02/06/2013 03:30 PM Senate RESOURCES

         SB  26-LAND DISPOSALS/EXCHANGES; WATER RIGHTS                                                                      
                                                                                                                              
5:34:19 PM                                                                                                                  
CHAIR GIESSEL  announced the  consideration of  SB 26  and opened                                                               
public testimony.                                                                                                               
                                                                                                                                
ANDY ROGERS,  Deputy Director, Alaska State  Chamber of Commerce,                                                               
stated  that   for  the  last   several  years   regulations  and                                                               
permitting  processes have  risen to  being the  top three  state                                                               
priorities for the Chamber and  the membership generally supports                                                               
SB 26.  He applauded DNR  efforts to evaluate processes  and make                                                               
incremental improvements to make Alaska more successful.                                                                        
                                                                                                                                
5:36:46 PM                                                                                                                    
LISA WEISSLER, representing herself, Juneau,  AK, said she has 20                                                               
years  of  natural  resource  experience   as  an  attorney.  She                                                               
reviewed  the bill  section  by section  and  had suggestions  to                                                               
amend each.                                                                                                                     
                                                                                                                                
She  started  with the  general  permits  section and  said  this                                                               
section  gives  the  commissioner   the  authority  to  authorize                                                               
activities  through a  general permit  if the  commissioner finds                                                               
that  the  activity is  unlikely  to  result in  significant  and                                                               
irreparable harm to  state land or resources.  The laws generally                                                               
will help establish a consistency  and predictability in agency's                                                               
decisions which is important to  the public, the agencies and the                                                               
applicants.  But here,  according  to DNR,  decisions about  what                                                               
constitutes a  significant and  irreparable harm  is going  to be                                                               
made on  a case by  case basis,  which creates the  potential for                                                               
inconsistency  and uncertainty  in  decisions made  by both  this                                                               
commissioner and future commissioners.                                                                                          
                                                                                                                                
If general  permits are  going to be  allowed, a  better approach                                                               
might be  to establish them as  a separate provision in  law that                                                               
identifies   what  activities   qualify  and   the  process   for                                                               
establishing  the permits.  The  DNR currently  has a  regulation                                                               
that specifically  identifies activities  that don't  require any                                                               
permit, so  she didn't think it  unreasonable to ask to  have the                                                               
same level of clarity here.                                                                                                     
                                                                                                                                
Moving  on  to appeal  rights  that  are  all through  the  bill,                                                               
currently a person  who is aggrieved by a  DNR decision generally                                                               
has the  right to appeal  to the agency. The  legislation changes                                                               
that  so  that  a  person must  be  substantially  and  adversely                                                               
affected, and  that will be determined  on a case by  case basis,                                                               
which  creates   a  potential  for  inconsistency   and  possibly                                                               
inequitable decisions in how the statute is applied.                                                                            
                                                                                                                                
On  Monday, Mr.  Menefee said  there  is a  problem because  some                                                               
people say they don't like the  decision and that's all they get.                                                               
But most people aren't well  versed in state permitting law; they                                                               
don't know  it like the  agencies do, so  they don't know  how to                                                               
make their appeal  more effective and they do what  they can. Now                                                               
DNR  is  asking  them  to describe  how  they  are  substantially                                                               
affected  without  any  definition  about what  that  means;  DNR                                                               
doesn't seem to  know what that means either. He  also said there                                                               
are about  43 appeals a  year out  of the hundreds  of permitting                                                               
decisions they  make. Out  of those  43 about  25 percent  of the                                                               
people don't have anything more to  say than that they don't like                                                               
it; maybe 10  a year. So, it  doesn't look like this  is really a                                                               
big enough problem to make such a big change.                                                                                   
                                                                                                                                
MS. WEISSLER said the reservation  of water section is a solution                                                               
seeking  a problem  and DNR  really  just needs  the staffing  to                                                               
process  reservations. In  terms of  tendered water  use permits,                                                               
the  proposed language  gives the  commissioner the  authority to                                                               
issue an  infinite number of  temporary water  use authorizations                                                               
and Mr.  Menefee said  it's a  better way to  do it,  because the                                                               
state retains  control of  the water. But  the problems  are with                                                               
the  temporary water  use statutes,  because while  you can  make                                                               
adjustments  whenever  a new  permit  is  being issued,  that  is                                                               
discretionary on  the part  of the  commissioner, but  the public                                                               
never gets  a chance to weigh  in on issues the  department might                                                               
not know about. A better way  to do this is something in between,                                                               
she said,  if DNR wants to  authorize a temporary water  use that                                                               
has   passed  five   or  ten   years  but   not  a   water  right                                                               
appropriation, then develop a permit  that includes public notice                                                               
and criteria.                                                                                                                   
                                                                                                                                
