a solid foundation necessary to make sound and
transparent decisions, including public notice on all permits -
the cornerstone of a good permitting system - and the
opportunity for public participation in decisions that could
damage Alaska's fisheries. It would fairly balance
administrative efficiency through the minor permit process yet
provide additional review of major projects. Finally, HB 199
would add some new tools for permit enforcement and judicial
review to ensure accountability in the system.
1:16:32 PM
MS. ANDERSON offered her belief that this bill was a vast
improvement over the current law. She encouraged the committee
to consider adding enforceable habitat protection standards to
add substance with science-based standards.
MS. ANDERSON said she has often heard the question, "Show us the
problem" and reasons the system needed be fixed. In 1996, ADF&G
published an article titled, "Can Alaska Balance Economic Growth
with Habitat Protection? - A Biologist's Perspective" [by
Kenneth E. Tarbox and Terry Bendock.] This conversation has
been ongoing, she said. The authors tackled that very question
using the Pacific Northwest as an example. She read:
In the Pacific Northwest declining salmon populations
have coincided with resource uses incompatible with
sustainable management of the whole ecosystem (NRC
1996).
Declines in salmon production due to habitat loss are
masked and hard to detect relative to the timeframe of
institutional decision-making. The failure of
institutions to adequately protect the resources over
the rights of the entrepreneur is predictable because
it is usually politically easier to favor economic
growth over conservation. And by the time the
affected natural resources have collapsed, the
original policymakers are usually gone, leaving a
fresh group of policymakers to respond to the public
outcry and bring back these lost resources.
MS. ANDERSON related that in time, as demonstrated by the
billions that were being invested in the Pacific Northwest, with
absolutely no measurable gains in the condition of those salmon
runs, it becomes too late.
MS. ANDERSON offered her belief that the state has a great
opportunity to "get it right." The state has seen declines in
salmon productivity, especially in hard hit areas like the Mat-
Su Valley, in part, due to habitat loss. The ADF&G has
testified its recognition that habitat was no longer accessible
and was causing some of the decline for the fisheries. She
urged members to continue the conversation. In response to
Representative Tarr, she offered to provide a copy of the
article to the committee.
1:19:45 PM
JOHN MACKINNON, Executive Director, Associated General
Contractors of Alaska (AGC), stated that AGC is a construction
trade association representing over 640 contractors, specialty
contractors, suppliers and manufacturers in Alaska who employ
tens of thousands on a seasonal and fulltime basis in Alaska.
Within its membership was much of Alaska's commercial and
industrial construction industries. Their motto is "We build
Alaska," he said. The Institute of Social and Economic Research
(ISER) at the University of Alaska reported that the
construction trade in Alaska was the third largest industry
paying the third highest wages and employing over 15,000 workers
and contributing $6.6 billion to the economy. These figures
were even after a 20 percent reduction in the construction
economy, he said.
1:20:42 PM
MR. MACKINNON offered comments on the proposed committee
substitute (CS) for HB 199, Version M, after first thanking the
committee for the significant changes made to the bill. He said
the AGC found Version M was more palatable than the original
bill, but he still questioned the need for the bill. He related
that he served as the Deputy Commissioner of the Department of
Transportation & Public Facilities (DOT&PF) for five years prior
to taking the job at AGC. He said that at DOT&PF he was
responsible for the highway program, which included DOT&PF's
administration, planning, design, and permitting. Permitting
represents a significant cost-driver of projects. In 1970,
nearly 90 percent of every project dollar went as a payment to a
contractor, but today it is less than 70 percent. The 20
percent difference was for process and permits, he said. He
acknowledged that process and permits were not all bad, but some
of the process provided little value.
