Legislature(2001 - 2002)

02/21/2002 09:36 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
     SENATE BILL NO. 140                                                                                                        
     "An Act relating to  regulation and licensing of certain water-                                                            
     power development projects."                                                                                               
                                                                                                                                
                                                                                                                                
DARWIN PETERSON,  staff to Senator  Torgerson read a statement  into                                                            
the record as follows.                                                                                                          
                                                                                                                                
                th                                                                                                              
     In the 106   Congress, Senator Murkowski  sponsored Senate Bill                                                            
     422  amendment  the Federal  Power Act  to provide  for  Alaska                                                            
     state  jurisdiction  over small  hydroelectric  projects.  This                                                            
     legislation  transferred  to  Alaska,  and  only the  state  of                                                            
     Alaska, licensing  and regulatory authority over  hydroelectric                                                            
     projects that are 5,000 kilowatts or less.                                                                                 
                                                                                                                                
     Bringing  this regulatory authority closer to  home will reduce                                                            
     the great  time and expense associated  with federal  licensing                                                            
     and regulation of  small hydro projects in Alaska. The time and                                                            
     money  required for federal licensing  is virtually  prohibited                                                            
     for some small utility and personal projects.                                                                              
                                                                                                                                
     Before  Alaska  can acquire  jurisdiction  from  FERC  (Federal                                                            
     Energy  Regulatory Commission),  the  Legislature must  approve                                                            
     this  bill and the  Governor must submit  a program  satisfying                                                            
     FERC's  regulatory   requirements.  As  SB  140   is  currently                                                            
     drafted,  the  Regulatory  Commission of  Alaska  would be  the                                                            
     regulatory  agency responsible.  All the current environmental                                                             
     protections  required under  federal law  will still apply  and                                                            
     cannot be preempted by this legislation.                                                                                   
                                                                                                                                
Senator Wilken  referred to Section 1(b)(2)(E) on  page 2, line 9 of                                                            
the  bill  and questioned  the  necessity  of  the  language,  which                                                            
includes  "the interest of  Alaska Natives"  as one of six  criteria                                                            
that must be given  "equal consideration" in the establishment  of a                                                            
regulatory program.                                                                                                             
                                                                                                                                
Mr.  Peterson  referred  to the  set  of criteria  included  in  the                                                            
federal  enabling  legislation  [copy  on file]  that  Congress  has                                                            
established   the  state  must  meet   before  the  Federal   Energy                                                            
Regulatory Commission (FERC)  would authorize transfer of regulatory                                                            
authority to the state.  Included in this criterion, he pointed out,                                                            
the  interest  of Alaska  Natives  is specifically  listed.  He  was                                                            
unsure why  Congress chose this language,  but asserted that  by not                                                            
"mirroring  the federal  enabling  legislation,"  transfer could  be                                                            
denied.                                                                                                                         
                                                                                                                                
                                                                                                                                
SFC 02 # 13, Side B 10:24 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Senator  Wilken  understood  the need  for  this legislation  to  be                                                            
identical   to  the  federal  law;   however,  he  argued   that  no                                                            
consideration  is  given  to  the  private  landowner   unless  that                                                            
landowner  is  Alaska Native.  He  noted  the  other considerations                                                             
include protection  of the environment,  recreation activities,  and                                                            
energy  conservation   and  asserted  the  omission   of  landowners                                                            
represents  "a gap". He proposed that  additional language  be added                                                            
to  this  subsection  to  require  equal  consideration  for  nearby                                                            
residents and landowners.                                                                                                       
                                                                                                                                
Co-Chair Kelly  asked if "the interest of Alaska Natives  is defined                                                            
somewhere" that the Committee could reference.                                                                                  
                                                                                                                                
Mr.  Peterson was  unsure  but surmised  there  could  be a  process                                                            
contained elsewhere in  FERC regulations for addressing the interest                                                            
of landowners. He deferred to the next witness.                                                                                 
                                                                                                                                
WILL  ABBOTT,   Commissioner,  Regulatory   Commission  of   Alaska,                                                            
testified via  teleconference from Anchorage that  he could offer no                                                            
explanation  either.  He  stated   that  the  process  to  establish                                                            
regulations for this program would have to define the matter.                                                                   
                                                                                                                                