5:41:43 PM                                                                                                                    
JAMES   SULLIVAN,  Legislative   Organizer,  South   East  Alaska                                                               
Conservation Council  (SEACC), testified in opposition  to SB 26.                                                               
He said the proposed revocation  of all personal use reservations                                                               
is problematic.  SEACC wants  to ensure  that the  environment is                                                               
protected and that anadromous streams  have highest priority when                                                               
permits are issued. He proposed  that when any entity applies for                                                               
a water  right on an  anadromus body of  water, that DNR  issue a                                                               
water reservation  on behalf  of the  fish; it  can refer  to the                                                               
Anadromus Waters Catalogue, which is  already there; once they do                                                               
that  they can  put  in an  appropriate  reservation. This  would                                                               
align DNR with  the State Constitution, Article 8,  Section 3, on                                                               
the   common   use   issue   and   protect   its   public   trust                                                               
responsibility;  it would  ensure protection  for our  salmon and                                                               
enhance  sustainable economic  development  across  the state  as                                                               
salmon is our  greatest renewable resource. It is  in the state's                                                               
best interest to  put a mechanism in statute to  protect the fish                                                               
resource as other entities apply for water rights.                                                                              
                                                                                                                                
He  also noted  that DNR  had spoken  at length  about permitting                                                               
problems,  yet the  2012 Frasier  Institute  Report ranks  Alaska                                                               
fourth in  the mineral entities  around the world  when combining                                                               
the  composite policy  and mineral  potential; over  90 different                                                               
regions in  the world fall below  us. He expressed hope  that the                                                               
committee  would address  that great  discrepancy when  the CEO's                                                               
who  fill out  Frasier's form  rank Alaska  so high  and the  DNR                                                               
commissioner provides such a low response.                                                                                      
                                                                                                                                
5:45:01 PM                                                                                                                    
HAL SHEPHERD,  Center for Water Advocacy,  Norton Bay Intertribal                                                               
Watershed Council,  and the Native  Village of Elim,  Seward, AK,                                                               
testified  in   opposition  to  SB  26.   He  expressed  concerns                                                               
regarding past  hearings in which  statements by the  Division of                                                               
Mining,  Land  and  Water  as  to who  this  bill  would  affect,                                                               
particular in reference  to the limitations on who  can now apply                                                               
for  in-stream  flows.   The  testimony  he  had   heard  so  far                                                               
noticeably omitted  Native Alaskan tribal governments  of which a                                                               
few  had  applied  for  in-stream   flows  on  waters  in  Alaska                                                               
specifically to protect  subsistence uses. But there  has been no                                                               
discussion  about  the fact  that  this  bill would  limit  those                                                               
applicants, including  several tribes who have  already submitted                                                               
applications, from  applying for  in-stream flows. This  seems to                                                               
be a  continuation of the  administration's efforts  to privatize                                                               
water rights in  Alaska, but also severely  limiting the standing                                                               
for  individuals  who  can appeal  applications  that  have  been                                                               
issued for  mining permits, oil  and gas drilling or  hydro power                                                               
plants,  which  again  noticeably   leaves  out  the  substantial                                                               
majority of  individuals, tribes or  NGOs who may be  impacted by                                                               
the issuance of such water rights.                                                                                              
                                                                                                                                
MR.  SHEPHERD urged  the committee  not  to strip  the rights  of                                                               
individuals'  constitutional  rights,   specifically  Article  8,                                                               
saying the state can issue water  rights subject to a general use                                                               
for fish for all of Alaska's citizens.                                                                                          
                                                                                                                                
RICK  ROGERS, Executive  Director,  Resource Development  Council                                                               
(RDC), Anchorage, AK, testified in support  of SB 26. He said RDC                                                               
is a  statewide business  association representing  the forestry,                                                               
oil  and gas,  mining, tourism  and fishing  industries with  the                                                               
overall of  mission to grow  Alaska through  responsible resource                                                               
development.  One  of  their top  legislative  priorities  is  to                                                               
encourage  the  state to  promote  and  defend the  integrity  of                                                               
Alaska's  permitting  process  and to  advocate  for  predictable                                                               
timely  and  efficient  state and  federal  permitting  processes                                                               
based on sound science and economic feasibility.                                                                                
                                                                                                                                
He  said  the  legislature  to   its  credit  provided  DNR  with                                                               
additional resources in past years  to address what had become an                                                               
untenable backlog  of permits  and authorizations.  Such backlogs                                                               
negatively affect  our resource industries, but  they also affect                                                               
many  individual  Alaskans who  are  seeking  the required  state                                                               
authorizations.  It's important  to  recognize  that Alaska  land                                                               
entitlement  is over  100 million  acres  plus jurisdiction  over                                                               
submerged  lands and  the  permits that  DNR  adjudicates go  far                                                               
beyond  the  mineral   industry  and  he  was   puzzled  why  the                                                               
discussion  is so  focused  on  that one  industry.  He was  also                                                               
curious  about how  permits are  adjudicated for  mining projects                                                               
versus everyday  Alaskans trying to  cross tidelands to get  to a                                                               
dock.                                                                                                                           
                                                                                                                                
MR. Rogers said ramping up staff  to adjudicate the backlog was a                                                               
great idea, but it's addressing  a symptom rather than systematic                                                               
improvements. Now,  we have a  very complex set of  statutes that                                                               
have been developed over five  decades of statehood and they need                                                               
some improvements. Commissioner  Sullivan had done a  good job of                                                               
identifying specific  means of improving  the efficiency  of this                                                               
complex  system and  the administration  should be  applauded for                                                               
proposing numerous changes  to DNR enabling statutes  in order to                                                               
make their processes more timely and efficient.                                                                                 
                                                                                                                                
CHAIR  GIESSEL  closed  public  testimony   and  held  SB  26  in                                                               
committee.