1:21:40 PM
MR. MACKINNON stated he has reviewed the documents in the bill
file [for HB 199] and submissions from Federal Energy Regulatory
Commission (FERC), DOT&PF, DNR, and DEC. The amount of process
and procedure the agencies detailed under current law was
extraordinary. The processes all contribute to the well-managed
resources and habitat in Alaska. Although the Anadromous Fish
Act (AFA) may not have been changed since statehood, there were
dozens of other state and federal laws that have added to the
protections in the AFA. He offered his belief that adding
another layer of review would not provide any added value to the
resource and instead could cause additional delay and cost to
almost all projects - public and private.
1:22:15 PM
MR. MACKINNON offered his belief that the problem was no longer
getting funding for projects but obtaining permission. Some may
consider the impetus for this bill the letter of January 2017
from the Board of Fisheries. In it the BOF requested the
[legislature] improve public comment and notification and
enforceable standards; however, these could all be done by
regulation and not by statute.
1:22:39 PM
MR. MACKINNON said that AGC has recognized the importance of
fish as a subsistence, sport, and commercial resource for
Alaska; however, it was not clear how HB 199 [Version M] would
improve on this critical resource. There did not appear to be
any scientific analysis behind this legislation, he remarked.
Further, Alaska does not have a real problem with development
causing loss of fish habitat that impact salmon returns. He
could not think of instances where recent decreases in
anadromous fish populations were the result of local activities
other than overfishing. Overfishing was a management and
political problem and not a statutory problem. He acknowledged
that there were many potential contributing factors to poor
returns such as bycatch, offshore harvest, predation, or changes
in ocean conditions.
1:23:33 PM
MR. MACKINNON expressed concern that HB 199 would add another
layer to the process and endanger Alaskan jobs and threaten any
expansion to the state's limited transportation infrastructure
pipelines and hydroelectric projects. It could also restrict
opportunities for Alaska communities to grow and prosper. In
closing, he said that in the development of Alaska's resources,
the state does not need to choose between resources, but how to
manage among all resources.
1:24:05 PM
REPRESENTATIVE TARR said some testifiers have indicated that
this bill was not needed, but to play "devil's advocate" that if
everything is being done right then there should not be any fear
of the additional public process built into it or any opposition
from the public. She asked for his thoughts.
MR. MACKINNON responded that it would add an additional layer.
He stated that everything was being done right with the current
permitting process, so he did not see the need for an additional
layer.
1:25:04 PM
MARLEANNA HALL, Executive Director, Resource Development Council
for Alaska, Inc. (RDC), stated she was a lifelong Alaskan
originally from Nome. She related that RDC was a statewide
business association comprised of individuals and companies from
Alaska's oil and gas, mining, forest products, tourism and
fisheries industries. The RDC's membership included 12
landowning Alaska Native corporations, local communities,
organized labor, and industry support firms and individuals
throughout Alaska.
1:25:56 PM
MS. HALL offered to address the broader concerns of the
committee substitute (CS) for HB 199 [Version M]. She stated
that increasing uncertainty and adding unnecessary regulatory
burdens to community and resource development projects across
Alaska with little to no added benefit to salmon habitat was not
sound policy. This bill would likely delay or even halt
projects and increase costs for Alaska's communities and the
private sector and send Alaska further down the regulatory
certainty scale.
1:26:36 PM
MS. HALL said the RDC's member companies who testified today
gave specific examples of the anticipated detrimental effects of
the proposed bill, such as new delays, unnecessary permits, and
requirements for permitting wetlands. The proposed bill would
create new opportunities for litigation and permit challenges
and more, she said. She asked why this bill was necessary and
if the bill sponsors could give an example of how the existing
permitting process has failed. Many testifiers spoke to the
lack of king salmon and the size of salmon but have failed to
give an example of how these drastic changes to Title 16 would
help or to explain how Title 16 has failed.