Co-Chair Kelly  clarified the process of adopting  regulations would                                                            
have  to consider  the interest  of Alaska  Natives,  and only  once                                                            
regulations  are adopted,  would those interests  be determined.  He                                                            
again asked if there is no definition already in place.                                                                         
                                                                                                                                
Mr. Abbott stated  that is his understanding, but  qualified he does                                                            
not have  definitive  knowledge because  the program  is new  to the                                                            
Regulatory  Commission  of Alaska (RCA).  He stated  that FERC  must                                                            
define the language,  pointing out the federal law  "leaves an awful                                                            
lot of  authority with FERC"  in that this  agency could approve  or                                                            
not approve, the state regulations.                                                                                             
                                                                                                                                
Co-Chair Kelly  was more concerned that a Native organization  or an                                                            
Alaska Native individual  could argue that a proposed project is not                                                            
in its best interest and  the project would be denied on that basis.                                                            
                                                                                                                                
Mr. Abbott  predicted such an argument  would be considered  equally                                                            
along with the  other criterion relating to mitigation  of wildlife,                                                            
the  environment,  and  etc.,  during the  process  of  licensing  a                                                            
hydroelectric project.  He stated the decision would then be made by                                                            
the RCA.                                                                                                                        
                                                                                                                                
Co-Chair  Kelly remarked  that an African-American,  a Filipino,  or                                                            
white person  would not have the same  input. He commented,  "Sounds                                                            
like Alabama 1952 in reverse."                                                                                                  
                                                                                                                                
Senator Olson  informed there is a  federal definition of  "interest                                                            
of  Alaska  Natives".   He  understood  Senator  Wilken's   concerns                                                            
regarding  landowners,  but  ascertained  other issues  beside  land                                                            
ownership are involved.                                                                                                         
                                                                                                                                
Senator  Ward  shared  that  initially,  he approved  of  the  equal                                                            
consideration  granted to Alaska Natives.  He asked if shareholders                                                             
          th                                                                                                                    
of the  13  Region  of the Alaska  Native Lands  Claim Act  (ANLCA),                                                            
those Alaska  Natives who do not reside  in Alaska, are included  in                                                            
this provision.                                                                                                                 
                                                                                                                                
Mr.  Abbott  guessed  the  criteria  would  apply  to  those  Alaska                                                            
Natives, but stressed that  all parties would have an opportunity to                                                            
comment  during  the licensing  process.  He  stated that  how  much                                                            
weight  is given  to each  argument  would be  the  decision of  the                                                            
Commission.                                                                                                                     
                                                                                                                                
Senator  Ward asked if  a project  were challenged  by any of  these                                                            
shareholders,  as not in their best  interest, whether Alaska  would                                                            
be in violation of federal law if the arguments were ignored.                                                                   
                                                                                                                                
Mr. Abbott predicted this could be the case.                                                                                    
                                                                                                                                
Senator Ward asked  if SB 140 could be "corrected"  to eliminate the                                                            
potential for "non-residents controlling resources in Alaska."                                                                  
                                                                                                                                
Mr. Abbott replied  that how much weight is given  to each criterion                                                            
could be considered.                                                                                                            
                                                                                                                                
Senator Ward  interjected he did not  want the specific interest  of                                                            
this group of people given  any weight because they do not reside in                                                            
Alaska.                                                                                                                         
                                                                                                                                
Co-Chair  Donley  wanted  a  sense  of the  amount  of  power  5,000                                                            
kilowatts generates. He  requested an example of the diesel turbines                                                            
that supply the City of Bethel.                                                                                                 
                                                                                                                                
Mr.   Abbott  responded   the   Bethel   facility   is  larger.   He                                                            
characterized a 5,000 kilowatt  project as "relatively small, run of                                                            
the river-type"  containment dam "with  a pipe coming down  into the                                                            
turbines" but no large  dam behind.  He gave a project by Lake Clark                                                            
as an  example, noting  it provides  the villages  of Illiamna,  New                                                            
Haven and Nondalton  with approximately  two-thirds of their  power.                                                            
Another  example, he  noted, is near  Haines and  would augment  the                                                            
Goat Lake Hydroelectric Power source for Skagway and Haines.                                                                    
                                                                                                                                
