Legislature(2023 - 2024)BUTROVICH 205
03/17/2023 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB72 | |
| Presentation(s): Heavy Oil Recovery | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 72 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 72-NATL. RES. WATER NOMINATION/DESIGNATION
3:31:20 PM
CO-CHAIR BISHOP announced the consideration of SENATE BILL NO.
72 "An Act relating to designation of state water as outstanding
national resource water; and providing for an effective date."
3:31:32 PM
SENATOR CATHY GIESSEL, District E, sponsor of SB 72, explained
that the bill proposes a formal process for designating
waterbodies as Outstanding National Resource Waters (ONRW).
These are commonly known as Tier III waters, which are part of
the Clean Water Act that was enacted in 1972. This federal law
mandated that states implement water quality standards by 1983.
These standards had to include designated use classifications,
numerical or narrative water quality criteria, and an anti-
degradation policy. At a minimum, the anti-degradation policy
had to establish minimums for management of water quality in a
tier system.
3:32:51 PM
SENATOR CLAMAN joined the committee.
3:33:43 PM
SENATOR GIESSEL spoke to the document in the bill packet titled,
"Water Quality Tier 3 Water Nomination and Designation Process
in Alaska." Page 4 describes the three tiers of water quality.
Tier I refers to the existing quality of the water, also known
as "the floor." Tier I waters do not meet one or more of the
water quality standards due to things like docks, agricultural
runoff, and boat traffic. Tier II waters are high quality. They
comprise the majority of waters in Alaska and are safe for
fishing and swimming. Tier III waters are Outstanding National
Resource Waters (ONRW); they deserve special protections. They
receive the highest protection under the anti-degradation policy
of the Clean Water Act.
3:35:46 PM
SENATOR GIESSEL read 40 Code of Federal Regulations
131.12(A)(3):
"WHERE HIGH QUALITY WATERS CONSTITUTE AN OUTSTANDING
NATIONAL RESOURCE, SUCH AS WATERS OF THE NATIONAL AND
STATE PARKS AND WILDLIFE REFUGES AND WATERS OF
EXCEPTIONAL RECREATIONAL OR ECOLOGICAL SIGNIFICANCE,
THAT WATER QUALITY SHALL BE MAINTAINED AND PROTECTED."
She said Tier III waters have no development along side, no
pollution, and no degradation is allowed.
3:36:38 PM
SENATOR GIESSEL spoke to the Department of Environmental
Conservation (DEC) policy and procedure document that provides
guidance relating to the nomination and designation of Tier III
waters. Nominations are submitted to DEC and the policy states
that the nominations will go to the legislature. Implementing
this policy is at the discretion of the DEC commissioner, which
means the policy could change. The bill addresses this issue by
codifying that the designation of Tier III waters is in the
hands of the legislature.
SENATOR GIESSEL displayed a state map that identifies the
locations of five waterbodies that have been nominated as Tier
III and submitted to DEC. She noted that copies of the five
letters requesting Tier III designation were in the bill
packets. She restated that the bill proposes that these
nominating letters be submitted to the legislature to review and
determine whether the designation is appropriate.
3:39:26 PM
SENATOR GIESSEL cited the Constitution of the State of Alaska
that clarifies that appropriation of resources, as assets of the
state, is the purview of the legislature. She read:
"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."
ALASKA CONSTITUTION, ARTICLE 8, SECTION 2
"ALL SURFACE AND SUBSURFACE WATERS RESERVED TO THE
PEOPLE FOR COMMON USE, EXCEPT MINERAL AND MEDICINAL
WATERS, ARE SUBJECT TO APPROPRIATION. PRIORITY OF
APPROPRIATION SHALL GIVE PRIOR RIGHT. EXCEPT FOR
PUBLIC WATER SUPPLY, AN APPROPRIATION OF WATER SHALL
BE LIMITED TO STATED PURPOSES AND SUBJECT TO
PREFERENCES AMONG BENEFICIAL USES, CONCURRENT OR
OTHERWISE, AS PRESCRIBED BY LAW, AND TO THE GENERAL
RESERVATION OF FISH AND WILDLIFE."
ALASKA CONSTITUTION, ARTICLE 8, SECTION 13
SENATOR GIESSEL stated that the Alaska Supreme Court underscored
this authority in Mallott v. Stand for Salmon. The question was
whether an initiative could be used to designate a state water
as Tier III. The court ruled that an initiative designating a
Tier III water would override the legislature's power to make
decisions about the allocation of state assets. The court went
on to say that the legislature has the ultimate decision-making
authority to use specific public assets for specific purposes.
3:40:54 PM
SENATOR WIELECHOWSKI joined the committee.