1:27:21 PM
MS. HALL suggested that the idea that Alaska's fish habitat was
not being protected is very misleading. Alaska has some of the
best managed fisheries in the world and each one of us has a
stake in maintaining that reputation, she said. The proposed
committee substitute (CS) for HB 199 would not provide a
productive, balanced process that will allow Alaskans to live
their way of life and coexist with the environment, including
fish, she said. The added costs for projects throughout the
state would not just impact businesses, but also communities and
everyday Alaskans. The state has already provided protection
for its fish habitat, so it did not seem necessary to go so far
to negatively impact the way of life for all Alaskans.
1:28:04 PM
MS. HALL offered her belief that whether or not Alaskans support
the bill, they want to protect salmon and other species for
generations to come. She stated that all Alaskans, including
the indigenous people who have lived in this land for thousands
of years, have a stake in protecting fish habitat. She
remarked, "We are all here today because we love this place. We
love our way of life."
MS. HALL said it was clear and proven that community and
resource development can coexist with the environment in this
great state. Alaska has permitted large projects, such as the
Trans-Alaska Pipeline system and six major producing mines as
well as expanding vital transportation infrastructure without
harming its fisheries. She stated that Alaska's existing
permitting system has worked well and has protected its fish.
1:28:49 PM
MS. HALL hoped updates to Title 16 would focus on the effort to
address the specific areas that need to be updated: public
comment and consequences for failing to comply with a permit.
This may have been the sponsor's intention; however, the RDC
believes this bill goes way beyond that and would damage
Alaska's communities, jobs, and economy as well as Alaskans way
of life.
MS. HALL, in closing, stated that this bill would negatively
impact community and resource development, including improving
the limited amount of infrastructure Alaska has across the state
and well as much needed new infrastructure. The RDC has looked
to existing projects developed with Title 16 permits to show
that the state can and does protect its fish habitat. For
example, fish habitat has been protected at fish processing
facilities at the mouth of a river in Southwest Alaska, the
Ketchikan airport, activities at Prudhoe Bay and Interior Alaska
roads, she said.
1:30:01 PM
REPRESENTATIVE TARR offered her belief that the statements being
made seemed somewhat inconsistent. She suggested that stating
that everything worked just fine, and development has done a
good job; then to proclaim that the bill would cause unnecessary
delay and cost for projects. She said that those two things are
mutually exclusive because if everything was being done right
having an additional layer of public participation should not
result in any challenges to permits. She argued that the only
instance for a delay would be when the public had questions over
issues that arose during the permitting process. She
characterized these as mutually exclusive events.
MS HALL suggested that Representative Tarr was presuming that if
[the permitting process] went well that the public and
stakeholders in Alaska or the Lower 48 would not question or
appeal permits. She offered her belief that was a false
assumption that there would not be numerous appeals under the
permitting process in the proposed bill. She recalled Mr.
Kindred's testimony from the AOGA, which spoke to the increased
number of opportunities to appeal. Not only would HB 199
increase the opportunity to appeal but it would increase the
opportunities exponentially, she said. She could not think of
any project permitted without public participation. She agreed
public noticing was something that should be considered in the
Title 16 permitting process, which the BOF requested; however,
this bill goes way beyond that simple request.
1:32:41 PM
REPRESENTATIVE TARR said she reviewed the four things Mr.
Kindred mentioned, including that a potential appeal could occur
when the commissioner distinguished between a major and minor
permit. Since 80 percent would be minor permits, it was not as
concerning to her, she said. Although the draft assessment and
bond assessment process might not be well understood at first,
but she anticipated some rhythm or tradition for bonding would
occur. She recalled another potential litigation point was for
the final permit. She argued that all of these [appeal points]
have timelines associated with them; however, none were very
lengthy. The BOF suggested that the state should increase
opportunities for public process. Further, the resource
development industry has been successful in Alaska getting
statutes instituted that requires litigants must pay for any
damages - a real disincentive to bring forward frivolous
lawsuits. She offered her belief that the industry currently
has many protections. She argued that it was time for the
public to have opportunities to weigh in.
