Legislature(2015 - 2016)GRUENBERG 120
03/15/2016 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB283 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 283 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 283-NATL. RES. WATER NOMINATION/DESIGNATION
10:03:27 AM
CHAIR STUTES announced that the only order of business would be
HOUSE BILL NO. 283, "An Act relating to the nomination and
designation of state water as outstanding national resource
water; and providing for an effective date."
10:04:15 AM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), introduced HB 283, companion bill to SB 63,
paraphrasing from the sponsor statement, which read as follows
[original punctuation provided]:
House Bill 283 (HB283) creates a process for water in
Alaska to be designated as an Outstanding National
Resource Water (ONRW). The purpose of an ONRW - or
Tier 3 - designation is to offer special protection
for waters of "exceptional recreational or ecological
significance." Once a water is designated as an ONRW,
the only additional pollutants from wastewater
discharges that can be added to that water are
temporary and limited.
The state is required to establish a process for ONRW
designation under the federal Clean Water Act. Current
statute and the Constitution are not clear regarding
the Department of Environmental Conservation (DEC)'s
authority to designate ONRWs. ONRWs are afforded
special protection: because only temporary and limited
pollutants are allowed to be added to ONRWs, an ONRW
designation effectively becomes a land use decision
with the possibility of impacting or barring further
development on lands near ONRWs. Given the far-
reaching consequences of designation, ONRW designation
is more appropriately the Legislature's decision.
This bill clarifies that the final designation
decision is made by the Legislature. It also
establishes a process by which nominations can be
submitted to and compiled by DEC for submittal to the
Legislature for consideration.
There is no anticipated increased cost to implement
this bill. DEC will be able to establish regulations
and collect nominations with current staffing levels.
There are currently no ONRWs in the State of Alaska;
however, DEC has received three requests for ONRW
designations, which DEC is holding until a final
process for designation is established.
It is important to the protection of Alaska's human
and environmental health to have a clear process for
designation of Outstanding National Resource Waters or
Tier 3 waters in the state.
COMMISSIONER HARTIG continued to clarify the difference of the
Tier 1, 2, and 3 designations, and the amount of pollutants that
are allowed at each level. The Tier 3 allows no additional
pollution, whereas the Tier 2 represents a multi-use waterway.
Additionally, once designated Tier 3 status, the waters are not
eligible for reclassification, he stressed.
10:12:31 AM
CHAIR STUTES asked whether other levels of classification can be
modified, once designated.
COMMISSIONER HARTIG answered that there are no provisions for
altering these classifications, but litigation and a court
ruling could be brought against any tier status.
10:14:44 AM
REPRESENTATIVE KREISS-TOMKINS asked when did the U.S.
Environmental Protection Agency (EPA) issue regulations
requiring states to create processes for Tier 3 designations.
COMMISSIONER HARTIG answered that the requirement has been
around for some time, regarding the tier designations. Federal
law 40 CFR 131.12, requires states to have anti-degradation
provisions, and it provides a specific list of inclusions. He
reported on other states facing court challenges, and said
Alaska's policy was adopted in 1997.
REPRESENTATIVE KREISS-TOMKINS asked, "What's happened in the
last 17-plus years?"
COMMISSIONER HARTIG explained that DEC regulations stipulate
policy for issuing permits, as promulgated under state law. He
described the federal and state permit exchange that has been
used for compliance with the Clean Water Act and to ensure anti
degradation practices. However, the way the department was
handling the permits was not set out explicitly in guidance or
regulation. In 2010 DEC issued interim guidance and began a
public process to vet proposed regulations. Workshops were
held, and input taken to determine how best to handle the
requirement. The process being developed caused constitutional
questions to arise of whether a state agency or the legislature
holds the authority for designating a waterway as conservation
status; Tier 3. The attorney general (AG) has been involved and
the legal question remains.
10:19:41 AM
REPRESENTATIVE HERRON asked about the existence of Tier 3 or
Tier 1 waters in the state.
COMMISSIONER HARTIG replied that Tier 1 designations have been
made, via regulation, but none for Tier 3.
REPRESENTATIVE HERRON ascertained that the majority of Alaskan
waters are designated Tier 2.