Co-Chair Kelly  referenced data included in the member's  bill files                                                            
lists several such projects [copy on file].                                                                                     
                                                                                                                                
Co-Chair Donley  asked if the term  "five megawatt" originates  from                                                            
the federal legislation.                                                                                                        
                                                                                                                                
Mr.  Abbott   affirmed  and  noted   five  megawatts  is   the  same                                                            
measurement as 5,000 kilowatts.                                                                                                 
                                                                                                                                
Co-Chair Donley next asked  if five megawatts is the maximum size of                                                            
a project that  would qualify for  this program, whether  there is a                                                            
minimum size  requirement that would  provide that smaller  projects                                                            
are exempt from these regulations.                                                                                              
                                                                                                                                
Mr. Abbott answered no,  that all projects less than 5,000 kilowatts                                                            
are included in the federal law.                                                                                                
                                                                                                                                
Co-Chair  Donley asked  if there  are provisions  for exempting  any                                                            
projects from regulation.                                                                                                       
                                                                                                                                
Mr. Abbott said there are not.                                                                                                  
                                                                                                                                
Co-Chair Donley  next asked the status of federal  regulatory reform                                                            
legislation under congressional consideration.                                                                                  
                                                                                                                                
Mr. Abbott did not know the status.                                                                                             
                                                                                                                                
Co-Chair Donley  asked if SB 140 or the federal enabling  act allows                                                            
the  RCA  to  modify  its  regulations   in  the  event  the  reform                                                            
legislation  is adopted in order to  "lessen the regulatory  burden"                                                            
on the public.                                                                                                                  
                                                                                                                                
Mr. Abbott  responded the  federal enabling  legislation contains  a                                                            
provision to allow the  RCA to modify regulations with approval from                                                            
FERC.                                                                                                                           
                                                                                                                                
Senator  Olson clarified  that currently FERC  approval is  required                                                            
for a  one-kilowatt hydroelectric  project,  such as those  found in                                                            
mining sites that provide power for only one or two residents.                                                                  
                                                                                                                                
Mr.  Abbott was  only  familiar  with the  recent  federal  enabling                                                            
legislation.  He  reiterated  the  RCA  must consult  with  FERC  to                                                            
determine the perimeters of the state authority.                                                                                
                                                                                                                                
Senator Olson asked if  miners operating small systems are currently                                                            
in violation.                                                                                                                   
                                                                                                                                
Mr.  Abbott   again  noted  the  projects   are  still  under   FERC                                                            
jurisdiction and that he was unfamiliar with specifics.                                                                         
                                                                                                                                
Co-Chair Donley  noted Congress occasionally  exempts hydroelectric                                                             
projects from FERC regulations  primarily because a local government                                                            
owns them. He asked if  there are any exemptions in the proposed RCA                                                            
program.                                                                                                                        
                                                                                                                                
Mr.  Abbott  affirmed  there  currently  are  such  exemptions,  but                                                            
informed this legislation  does not address the matter and that this                                                            
is another issue to be determined with the FERC.                                                                                
                                                                                                                                
Co-Chair Kelly  commented that locally  owned projects regulated  by                                                            
the RCA are exempt.                                                                                                             
                                                                                                                                
Co-Chair Donley  corrected that some are exempt but  others are not.                                                            
                                                                                                                                
Co-Chair Donley  understood the policy is straightforward  regarding                                                            
privately owned  systems, but that  policy differs when government-                                                             
owned systems  are involved.  He wanted  consideration for  possibly                                                            
reducing the amount of regulations for government-owned systems.                                                                
                                                                                                                                
Senator  Green  asked  if  this  legislation  should  reference  the                                                            
federal enabling  statute, so that  in the event regulatory  reforms                                                            
are enacted,  the RCA  regulations would  be amended automatically.                                                             
She said this would eliminate  the need for the regulatory amendment                                                            
process each time the federal laws are changed.                                                                                 
                                                                                                                                
Mr. Peterson responded  this would be acceptable.  He noted the only                                                            
action necessary to enact  this program is a state statute providing                                                            
for the transfer of this authority from FERC to the RCA.                                                                        
                                                                                                                                
Senator Wilken informed  that a five-megawatt plant is one-forth the                                                            
size of the power plant  located on the Chena River in Fairbanks. He                                                            
calculated  a five-megawatt  system would  provide enough energy  to                                                            
power 50,000  100-watt light bulbs.  Therefore, he predicted  future                                                            
projects could be larger then the Committee understood.                                                                         
                                                                                                                                