1:34:15 PM
REPRESENTATIVE TARR argued that development at Chester Creek has
adversely affected salmon habitat by allowing invasive species
to take over in the riparian zone adjacent to the stream. She
cautioned that Alaska does not want to follow the Pacific
Northwest's demise of salmon runs. She indicated this was a
critical time to evaluate these issues. The bill has been
scaled back significantly and its provisions seemed reasonable,
she said.
1:35:33 PM
BRIAN KRAFT, Owner, Alaska Sportsman's Lodge; Bristol Bay Lodge,
speaking on behalf of himself, said he is the owner of Alaska
Sportsman's Lodge on the Kvichak River near Lake Iliamna as well
as Bristol Bay Lodge located on Lake Aleknagik and serves as the
President of Katmai Service Providers, a trade organization
representing 50 businesses that operate in Katmai National Park
and Preserve. He stated that he has been in business since
1992.
MR. KRAFT offered provide a broad view of the bill in terms of
what the lodge industry would like to see. He stated that he
began his opposition to the Pebble Mine in 2004 when he created
the Bristol Bay Alliance to educate those who wanted to learn
about resource development in areas with sensitive fish habitat
where salmon would be at risk. He has been intimately involved
in the fight to protect Alaska's salmon. He offered his belief
that the state has sat idly for years while fisheries have been
adversely impacted by many factors, including proposed massive
megaprojects that could destroy productive fish habitat.
1:37:32 PM
MR. KRAFT remarked that it was no wonder why Alaskans sought
help from the federal government. He hoped the legislature
would create a law that would adequately protect fish habitat
and yet allow industrial activities such as oil and gas
development on the North Slope to continue. It seemed so
obvious that protecting fish habitat is necessary. Projects
should not be permitted if the proposed project operational
plans indicate it will destroy fish habitat. He urged the
committee to recognize the sport fishing industry as an industry
and business.
1:38:31 PM
MR. KRAFT said he has heard testifiers say that the business
community was opposed to HB 199; however, his industry generates
approximately $1.4 billion annually in the state. It has
supported 15,000 jobs statewide and depends upon intact fish
habitat and healthy fisheries. His industry depends on the
state to properly protect fish and game as mandated by Alaska's
Constitution. He acknowledged that what was obvious to him
might not be so clear to others since for them it might mean
that destroying, diverting or obstructing a river was alright so
long as the habitat is restored once the extraction process was
completed.
MR. KRAFT offered his belief that outdated laws were vague and
subject to interpretation and political will. He related his
understanding that prior to statehood the territory could simply
require the proper protection of fish and game. Salmon has been
such an integral part of the fabric in Alaska and it still is
today. Alaska's fisheries differentiate it from other western
states and the Pacific Northwest where agriculture, overfishing,
infrastructure, logging, dams, mining and a lack of willingness
to enact laws to protect their fish habitat has led to an epic
crash and failure of their fisheries.
1:40:26 PM
MR. KRAFT offered his belief that HB 199 would add certainty and
clarity to the permitting process and take out the political
will from the process. He understood the bill was introduced at
the request of the BOF; the experts of fish and fish habitat. A
permit was just issued last month for a bridge to be built
across upper or lower [indisc.] creek and the upper reaches of
it. He said this was a small creek in Southwest Alaska that was
home to massive amounts of spawning sockeye salmon and world-
renowned rainbow trout. Yet this bridge was permitted through
the ADF&G without any public notice or notification to anyone in
the industry until after it was issued, he said. He
acknowledged that HB 199 was not perfect, but the committee has
worked on it for two years, that it was time to move the bill
out of committee and have the process continue.
1:41:48 PM
DANIEL SCHINDLER, PhD; Professor, Fisheries and Aquatic
Sciences, University of Washington, paraphrased from his written
comments, which read as follows [original punctuation provided]:
Thank you for this opportunity to comment today. My
name is Daniel Schindler; I am a professor of
fisheries and aquatic sciences at the University of
Washington. I have worked extensively on salmon
fisheries in western Alaska for over 20 years, and our
research program at UW has performed research on
Alaskan salmon and their habitat since the late 1940s.