COMMISSIONER HARTIG replied, correct.
REPRESENTATIVE HERRON asked what will occur if Alaska fails to
create a process for designating Tier 3 waters, and not satisfy
the federal mandate.
COMMISSIONER HARTIG speculated that the federal government will
enforce the requirement, and possibly take the lead for
designating Alaska's waters.
10:21:57 AM
CHAIR STUTES asked whether any waters in Alaska have been
proposed for Tier 3 designation.
COMMISSIONER HARTIG said DEC has received four nominations,
which are: Bristol Bay watershed; Koktuli River, Chilkat River,
and the Yakutat forelands watershed. The department has not
taken action due to the ambiguity that exists around the
process, he pointed out.
10:23:22 AM
REPRESENTATIVE ORTIZ observed that, to this point, Alaska has
been operating without an adopted policy.
COMMISSIONER HARTIG said that a policy exists, but DEC lacks
guidance for the implementation process.
REPRESENTATIVE ORTIZ asked what has transpired to prompt the
introduction of the bill.
COMMISSIONER HARTIG responded that DEC has an anti-degradation
policy, 18 AAC 70.15, which contains elements of the process.
Hundreds of permits have been issued under this policy, without
challenge. However, a series of cases have been brought,
outside of Alaska, which created concern for how explicit the
DEC guidance policy needs to be in order to meet the EPA
requirements. Thus, the agency is working proactively to create
a clear guidance policy.
10:25:43 AM
REPRESENTATIVE KREISS-TOMKINS asked if it's accurate to say that
Alaska lacks a process for implementing existing policy.
COMMISSIONER HARTIG clarified that the policy has been
implemented for nearly two decades, but today the implementation
process is coming under scrutiny. Today's political climate
requires explicit, transparent, guidance policies.
REPRESENTATIVE KREISS-TOMKINS restated that the bill proposes to
solve a problem; that being the lack of a process for
designating Tier 3 waters.
COMMISSIONER HARTIG explained that the anti-degradation policy,
as implemented by DEC, deals with all tier designations but,
until now, no Tier 3 waters had been proposed. He said:
How we take in nominations and how we decide
nominations [for Tier 3 waters], that has not been in
any kind of guidance or regulation. That's new
because nobody had ever proposed any before; now we
[have] four [nominations].
REPRESENTATIVE KREISS-TOMKINS clarified that there is no current
process for designating Tier 3 waters.
COMMISSIONER HARTIG said a process exists: legislation. At any
time, he explained, an interested party could approach the
legislature requesting a bill be drafted to designate Tier 3
waters. The administration believes that the decision should be
held at the legislative level, and not be designated via the
agencies permit process. He said the legislature has the
ability to complete the most comprehensive review, as well as
provide for the public process component.
10:30:13 AM
REPRESENTATIVE KREISS-TOMKINS returned to the possibility of the
federal government designating Alaska's Tier 3 waters, and asked
how that might occur given Commissioner Hartig's testimony that
the process does exist, as held by the state legislature.
COMMISSIONER HARTIG said an ambiguity exists in the system. The
department has authority from the legislature to implement the
federal Clean Water Act, which stipulates the anti-degradation
provisions. Further, the legislature has granted DEC the
authority to set water quality criteria, and to protect waterway
use. The question is, does that include the authority for
designating Tier 1, 2, and 3 waters. The possibility for naming
Tier 2.5 waters also exists. The AG's office is debating the
question and has opined that there may be a constitutional
prohibition for the state agency to enact a Tier 3 designation.
The federal government would provide procedural guidance should
a court rule that DEC retains the designation authority but
continues to lack a clear process.
10:32:21 AM
REPRESENTATIVE HERRON commented that it appears caution may be
required for designating waterways Tier 3; however, having
federal intervention also needs to be avoided. The Tier 2.5 is
an interesting designation, he noted, and asked if that status
would allow a future legislature to revisit and possibly amend
the designation.
COMMISSIONER HARTIG stated his belief that a subsequent
legislature could vote to change a previously enacted
designation.
REPRESENTATIVE HERRON asked whether a local boundary commission
might be useful as a designation council.