3:41:25 PM
SENATOR GIESSEL spoke to the following summary of what SB 72
seeks to do:
SUMMARY
CODIFIES ALASKA DEPARTMENT OF ENVIRONMENTAL
CONSERVATION'S CURRENT TIER III POLICY.
COULD EXPEDITE THE CURRENTLY NOMINATED WATERBODIES.
3:42:20 PM
JULIA O'CONNOR, Staff, Senator Cathy Giessel, Alaska State
Legislature, Juneau, Alaska, presented the sectional analysis
for SB 72 on behalf of the sponsor:
Section 1: Amends AS 46.03 by adding a new section
that: Establishes AS 46.03.085(a). Through statute,
the legislature may designate water of the state as
an outstanding national resource water. Establishes
AS 46.03.085(b). Unless the body of water has been
designated as an outstanding national resource water
can it be managed like so.
Section 2: Applies for an immediate effective date.
3:43:26 PM
RANDY BATES, Director, Division of Water, Department of
Environmental Conservation, Juneau, Alaska, stated support for
SB 72 on behalf of the department. He spoke to the following
points:
[Original punctuation provided.]
Outstanding Natural Resource Waters, ONRWs or Tier 3
waters, are defined as waters of "of exceptional
recreational or ecological significance" which shall
be "maintained and protected" from degradation in
perpetuity.
A Tier 3 designation of a waterbody bestows the
highest level of water quality protection under the
federal Clean Water Act and restricts a wide range
of activities on these waters as well as on adjacent
lands.
Since 1983, the Clean Water Act has required that each
state establish an ONRW or Tier 3 designation
process.
Alaska has a process in place, formalized in November
2018 in the form of a Department Policy and
Procedure that essentially reads the same as the
bill "The current process for nominating Tier 3
waters involves proposing the introduction of
legislation to make the designation. Any such
request may go to a legislative representative or
committee for consideration for introduction as a
legislative bill. Typically, a request to an
individual legislator would go to a legislator whose
district contains the proposed Tier 3 water."
Because the designation of a Tier 3 water carries with
it the requirement to maintain and protect the water
quality from degradation, the designation restricts
a wide range of activities on the waters and
adjacent areas, to include
• road and building construction
• recreational activities
• seafood processing
• municipal wastewater discharge and septic systems
• storm water discharge
• landfills
• gravel quarries
• large-scale resource development projects
• and or any other activity that might affect the
designated water
Designation as a Tier 3 waterbody requires that the
water quality on the designated body be maintained
and protected for the reasons designated and for the
water quality at the time of designation.
What that practically means is that no new or
increased discharges to the river or its tributaries
would be permitted if the discharges would result in
lowering or degrading the water quality.
That has potential long-term if not permanent adjacent
and upstream land-use consequences no new
discharge contributions that lower or degrade water
quality, whether those new discharges meet water
quality standards or not.
That would potentially eliminate road improvements in
the area, increased or changed discharges from
municipal wastewater treatment facilities, increased
recreational opportunities, seafood processing, or
anything else that might affect the water quality.
Such widespread impacts effectively make a Tier 3
designation a de facto land and water use decision,
one that may be based on designation criteria and
use restriction well outside the Department's
expertise and authority.
The Department is supportive of this bill that
formalizes that the designation of Tier 3 waters by
the legislature through statute for three very
important reasons:
1. The legislative process provides a full and
public process engaging all the interested and
affected parties, including those communities,
residents, users, developers, and
conservationists, and also those agencies with
oversight responsibilities for the area lands and
waters;
2. The legislative process allows for a full
discussion on the consequences, restrictions, or
impact to other activities and potential
activities by the designation, including future
and foreseeable activities; and
3. This legislative body and process is the proper
forum to establish land and water use
designations, and we are pleased to return that
power to this body in this instance.
Providing for the designation of a Tier 3 water as
structured in the bill will bring certainty to the
process and would codify in statute a consistent
practice for how lands and waters across the state
would be designated for conservation by legislative
approval rather than by division, department, or
judicial discretion.
3:48:52 PM
SENATOR DUNBAR asked whether any other states use a regulatory
process.
MR. BATES said yes; it's done by regulation, by statute, by
commission, or by a commissioner. He noted that Idaho has a
legislative process that's similar to what SB 72 proposes.
SENATOR DUNBAR referred to the slide that shows the locations of
the five waters that have been nominated as Tier III waters. One
of the nominations is the Chilkat River near Haines. He asked
whether the legislature could act on its own to designate the
Chilkat River as a Tier III water.
MR. BATES said yes; DEC's current policy directs proponents to
the legislature. If the legislature were to make that
designation, DEC would manage that waterbody accordingly.