My comments today derive from this collective
experience which sheds light on what is unique about
Alaskan fisheries and fish habitat, compared to the
situation we have here in the lower 48 states.
It is gratifying to see that Alaska is finally having
a serious conversation about the adequacy of its
current laws to protect habitat for fish and wildlife
throughout the state. There are few places left in the
world where the connections between people and the
land-and-water are as real as they are in Alaska.
Commercial, subsistence, and sport fisheries have been
sustained for decades to millennia, and there is no
reason to believe that these activities and the
economies and cultures they support will not continue
into the future but only if we provide adequate
habitat protection and maintain responsible
management.
1:43:22 PM
DR. SCHINDLER continued paraphrasing from his written comments,
which read as follows [original punctuation provided]:
The primary reason that Alaska's rivers and lakes are
so productive is because the habitat is largely
undeveloped, vast, and diverse. Current regulations
are intended to protect the most important habitat for
fish and wildlife, but what we have learned after
decades of study in western Alaska, is that it is
extremely difficult to identify what is critical
habitat and what isn't. Some tributaries may be
unproductive for decades while other tributaries
produce most of the fish, and then suddenly the
importance of these tributaries can switch.
Tributaries can flip back and forth between being
important and sitting somewhat dormant, and then back
again. So, what makes Alaska's rivers so productive
and reliable is that the full complement of habitat
remains present. The diversity of habitat stabilizes
the overall productivity and reliability of these
systems. Eroding this diversity of habitat, that could
happen with inadequate protection, runs the distinct
risk of making fisheries much less productive and
reliable in the future.
1:44:40 PM
DR. SCHINDLER continued paraphrasing from his written
comments, which read as follows [original punctuation
provided]:
I could go on at length about the ecological and
environmental reasons for strengthening protection for
fish and wildlife in Alaska. However I am sure that
many of the voices you have heard from with serious
reservations about this bill have made their arguments
in economic terms. Thus, it is important to reflect on
what the economic value of intact habitat might be.
Using Bristol Bay sockeye salmon as an example, the
economic value of this fishery has been estimated at
over $1.5 Billion per year. A large fraction of this
revenue remains in-state. What is not widely
appreciated is that the total amount of expenditures
supporting research and management is less than a
couple million dollars per year. So, hundreds-of-
thousands of dollars of revenue are generated for
every dollar spent on research and management. This is
a remarkable return-on-investment by any standard, and
it is only possible because of the quality of the
habitat that produces fish. Sustainable management of
fisheries in Alaska by the Alaska Dept of Fish and
Game is the envy of the world in many regards but
productive and intact habitat is what makes this
sustainable management even possible!
1:46:07 PM
DR. SCHINDLER continued paraphrasing from his written
comments, which read as follows [original punctuation
provided]:
For comparison, let's look at the Columbia River here
in the Pacific Northwest. More than 500 million
dollars are spent every year on research, management,
restoration, mitigation, compensation, etc. These
funds are spent to make up for lost or degraded fish
habitat, particularly for salmon.
The value of fisheries in the Columbia is generously
estimated at a fraction of this investment; for every
dollar spent on research and management, less than a
single dollar of economic revenue is generated. That
giant sucking sound you may hear from the Pacific
Northwest is from all of the dollars being spent by
citizens and tax payers to try and prop up the
fisheries and habitat that we have turned our backs on
here.
1:47:11 PM
DR. SCHINDLER continued paraphrasing from his written
comments, which read as follows [original punctuation
provided]:
So how did we end up in this predicament here in the
Pacific Northwest? We made some assumptions about how
we could develop rivers for hydropower, agriculture,
urbanization, mining, forestry, etc., that have turned
out to be massive mistakes from which we are not
likely to recover from any time soon.