Mr. Peterson stated there  are currently 53 proposed projects in the                                                            
permit application  process. Of those projects, he  said, 42 are for                                                            
projects five megawatts or less.                                                                                                
                                                                                                                                
Senator Ward asked if current  regulations apply to small electrical                                                            
generating  operations on mining  claims that  do not sell  power to                                                            
others.                                                                                                                         
                                                                                                                                
GARY PROKOSCH,  Water Resources  Section,  Division of Mining,  Land                                                            
and  Water,   Department   of  Natural   Resources,  testified   via                                                            
teleconference  from Anchorage that FERC allows exemptions  for many                                                            
small  projects  in  Alaska,  including  the  example  Senator  Ward                                                            
provided.                                                                                                                       
                                                                                                                                
Senator Ward asked  if the new program would remove  the exemptions.                                                            
                                                                                                                                
Mr. Prokosch  replied that  if this law passed,  the small  projects                                                            
would  be regulated  by  the  state  RCA rather  then  under  direct                                                            
supervision  of FERC.  He surmised  the  implementation regulations                                                             
could include exemptions.                                                                                                       
                                                                                                                                
Senator Ward expressed that Senator Green's comments are valid.                                                                 
                                                                                                                                
SALLY SADDLER, Business  Development Specialist/Legislative Liaison,                                                            
Division of International  Trade and Market Development,  Department                                                            
of Community and  Economic Development testified in  Juneau and read                                                            
talking points as follows.                                                                                                      
                                                                                                                                
     ·    Bill calls for RCA to adopt regulations, licenses and                                                                 
          regulate  water power plants of 5 mw or  less, essentially                                                            
          creating  a state version of the Federal Energy Regulatory                                                            
          Commission  program.  We  believe  RCA is  an appropriate                                                             
          agency  to  assume  these  duties.  It does  represent  an                                                            
          expansion  of their current mission, and accordingly costs                                                            
          are  outlined in  our fiscal note  and in fiscal  notes of                                                            
          other agencies.                                                                                                       
     ·    Administration has an interagency team (Department of                                                                 
          Natural  Resources, Department of Fish  and Game, CZM, RCA                                                            
          and  Department  of Community  and  Economic Development)                                                             
          analyzing  the bill. Want to share today the common points                                                            
          emerging from our review.                                                                                             
     ·    We believe development of small hydro projects can                                                                    
          support    economic    development    and   improve    the                                                            
          availability/cost  of power in rural Alaska. We understand                                                            
          a  state program  may have  advantages  in allowing  us to                                                            
          focus the process on issues pertinent to Alaska.                                                                      
     ·    When federal legislation was pending, the Governor                                                                    
          supported  giving  Alaska jurisdiction.  At the same  time                                                            
          the   Governor   recognized   that  this   is  a   complex                                                            
          undertaking  and we must  be sure a state program  results                                                            
          in  proper design and construction,  and at the  same time                                                            
          protects  fish, wildlife  and the environment at  least as                                                            
          well,  or as rigorously,  as does FERC. The Governor  also                                                            
          acknowledged    the   importance   of   establishing    an                                                            
          appropriate  funding  mechanism  that  could  be either  a                                                            
          direct appropriation or be based on a user fee system.                                                                
     ·    Each agency fiscal note (RCA, Department of Natural                                                                   
          Resources,  and Department  of Fish  and Game) assumes  it                                                            
          will  take  two years  to  develop regulations  that  will                                                            
          define  program  operations.  Once state  regulations  are                                                            
          recommended,  FERC must  approve our state program  before                                                            
          ceding authority to the state.                                                                                        
     ·    Costs of operating the program in FY 05 and beyond are a                                                              
          bit   more  difficult  to  estimate.  Agencies   currently                                                            
          understand  their  existing  role  with FERC  process  but                                                            
          expect  during  the  regulations  process to  outline  the                                                            
          additional  duties, statutes and regulatory authority they                                                            
          may  need  to  operate a  program  as  well as  FERC  (for                                                            
          example,  FERC  has jurisdiction  over  entire  watersheds                                                            
          while FG currently has oversight only of streambeds.)                                                                 
     ·    The State of Oregon currently has a hydro project program                                                             
          that  operates in addition to FERC for  all hydro projects                                                            
          in  that  state,  and  we  will  examine  their  extensive                                                            
          statutes  and regulations, as well as  work with FERC, for                                                            
          ideas.                                                                                                                
                                                                                                                                