SENATOR DUNBAR clarified the question. He asked, if DEC did not
have the current policy in regulation, would the Environmental
Protection Agency (EPA) recognize the legislature's inherent
power to designate a waterbody as Tier III.
MR. BATES said he would follow up in writing after he'd
conferred with the Department of Law, but his belief was that
the answer is yes.
SENATOR DUNBAR articulated his conclusion that SB 72 does not
give the legislature new power to designate Tier III waters; the
bill restricts the department in the future from changing the
regulations and eliminating the legislature from the process. He
opined that this probably would reduce the likelihood of Tier
III designations in the future.
MR. BATES said it would only reduce the likelihood of Tier III
designations in the future if it were the will of the
legislature to do so.
SENATOR DUNBAR clarified that SB 72 ensures that the
designations would be solely up to the legislature.
MR. BATES agreed.
3:52:41 PM
CO-CHAIR BISHOP asked whether the onus to prove that a waterbody
should be designated as Tier III was on the individual or entity
that submitted the nomination to DEC. But if SB 72 were to pass,
the onus of proof would reside with the legislature.
MR. BATES replied that the onus of proof is always on the
proponent. His expectation is that anybody who nominates a
waterbody as Tier III would be asked to provide proof.
3:53:41 PM
SENATOR CLAMAN offered his understanding that the five
waterbodies depicted on the map the sponsor presented were
nominations that were submitted to DEC.
MR. BATES agreed. He explained that when each application was
submitted, the department reached out to the proponent to
articulate the process going forward.
SENATOR CLAMAN noted that one of the applications was submitted
in 2009. He asked whether any of the nominations had been
approved.
MR. BATES answered no, but each proponent received instructions
on the process to pursue the designation of a Tier III
waterbody. The instructions were based on DEC's policy and
procedure document relating to the nomination and designation of
Tier III waters.
SENATOR CLAMAN asked whether the policy became effective in
2018.
MR. BATES confirmed the effective date was November 21, 2018.
SENATOR CLAMAN summarized that the applications are submitted to
DEC but the department's policy and procedure is to notify the
applicant that they must go to the legislature to designate the
waterbody.
MR. BATES confirmed that the department would direct the
proponent to the legislature and suggest they seek help from
their legislator in the House and Senate.
3:55:15 PM
SENATOR CLAMAN observed that DEC's policy is to serve as a pass
through.
MR. BATES confirmed that the department would direct the
proponent to the legislature to evaluate the nomination.
CO-CHAIR BISHOP observed that the hurdle for proponents was the
cost to do the science necessary to prove to the legislature
that the nomination was valid.
MR. BATES said he would provide a copy of the letter he
submitted to the legislature last year about the cost to propose
a waterbody be designated as Tier III. He said the notion is
that the proponent should identify the reasons that the
department should be managing that waterbody as a Tier III so it
can ensure there is no degradation to the water quality.
The point is if there is a special waterbody that needs
increased coverage, there should be effort put in to identify
what the existing water quality criteria are so that the state
agency vested with the protection of human health and the
environment, and the implementation of water quality standards
knows exactly how and why it is managing that waterbody as Tier
III.
3:57:10 PM
SENATOR WIELECHOWSKI offered his understanding that the
legislature delegated to DEC the authority to develop clean
water quality standards, and that anti-degradation is part of
that authority.
MR. BATES agreed; as part of the delegated authority of primacy
under the Clean Water Act, DEC identified designated uses,
established water quality standards, and developed and
implemented an anti-degradation policy. That anti-degradation
policy includes a process for Tier I waters, Tier II waters, and
Tier III waters.
SENATOR WIELECHOWSKI observed that the philosophical question is
whether waterbody designations should be based on an agency
review of the science and what it shows to be best for the
waterbody or a political decision. He further observed that the
department seems to be advocating for waterbody designations
that rely on political decisions.
MR. BATES posited that science would prevail when the
legislature is presented with the facts.
CO-CHAIR BISHOP turned to invited testimony.
3:59:58 PM
LEILA KIMBRELL, Executive Director, Resource Development Council
for Alaska, Inc., Anchorage, Alaska, provided invited testimony
on SB 72, paraphrasing the following prepared testimony:
[Original punctuation provided.]
Briefly, for 47 years, RDC has advocated for a strong,
diversified private sector in Alaska and to expand the
state's economic base through the responsible
development of our natural resources. We are a
statewide trade association comprised of individuals
and companies from Alaska's fishing, tourism,
forestry, mining, and oil and gas industries. This
includes private companies, labor organizations,
Alaska Native corporations, as well as local
governments and non-profit organizations. RDC
collaborates with our partners and policy makers to
ensure Alaska continues to have a strong and diverse
economy by growing Alaska through the responsible
development of our natural resources.