COMMISSIONER HARTIG said yes, and pointed out that some states
have seated a commission or advisory board. He opined that the
legislature would be best to hold control over the designation
process, and theorized on the benefits of such an arrangement.
10:37:57 AM
CHAIR STUTES stated her understanding that Alaska is neither
compelled, nor required, to have Tier 3 designated waters.
COMMISSIONER HARTIG concurred, and added that a policy and
process for designation remains as a federal requirement. The
decision for whether or not to designate is held by the state,
he underscored.
10:38:35 AM
REPRESENTATIVE KREISS-TOMKINS asked how many other states share
Alaska's lack of a clearly defined process; save designation by
the legislature.
COMMISSIONER HARTIG offered to provide further information.
10:40:51 AM
REPRESENTATIVE JOHNSON asked for clarity on how the department
would be presenting recommendations regarding a designation
process to the legislature in order to have appropriations
authorized to conduct a study.
COMMISSIONER HARTIG said the vision is to have the public
nominate waterways to DEC and the department would forward the
list to the legislature for consideration. The elected
officials would make determinations and prioritizations. Funds
would then be appropriated to the agency to conduct necessary
watershed analysis and formulate a response for further
consideration by the legislature.
REPRESENTATIVE JOHNSON clarified that the initial legislative
step would require specific funding, from either the capital or
operating budget, and the final designation of a watershed would
reside with the legislature.
COMMISSIONER HARTIG concurred.
REPRESENTATIVE JOHNSON asked whether the funds appropriation
would result in starting or ending the process.
COMMISSIONER HARTIG stepped through the process: waters are
publicly nominated; nominees are provided to the legislature for
review; and the legislature chooses what further steps to take.
The legislative steps to be taken might include: no action;
direction to DEC to generate a comprehensive, legislative,
report for possible action; or acknowledgment that a waterway
should be designated Tier 3 via direct action. However, without
authority from the legislature, the agency will not act on
making Tier 3 designations, and funding will be necessary to
study nominated watersheds.
REPRESENTATIVE JOHNSON stated that the authority for DEC to
implement Tier 3 would be granted by virtue of an appropriation
act being passed by the legislature. He referred to the bill,
page 1, lines [5]-7, which read as follows:
Sec. AS 46.03.085. Outstanding national resource
water. (a) Water of the state may not be designated as
outstanding national resource water as specified in 40
C.F.R. Part 131.12 except by an act of the
legislature.
REPRESENTATIVE JOHNSON said it's necessary to clarify that
agency authorization will require a statutory act, not just an
appropriations act.
COMMISSIONER HARTIG restated the steps envisioned, and pointed
out that amendments to the bill are being entertained.
REPRESENTATIVE JOHNSON opined that, as currently written, the
appropriation could serve as the required legislative act, thus
providing DEC the authority to make Tier 3 designations.
COMMISSIONER HARTIG said, "That wasn't our intent."
10:48:38 AM
REPRESENTATIVE HERRON suggested that a Tier 3 status should
require a minimum of two positive acts by the legislature: one
to begin the review, and one to implement the designation.
10:49:08 AM
REPRESENTATIVE KREISS-TOMKINS maintained interest in receiving
additional information: How other states have handled this
federal requirement; which states have not enacted a process to
designate Tier 3 waters; and a copy of the AG's opinion
indicating a legal ambiguity regarding DEC's ability to
designate Tier 3 waters. He opined that a legislative act does
not appear to be required for DEC to designate waters to a tier
status.
COMMISSIONER HARTIG clarified that the AG has not issued a
formal opinion.
10:50:50 AM
REPRESENTATIVE JOHNSON pointed out that Lake Tahoe is a Tier 3
designation, and said it is apparent, when crossing the
California/Nevada border that the Nevada side hosts large scale
development, but the California side shows very little. He
asked for information on how these two states handle the shared
designation.
COMMISSIONER HARTIG offered to provide further information.
REPRESENTATIVE JOHNSON expressed a need for caution, regarding
locking up waters that may be principle for future development.
10:52:39 AM
CHAIR STUTES opened public testimony.