Senator  Ward  asked  the witness  to  comment  on  Senator  Green's                                                            
suggestion.                                                                                                                     
                                                                                                                                
Ms. Saddler stated  she was not in a position to respond.  She noted                                                            
however,  that some regulations  in the existing  FERC program  "may                                                            
not be totally  appropriate for Alaska."  She understood  the intent                                                            
of this program  change is to "allow  us to focus on those  that are                                                            
Alaska  specific."  In adopting  state  regulations,  she  explained                                                            
projects in Alaska would  not be subject to all the FERC provisions.                                                            
                                                                                                                                
Senator Leman  expressed that the  state should have the  ability to                                                            
grant exemptions given that FERC currently does so.                                                                             
                                                                                                                                
Senator  Leman also questioned  the "equal  consideration"  language                                                            
discussed  earlier.  He  was  unsure  if  this  would  be  possible,                                                            
realistic  or appropriate.  He  noted the  provision  also does  not                                                            
allow consideration  of other interests  that could be involved.  He                                                            
presumed the  state statute could  allow for this and remain  within                                                            
the requirements of the federal law.                                                                                            
                                                                                                                                
Senator  Leman then  referenced the  general funds  included in  the                                                            
Department of Fish and  Game and the Department of Natural Resources                                                            
fiscal  notes and  asked if  federal funding  would  be provided  to                                                            
operate the program  or whether the only benefit is  the transfer of                                                            
oversight to the state.                                                                                                         
                                                                                                                                
Ms.  Saddler  responded  she  understood  the  RCA  would  have  the                                                            
opportunity to develop  regulations that could include consideration                                                            
for other interests, provided  these regulations "meet the intent of                                                            
the FERC regulations."  She was unsure  about the amount  of federal                                                            
funds available for this program.                                                                                               
                                                                                                                                
Mr. Abbott  explained  the current  process in which  FERC does  not                                                            
collect funds from the  applicant until the project is permitted and                                                            
begins to operate.  At this time, he detailed, a charge  is assessed                                                            
based  on  the  amount  of  kilowatts  produced.  He  assumed  these                                                            
revenues would  be allocated to the RCA. He noted  the program would                                                            
operate using  revenue generated from  completed projects,  although                                                            
it is unknown  how the program would  be funded before any  projects                                                            
are completed and supplying revenue.                                                                                            
                                                                                                                                
Senator  Leman asked  if no revenues  were generated  from  projects                                                            
proposed  but never  completed,  the  state would  subsequently  not                                                            
recover expenses incurred in the permitting process.                                                                            
                                                                                                                                
Mr. Abbott affirmed.                                                                                                            
                                                                                                                                
JACK  HESSION,   Alaska  Public  Water   Coalition,  testified   via                                                            
teleconference  from Anchorage and read a statement  into the record                                                            
as follows.                                                                                                                     
                                                                                                                                
     The  Coalition  includes  sport  fishing  groups, conservation                                                             
     organizations,  former  members of the  Alaska Water Board  and                                                            
     other individuals,  all of whom share an interest  in the sound                                                            
     management  and proper disposition  of Alaska's publicly  owned                                                            
     water resources.                                                                                                           
                                                                                                                                
     In  summary, the  Coalition strongly  opposes  enactment  of SB
     140,  which would establish  a state  hydroelectric  regulatory                                                            
     program  with  authority  to accept  license  applications  for                                                            
     hydroelectric projects  on state, private, and federal lands in                                                            
     Alaska, including  state and federal conservation system units.                                                            
     The  Coalition  supports  the continuation  of  Federal  Energy                                                            
     Regulatory Commission jurisdiction on all lands in Alaska.                                                                 
                                                                                                                                