Thank you for the opportunity to provide invited
testimony on SB 72, an act relating to the designation
of state water as outstanding national resource water,
also commonly referred to as "Tier 3" waters. RDC
speaks in support of SB 72, which provides a clean
solution to complying with EPA requirements to codify
State agency policy related to Tier 3 waters for the
following reasons.
EPA, under our nation's Clean Water Act, requires all
states to have a policy against the degradation of
waters and to maintain associated procedures that
prohibit the lowering of water quality under three
categories of water protection, the most stringent of
which is Tier 3.
Tier 3 designation is for an Outstanding National
Resource Water, which is described as having
exceptional recreational or ecological significance.
Tier 3 waters are required to be maintained to their
baseline conditions, and effectively cannot have any
new or expanded activities that have the potential to
change the water quality in any way. This would apply
even in situations where the activity meets the water
standards and fully protects fish and other water
uses, especially the highly regulated industries I
represent.
(note/citation: See 18 AAC 70.016(d)).
To be clear: the Clean Water Act, combined with other
federal and state policy extensively regulates how
waters are managed and impacted by all user groups.
Stringent water quality standards are established,
baseline study is done, extensive monitoring takes
place, and action is taken to further protect waters
when needed. This management already exists in
Alaska.
A Tier 3 designation goes much further than our
already exemplary water quality protections, without
any added benefit to the environment but with added
threats to economic and community activity.
Specifically, any activity that has the potential to
degrade a designated Tier 2 water and its tributaries
could be prohibited. A designation would impact the
users such as motorized vessels of any kind,
residential and commercial septic systems, stormwater
permits associated with road building, seafood
processors, timber harvesting, and much more.
Tier 3 water designations have the potential to become
a tool for anti-development interests to block or
delay resource development projects. That is evident
in the five nominations before DEC currently, which
specify mining, oil and gas, federal land planning,
and Alaska Native Corporation lands selections as
threats to waterbodies.
Further problematic, a Tier 3 water designation
applies "to a Tier 3 water or tributary to a Tier 3
water." This expansive designation means that it
would prohibit development in entire watersheds of
Alaska essentially comparable to establishing de-
facto Wilderness, akin to a national park or other
expansive conservation area. For this reason, we
believe the authority to designate a Tier 3 water
should therefore lie solely with representatives of
Alaskans - the Alaska Legislature, similar to Congress
having the authority to designative federal areas as
national parks or Wilderness.
Because of the watershed-wide land and water impacts
of a Tier 3 designation, it is no different than the
impacts of the 12 million acres of legislatively-
designated State refuges, sanctuaries, critical
habitat areas, ranges, special management areas,
forests, parks, recreation areas, marine sanctuaries
etc. All of these designations are made by the
Legislature. Just as the Legislature made those
designation, so too should the Legislature make Tier 3
designations and not the EPA.
To do so, the State needs a policy and statutory
authority in place. The Alaska Department of
Environmental Conservation existing policy agrees that
Tier 3 designations should be made by the Legislature.
Former DEC Commissioner Larry Hartig, in the
Walker/Mallott Administration, submitted a letter to
the Senate in November 2018:
"DEC recently updated its internal guidance to advise
DEC employees who might receive a nomination of a
water for Tier 3 designation on how to deal with that
nomination. This guidance provides that the current
process for nominating Tier 3 waters involves
proposing the introduction of legislation to make the
designation. Any such requests would need to go to a
member or committee of the Legislature to be
considered for introduction. DEC has reviewed this
guidance with EPA and they confirmed what we have put
in place satisfies Clean Water Act requirements for
antidegradation implementation."
In short, SB 72 is a housekeeping measure to implement
and codify existing DEC policy. Enactment would meet
EPA's Tier 3 designation process requirement and
provide process certainty to the public.
We believe that, given the significant, adverse,
watershed-wide land and water use impacts and socio-
economic impacts of Tier 3 designation, a Tier 3 water
should be designated ONLY by a vote of the
Legislature. This is consistent with the Alaska
Constitution, the existing process for setting aside
areas of State land and water from development, and
existing DEC policy. For these reasons, we urge you
to move this bill from committee and support it to
statute.
Thank you for the opportunity to testify today in
support of SB 72.
4:04:52 PM
CO-CHAIR BISHOP asked her to send her testimony to his office
and he would distribute it to the members.
MS. KIMBRELL indicated she would do so.
CO-CHAIR BISHOP held SB 72 in committee.