10:52:57 AM
HEIDI KRITZ, Spokesperson, United Tribes of Bristol Bay, stated
opposition to HB 283. She named the tribes she represents from
the Bristol Bay area and pointed out the Native's dependence on
traditional subsistence practices. The tribes do not support
politicizing the determination of outstanding national resource
waters, she opined, and said the decisions should be science
based. Alaskans need the ability to engage in the process for
nominating Tier 3 waters and to protect watersheds for continued
traditional use. She said:
We cannot support this bill as Alaskans deserve a
fair, just, and scientific based process for this
important tool to recognize and preserve our waters
that support our bountiful resources that support our
communities and state.
10:55:24 AM
MARK VINSEL, Executive Administrator, United Fisherman of Alaska
(UFA), stated opposition to HB 283 and stressed the importance
for having a clearly defined policy for nominating and
recognizing Tier 3 waters using science based decisions. He
recommended that DEC retain purview over the process and
determinations, in collaboration with the Department of Natural
Resources (DNR) and the Alaska Department of Fish & Game
(ADF&G), as well as include public hearings. The bill is in a
skeletal form and subject to "tightening up," he noted and
suggested that the word "may" throughout the proposed language
is ineffective.
REPRESENTATIVE HERRON indicated how the bureaucratic make-up of
DEC may change in the future and asked whether the final
determinations wouldn't be better served in the hands of the
people's elected representatives.
MR. VINSEL acknowledged that a legislative role may be
necessary; however, a robust process involving the public and
other state agencies, is optimal.
11:00:22 AM
GUY ARCHIBALD, Director, Inside Passage Water Keepers, Southeast
Alaska Conservation Council (SEACC), stated opposition to HB 283
and clarified the use of Tier 3 waterways: The designation bans
permanent or long term degradation of water quality by a
permitted discharger. A grandfather law exists for any existing
dischargers, which are already in place. Additionally, other
uses that do not require discharge, such as boating and fishing,
are allowed. A Tier 3 designation does not ban industry from
operating on the land or discharging into the water. Industry
would be required to treat any effluent to match the existing
quality of the water that receives the discharge or utilize an
alternative land based application, such as the deep well
injection used by oil and gas companies, or recycling, which is
what the Pogo Mine utilizes. A misconception appears to exist
regarding the difference between the Tier 2 and Tier 3
designations, he opined and explained the differences: A
citizen can nominate a Tier 2 water body for Tier 3 designation,
through gathering published science, collecting additional
scientific data, and submitting the information to DEC. The
agency invokes a process and possibly reclassifies the waterway,
as requested. When that occurs, a timeline is instigated that
limits the amount of time for the additional discharge, or new
pollution, to be allowed into the water body. He reported that
Alaskan waterways are assumed to be Tier 2 status, and, further,
little data exists on the majority of Alaskan watersheds; 99.7
percent lack scientific study. Also, no mandate exists that
baseline water quality be determined prior to the agency
permitting discharge. The process should be handled the same as
any land use or other action that is permitted under the purview
of DEC, or DNR he opined. The process should be clearly
defined, handled as an administrative procedure, and based on a
consistent set of scientifically determined criteria. Further,
it should be a public process, with open hearings.
Additionally, he pointed out, two states standout as having
extensive Tier 3 designated waterways: Colorado with 6,000 and
New Mexico with 2,000. Both of these states also host robust
natural resource extraction industries and vibrant economies.
11:04:27 AM
REPRESENTATIVE ORTIZ asked for elaboration on the opposition
statement.
MR. ARCHIBALD qualified that SEACC's opposition is due to DEC
lacking a specific and clear set of criteria on which to base
designations. Allowing the legislature to make the decision,
would unnecessarily politicize the process, he opined.
11:06:08 AM
REPRESENTATIVE JOHNSON inquired whether SEACC, or the witness
personally, have been involved in a petition drive regarding the
Bristol Bay watershed area.
MR. ARCHIBALD responded, "No."
11:06:25 AM
REPRESENTATIVE KREISS-TOMKINS asked about other states that lack
a defined process for designating Tier 3 waters.
MR. ARCHIBALD answered that other states are in the same stage
of creating a process as Alaska, and named Idaho for one. A
variety of processes have been adopted across the nation, he
reported, some are administrative, others rely on the
legislature only, and in some cases a board is entrusted with
the duties. Some states utilize a combination of these
approaches and the results vary widely, he finished.