      Impact on state and national conservation system units                                                                  
                                                                                                                                
     Under SB  140 a state license or exemption from  licensing in a                                                            
     national  conservation  system  unit would  be  subject to  the                                                            
     approval  of the Secretary of the Interior or  Agriculture, and                                                            
     licensing  conditions could be imposed. The provision  provides                                                            
     insufficient  protection for  the national conservation  system                                                            
     units, as a Secretary  favoring hydropower could be expected to                                                            
     endorse  projects  in  the units.  The  bill  does not  have  a                                                            
      similar provision for state conservation system units.                                                                    
                                                                                                                                
     Alaska   jurisdiction   over   projects  located   in   federal                                                            
     conservation  system  units would  be unprecedented;  no  state                                                            
     currently  has such jurisdiction.  Under the Federal  Power Act                                                            
     and   other  applicable   federal  law,   the  Federal   Energy                                                            
     Regulatory   Commission  does   not  accept  applications   for                                                            
     hydropower  projects located  within national  parks, wild  and                                                            
     scenic rivers, or  wilderness areas, all of which are closed to                                                            
     new hydropower development.                                                                                                
                                                                                                                                
     If a state  regulatory authority accepted license  applications                                                            
     for  hydropower projects  within these  national conservations                                                             
     system,   it  would  be  met   with  intense  controversy   and                                                            
     litigation  from citizens  determined  to protect the  purposes                                                            
     and  natural values  for which  these lands  were set aside  by                                                            
     Congress. With equal  determination, citizens would also defend                                                            
     state conservation  system units from destructive hydroelectric                                                            
     dams.                                                                                                                      
                                                                                                                                
     The State  should not assume the cost of hydropower  regulation                                                          
                                                                                                                                
     SB  140  would  establish  a  state  hydroelectric   regulatory                                                            
     program  within the  Regulatory  Commission of  Alaska for  the                                                            
     purpose of  licensing, re-licensing, exempting  from licensing,                                                            
     and regulating  hydroelectric  projects of 5 megawatts  or less                                                            
     on all  lands in Alaska, with  the exception of national  study                                                            
     rivers. The  new regulatory program would be  modeled after the                                                            
     licensing   requirements  of  the  Federal  Energy   Regulatory                                                            
     Commission  (FERC). To ensure that the state  program met these                                                            
     federal requirements,  the program would have to be approved by                                                            
     FERC.                                                                                                                      
                                                                                                                                
     Putting this state  regulatory program in place would require a                                                            
     professional staff  capable of matching FERC's expertise, and a                                                            
     substantial  annual  expenditure  of state  funds. Because  the                                                            
     federal   law  requires  the  state's  regulatory   program  to                                                            
     "…protect the public  interest, purposes…and the environment to                                                          
     the same extent provided  by the requirements for licensing and                                                          
     regulation  by [FERC],"  the State  would be  obliged to  spend                                                            
     approximately as much  on a regulatory program as FERC now does                                                            
     for its Alaska  regulatory responsibilities.  (Emphasis added).                                                            
     The State's  cost could even exceed FERC's if  state regulators                                                            
     accepted applications  for dams in national conservation system                                                            
     units.                                                                                                                     
                                                                                                                                
     To get a  realistic estimate of the cost of a  state regulatory                                                            
     program,  the Committee should consult FERC on  the cost of the                                                            
     Commission's Alaska regulatory program.                                                                                    
                                                                                                                                
     In  any  event,  we  question  whether  it is  in  the  State's                                                            
     interest  to take on a new and  costly responsibility  when the                                                            
     State is facing a  fiscal crisis and the Legislature is seeking                                                            
      to reduce, not increase, the cost of state government.                                                                    
                                                                                                                                
     Federal Energy Regulatory Commission                                                                                     
                                                                                                                                
     Expanding  an existing  state  bureaucracy such  as the  Alaska                                                            
     Regulatory  Commission, or creating  an entirely new  agency or                                                            
     division  in an existing department makes no  sense at all when                                                            
     licensing   of  hydroelectric  projects  is  being   completely                                                            
     administered  by FERC. The "small"  hydropower industry,  which                                                            
     was the  moving force behind  the federal law and now  supports                                                            
     SB 140,  has failed to show that  FERC's licensing process  for                                                            
     small hydro  is flawed or somehow fails to protect  the State's                                                            
     interest   in  hydropower  license  procedures.   The  industry                                                            
     complains of its costs  and the length of the FERC process, but                                                            
     to  our knowledge,  the  industry  has been  unable  to cite  a                                                            
     single instance  of an Alaska license application  being denied                                                            
     by the federal commission.                                                                                                 
                                                                                                                                