1:47:32 PM
DR. SCHINDLER continued paraphrasing from his written
comments, which read as follows [original punctuation
provided]:
In particular, we assumed that:
Fish habitat needs minimal protection
We also assumed that
large-scale restoration is possible in places
where habitat is degraded
And that
hatcheries can make up for destroyed habitat.
And last:
We didn't sufficiently protect habitat simply
because we assumed that we knew what we were doing.
Of course, we couldn't have been more wrong on
all accounts.
1:48:06 PM
DR. SCHINDLER continued paraphrasing from his written
comments, which read as follows [original punctuation
provided]:
There are many scientific, environmental, social, and
economic reasons to improve protection for fish and
wildlife habitat in Alaska. This is a remarkably wise
investment. It does not come at an economic cost as so
many tend to argue. Restoring and mitigating for lost
and degraded habitat is unfathomably expensive and
largely ineffective. Alaska is in the driver's seat
here to make decisions that the rest of the US made
dreadfully wrong. You have the opportunity to do it
right!
Thank you.
1:49:06 PM
KIM REITMEIER, Executive Director, ANCSA Regional Association,
stated she is a lifelong Alaskan originally from Kodiak. She
said that she serves as the President and Chief Executive
Officer (CEO) of the 12 land-based Alaska Native Regional
Corporations for the ANCSA [Alaska Native Claims Settlement Act]
Regional Association. The ANCSA Regional Association's mission
is to promote and foster the continued growth and economic
strength of the ANRCs on behalf of the more than 127,000 Alaska
Native shareholders.
MS. REITMEIER thanked the committee and staff for their efforts
to revise HB 199 into something more acceptable to the industry
and Alaskans. She acknowledged positive steps taken in the
proposed committee substitute (CS) for HB 199; however, the
ANCSA Regional Association still has significant concerns,
including the designation of intermittent waters as anadromous
fish habitat, the omission of a definition of wetlands and
designating anadromous fish habitat. Also, the lack of clarity
and use of mitigation for large permit structures that impact
those fish habitat and the multiple opportunities to litigate a
single permit. She noted that while the association does not
object to the concept of public notification in the fish habitat
permit process, it appeared as though the proposed structure of
comment, decisions and reconsiderations could result in
significant project delays.
1:51:04 PM
MS. REITMEIER stated a public notification process should allow
significant time to address stakeholder concerns made in good
faith while still providing the project proponent a transparent
and predictable pathway to a permit. This bill would negatively
impact Alaska's rural communities and the infrastructure
projects that are necessary to maintain their way of life.
1:51:27 PM
MS. REITMEIER stated that when updates to Title 16 occur, the
focus of that effort should be to address the specific areas
that need to be updated: public comment and consequences for
failing to apply for a permit. This may have been the sponsor's
intention but unfortunately this bill goes beyond that and could
damage Alaska's communities, economies, jobs, and way of life.
MS. REITMEIER stated that Alaska's Native people who have lived
here for tens of thousands of years know there is nothing more
important than the cultural and economic significance of salmon
and salmon habitat. Alaska has sustainably managed its
fisheries since statehood. She agreed there was room for
improvement. The unintended consequences of HB 199 would have a
negative impact on Alaska's communities for decades to come. In
closing, she welcomed the opportunity to be part of the
continued conversation on how to achieve targeted improvements
that would be beneficial to all of Alaska. She said the ANCSA
Regional Association was opposed to moving HB 199 from
committee.
1:52:43 PM
CHAIR STUTES announced that they had completed today's list of
witnesses who were invited to provide testimony to the
committee.
[HB 199 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 199 Supporting Document David Montgomery.pdf |
HFSH 4/10/2018 10:00:00 AM |
HB 199 |
| HB 199 Opposing Document APA.pdf |
HFSH 4/10/2018 10:00:00 AM |
HB 199 |
| HB 199 Supporting Invited Testimony-Dr. Schindler.pdf |
HFSH 4/10/2018 10:00:00 AM |
HB 199 |