11:07:25 AM
REPRESENTATIVE JOHNSON asked if SEACC, or its national governing
body, donated money to the petition drive to limit a large scale
mine in Bristol Bay.
MR. ARCHIBALD responded, "Not to my knowledge."
11:08:37 AM
MALENA MARVIN, Owner, Schoolhouse Fish Company, stated
opposition to HB 283, paraphrasing from a prepared statement,
which read as follows [original punctuation provided]:
Thanks for letting me submit testimony today. The
following are notes from my remarks in committee
today. To be clear, I oppose HB 283, because our
family's commercial fishing business is dependent on
protection of clean water.
We are members of the Seafood Producers Co-op,
Petersburg Vessel Owners Association, Alaska Trollers,
and others, and my partner Eric Grundberg has been
fishing out of Petersburg for over a decade.
We are starting a direct-market small seafood business
here in Petersburg, Schoolhouse Fish Co., and are also
part of a new League of Alaskan Direct Market
fishermen.
Weakening the state's ability to protect clean water
does not help family fishermen like us. We benefit
from and are thankful that the state has invested a
lot of money and time into marketing Alaska's waters
as pure and clean. This bill undercuts that
investment.
I was shocked to learn about this bill. It's a big
step in the exact opposite direction we need to go. We
should be strengthening, not weakening, our ability to
protect clean water since fishing is our state's
biggest jobs creator and our state's most sustainable
industry.
Alaska should be working to implement a clearly non-
partisan process for ensuring Tier III waters are
considered. These designations should be open to
thorough public review by an agency experienced with
considering scientific criteria, as would be the case
if they are processed by an agency or consortium of
agencies led by DNC.
I do not believe that a partisan legislature heavily
influenced by mining and oil corporations is the right
place to carry out implementation of the Clean Water
Act. Alaska's legislature has an uncommonly short
session and is neck deep in very serious budget issues
that will not be resolved anytime soon. The Clean
Water Act should be fully implemented in Alaska by
agencies with the experience, scientific expertise and
staff bandwidth to do a thorough and non-partisan job.
Despite Commissioner Hartig's failure to properly
answer this question when brought in committee today,
it is common knowledge that Alaska is one of the last
states to avoid implementing this part of the Clean
Water Act. This is despite the fact that we have the
greatest economic stake in clean water.
Let's remember why we have the Clean Water Act - to
ensure our water stays fishable, swimmable, and
drinkable for future generations. We should be doing
everything we can to support this goal, not weaken it.
Representative Craig Johnson's insinuation in
committee that Tier III designations could "lock up
water for development forever" is [not] factual and
disingenuous. Tier III designations only prevent
pollution, not development, and I think we can all
agree that Alaska welcomes development that does not
pollute water. His use of Lake Tahoe as an analogy was
a poor comparison lacking in fact and heavy on
innuendo.
As a member of United Fishermen of Alaska member
groups, I'd have to agree with Mr. Vinsel that a
robust public process is the best way to protect
Alaska's outstanding waters.
11:14:12 AM
MELANIE BROWN, Fisherman, stated opposition to HB 283, citing
the necessity for Alaska's waterways to be protected.
Nominations have been languishing, despite the importance to the
communities that rely on clean water. The legislature should
not be in charge of this type of decision, as members are not
trained scientists. Once deemed to be a Tier 3 waterway, there
should be no reason for a need to reverse that decision, she
opined.
11:17:41 AM
CHAIR STUTES closed public testimony and announced HB 283 as
held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB283 Sponsor Statement.pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB283 ver A.PDF |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB283 Fiscal Note DEC.PDF |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB283 Supporting document - FAQs.pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB283 Supporting Documents - Transmittal Letter to Speaker Chenault 1.28.2016.pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB283 Supporting document - KHNS Article.pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB 283 Backup UFA Oppose HB 283.pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB 283 Backup UFA comments on DEC Antidegradation Regs (1).pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |
| HB283 DEC response to Mar 15 meeting.pdf |
HFSH 3/15/2016 10:00:00 AM |
HB 283 |