     Ironically,    the   Alaska    Rural   Electric   Co-Operative                                                             
     Association,  which supports SB 140, had some  kind words about                                                            
     the  existing  FERC process.  In  testimony before  the  Senate                                                            
     Resources  Committee's  February  8  hearing  on SB  140,  Eric                                                            
     Yould,  the Associations's Executive  Director, said  that "Our                                                            
     members  have taken  a certain  amount  of solace  in having  a                                                            
     third independent  body, FERC, with the ability  to stand up to                                                            
     the federal and state  agencies. We have found ourselves at the                                                            
     mercy of  the state agencies that sometime are  not friendly at                                                            
     all to the very notion  of hydro projects and make the lives of                                                            
     people  trying to do this quite  miserable." He said  that FERC                                                            
     is a "known"  and "trusted" entity that acts  as an independent                                                            
     arbiter.                                                                                                                   
                                                                                                                                
     His observations  bear on the  fundamental question  before the                                                            
     Alaska Legislature  as it considers SB 140: Given that the FERC                                                            
     process  is working  satisfactorily, should  the State  rush to                                                            
     replace it  and assume the financial burden now  carried by the                                                            
     federal government? We think the answer is clearly "no."                                                                   
                                                                                                                                
     Thus as  it considers SB 140,  we recommend that the  Committee                                                            
     and  the Legislature as  a whole apply  the adage "if  it ain't                                                            
     broke,  don't  fix  it."  FERC's program  is  not  broken;  the                                                            
     Commission  is  adequately carrying  out  the responsibilities                                                             
     assigned to it by Congress.                                                                                                
                                                                                                                                
     Furthermore, a state  takeover of FERC's responsibilities would                                                            
     amount  to a voluntarily  accepting an  unfunded mandated  from                                                            
     the federal government.  By contrast, other federal mandates to                                                            
     the  State are  accompanied by  substantial  federal funds,  an                                                            
     example of which is  the generous federal funding of the Alaska                                                            
     Surface  Mining Control and Reclamation  Act. Thus in  order to                                                            
     adequately  fund  a state  hydropower regulatory  program,  the                                                            
     Legislature   would  be  obliged  to  increase   overall  state                                                            
     spending,  or take the necessary  funds from other vital  state                                                            
     services  and  programs.   Neither  course  is  in  the  public                                                            
     interest.  Congress's offer of "small" hydropower  jurisdiction                                                            
     is an offer the State should politely but firmly refuse.                                                                   
                                                                                                                                
     In conclusion,  a state regulatory program would  likely result                                                            
     in  intense controversy  if hydropower  projects were  proposed                                                            
     for  units of  the  state and  national  conservation  systems.                                                            
     Because the  existing FERC licensing and regulatory  process is                                                            
     performing  satisfactorily  and at  minimum cost  to the  state                                                            
     government, it is  not fiscally prudent for the State to assume                                                            
     FERC's  responsibilities and  costs, particularly at  a time of                                                            
     major shortfalls in state revenues.                                                                                        
                                                                                                                                
     We recommend  that the Committee  take no further action  on SB
     140.                                                                                                                       
                                                                                                                                
     Thank you for considering our views.                                                                                       
                                                                                                                                
CHIP  DENNERLEIN, Director,  Division  of Habitat  and Restoration,                                                             
Department  of  Fish and  Game,  testified  he is  a member  of  the                                                            
interagency  team  referenced   by  Ms.  Saddler.  He  informed  the                                                            
Department of Fish and  Game is participating in this effort because                                                            
the management  and resolution of fish and wildlife  issues, both in                                                            
resource protection  and in public use, are "central  to the current                                                            
FERC process" as well as  central to this legislation. He stated the                                                            
intent  is  to establish  a  state  program  that  "effectively  and                                                            
efficiently hits the targets."                                                                                                  
                                                                                                                                
Mr. Dennerlein  pointed out Governor Tony Knowles  wrote Congress in                                                            
support of  the federal  enabling legislation  and "expressed  a few                                                            
conditions  on  funding"  including  "adequate  state  authority  in                                                            
legislation,"  a source  of  funding sufficient  to  ensure "a  real                                                            
program",  and  protection   of fish  and  wildlife   resources  for                                                            
Alaskans at least as well as the current process.                                                                               
                                                                                                                                
Mr.  Dennerlein  clarified  his remarks  "support  the  concept"  of                                                            
transferring regulatory authority to the RCA.                                                                                   
                                                                                                                                
Mr. Dennerlein noted no  hydropower projects proposed in Alaska that                                                            
have "passed the  basic economic analysis" have been  opposed by the                                                            
Department.  He listed a hydroelectric  dam on Kodiak Island  as one                                                            
major project that had potential impact on fish and wildlife.                                                                   
                                                                                                                                
Mr. Dennerlein  described  the duties of  FERC including  licensing,                                                            
economic analysis,  due diligence, independent review  and serves as                                                            
the "coordinating point  for all concerns." He continued, the agency                                                            
performs  monitoring and compliance  over the  life of projects,  as                                                            
well as  re-licensing  existing projects,  such  as those  involving                                                            
restoring salmon  runs in previously dry creek beds,  and ensure dam                                                            
safety.                                                                                                                         
                                                                                                                                
Mr. Dennerlein  instructed  on the application  process and  partial                                                            
exemptions  whereby the applicant  agrees to abide by the  "resource                                                            
agency  stipulations"  and full  exemptions "for  relatively  benign                                                            
projects that do not involve significant federal land interest."                                                                
                                                                                                                                
Mr.  Dennerlein   then   detailed  the   relationship  between   the                                                            
Department and  FERC to obtain necessary data for  the Department to                                                            
make decisions  relating to salmon spawning and hydrology.  He noted                                                            
the Department  "helps  frame questions"  for  environmental  impact                                                            
statements,  according  to the provision  in the  Fish and  Wildlife                                                            
Service  Coordination  Act. He  elaborated  on this  process  giving                                                            
examples  of determining  whether a proposed  project impacts  marsh                                                            
"where the Coho  are rearing" and watershed where  "the deer hunters                                                            
are concerned."                                                                                                                 
                                                                                                                                
Mr. Dennerlein then spoke  to the impacts of this legislation on the                                                            
Department   listing  front-end  costs,   the  permitting   process,                                                            
operating  expenses  of the  program,  participation  of the  Native                                                            
corporations  and other Native  organizations.  He opined that  more                                                            
work is necessary to avoid  an "unintended result." He qualified the                                                            
Department  supports small hydropower  projects, but stressed  there                                                            
are many  affected  parties in  such a  project, many  of which  are                                                            
competing.                                                                                                                      
                                                                                                                                
Senator Leman asked if  this legislation provides specific authority                                                            
to allow  for partial  and full  exemptions that  are comparable  to                                                            
those granted by FERC that the witness mentioned.                                                                               
                                                                                                                                
Mr. Dennerlein answered  it does. He indicated the decision would be                                                            
deferred to the Department.  He was unsure whether federal law would                                                            
allow the state to exempt a privately owned project.                                                                            
                                                                                                                                
Senator Olson  asked if this bill would make securing  a permit less                                                            
cumbersome for small operators and or seasonal users.                                                                           
                                                                                                                                
Mr. Dennerlein  answered, "That's  the million dollar question."  He                                                            
stated  the "state  is  uncertain  at this  moment."  He surmised  a                                                            
program could be "crafted", which could accomplish this.                                                                        
                                                                                                                                
Mr. Dennerlein  next addressed the fiscal note, stressing  it is not                                                            
possible to accurately  predict the cost of operating  this program.                                                            
He listed many variables  and suggested a consultant with experience                                                            
in this  matter  could be  retained. He  noted the  State of  Oregon                                                            
operates a similar program,  which could be a source for locating an                                                            
expert.                                                                                                                         
                                                                                                                                
                                                                                                                                
SFC 02 # 14, Side A 11:12 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Mr. Dennerlein  continued speaking  to the number of staff  required                                                            
to establish this  program, including a full-time  "team leader" and                                                            
staff from  the Department of Law,  Department of Fish and  Game and                                                            
Department of Natural Resources.                                                                                                
                                                                                                                                
Co-Chair Kelly ordered the bill HELD in Committee.                                                                              
                                                                                                                                

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