Legislature(2015 - 2016)BUTROVICH 205
02/15/2016 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Board of Game | |
| SB163 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 163 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 163-NATL. RES. WATER NOMINATION/DESIGNATION
4:03:28 PM
CHAIR GIESSEL called the meeting back to order and announced
consideration of SB 163, a bill proposed by the administration
related to water reservations.
MICHELLE HALE, Director, Division of Water, Department of
Environmental Conservation (DEC), Juneau, Alaska, said SB 163
does two things. It makes it clear that only the legislature has
the authority to designate what is known as an Outstanding
National Resource Waters (ONRW) in the State of Alaska.
Secondly, it describes the process that will be used to collect
nominations for those waters and additional information, and
then forward those for consideration to the legislature.
She explained that ONRWs receive the maximum level of protection
under the federal Clean Water Act (CWA) that requires states to
have two things: an anti-degradation policy and anti-degradation
implementation methods. The State of Alaska has had an anti-
degradation policy on the books since 1997. Its draft anti-
degradation implementation methods were developed in 2010. Those
are required by the implementing regulations of the CWA, but in
part, the state also developed those because it was sued for not
having them.
MS. HALE said the department had gone through a process to
develop implementation methods in regulation and those were
publically noticed in 2014. Due to the volume of comments
received on those regulations, they went back out for further
public meetings in 2015.
One element of those regulations is the requirement for a method
to nominate and designate Tier 3 waters. She reiterated that
Outstanding National Resource Waters are waters that receive the
highest level of protection under the CWA. Once a designation of
a Tier 3 or ONRW is made, no additional pollutants can be added
to those waters, except for limited or temporary degradation.
Limited or temporary might be construction storm water that is
generated when someone is building a lodge on a river that
received that designation.
MS. HALE said the real crux of the ONRW issue is that no
permanent additional pollutants can be added to those waters,
which means, for example, if there is a town on a river that
becomes an ONRW and they discharge waste water into the river,
they can continue to discharge waste water, but if the town
grows, the discharge can't be increased. A seafood processor on
that river would not be able to start seafood processing if they
discharge waste into the river. Similarly, mining operations on
the river or on tributaries to the river would not be able to
discharge waste water into that river if it increased the
pollutant load at all. So, the designation of an ONRW, in a
sense, almost becomes a defacto land use decision.
MS. HALE said the requirement of the CWA is not that states
designate ONRWs, but just that they have a process for doing so.
That is what she is here today to talk about. This bill says
simply that the legislature will make that designation, not the
agency.
During the regulatory process when they were working on draft
regulations, in addition to receiving a lot of comments on the
regulations, one thing was revealed as somewhat of an ambiguity
in terms of who has the authority to make that designation. In
looking at the Constitution, it appears that the legislature
makes land use designations. AS 46.03.080 gives the agency the
authority to make water quality standards decisions including
water classifications. Because of that potential ambiguity, they
believe it is very important to make it very clear that it is
the legislature, and the legislature alone, that will make that
designation.
In addition, the legislature has a much broader authority to do
far more than just Tier 3 designations; it can create special
management areas and state parks. If DEC were to make that
designation, they would make the Tier 3 designation but not have
the ability to do other things. DEC does have the ability to
make sure that water quality is maintained through applying
water quality standards to discharge permits.
4:09:40 PM
She said that DEC has received ONRW application for three
different waters in the State of the Alaska: one is the Chilkat
River near Haines, another is the Koktuli River west of Lake
Iliamna, and the other is the entire Bristol Bay Watershed. The
department is not acting on those right now because of the
ambiguity in authority, but a process is required at some point
for designating those whether they are designated or not.
4:10:15 PM
SENATOR WIELECHOWSKI asked if the language the department was
relying on was Article 8 of the Constitution, Section 7, Special
Purpose Sites.
MS. HALE answered yes, along with Section 2.
SENATOR WIELECHOWSKI asked if she had an opinion from the
department's attorneys.
MS. HALE answered that they don't have a formal opinion, but
bits of different opinions from different attorneys that have
viewed this.
SENATOR WIELECHOWSKI said he thought this issue hinges on the
question of whose authority it is, is it the legislature's, or
the DEC's. It would be a good idea to get a final decision on
what that is.
CHAIR GIESSEL said they will follow up on that.
SENATOR STEDMAN remarked that if something as broad as the
Bristol Bay Watershed or the watershed of Southeast Alaska is
designated ONRW one could virtually shut down the entire state.
MS. HALE responded that there are broad implications to an
actual designation. The concern is not just the water bodies
themselves, but the tributaries to those water bodies. The
C.F.R. reads that the water quality in a Tier 3 or ONRW must be
maintained and protected. So, if there was an activity on a
tributary that then impacted the water that becomes designated
so that it's not maintained, then that activity would also not
be allowed.
4:13:23 PM
SENATOR STEDMAN said the Chena River in Fairbanks, as an
example, has some fish in it and a hatchery. If it had that
particular designation, would that designation flow all the way
down to the ocean?
MS. HALE answered that it is possible to nominate and designate
segments of waters, and he didn't think that just because a
segment of a river is nominated that the nomination would then
flow downstream. Of more concern would be the upriver activities
that might result in the water quality in that segment not being
maintained and protected.
SENATOR STEDMAN asked her how this designation would be removed
by whoever has final authority.
MS. HALE replied that Code of Federal Regulations (C.F.R.) Part
131.12 that talks about the necessity of having a process for
designating these waters does not describe any process for
removing a designation, and she couldn't find an example of one.
The idea is that this is a permanent designation. She hadn't
found any court cases where somebody tried to remove the
designation. She emphasized that they are not talking about
actually doing designations; the requirement is to have a
process for designating.
SENATOR MICCICHE said he had just read through AS 46.03.080 that
talks about the department having the authority to classify
waters, and asked if he misunderstood something in her initial
statement about the statute.
MS. HALE answered the department has always read that segment of
its statutory authority as having the ability to classify
waters, which they do under water quality standards. They do not
believe the intent when that statute was passed was to actually
classify them in terms of an ONRW.
SENATOR MICCICHE said he didn't look at the legislative intent
and asked if the department thinks there is a bar it couldn't
reach and suddenly the responsibility shifted to the
legislature.
MS. HALE answered the DEC has never read that statute to mean it
would be able to designate ONRWs. They have read it to mean that
the department can set water quality standards, which it does,
and can classify waters, which it does through a regulatory
process. By "classifying waters" she means classifying a water
for a certain use, for example, this water can be used for
drinking and swimming, and not doing this designation of ONRW.
That was pointed out and that is where lies part of the
ambiguity. Draft regulations that were publically noticed in
2014 culminated with the legislature actually making the
designations. So, even at that time the agency wasn't proposing
to make that designation.
4:18:05 PM
SENATOR STOLTZE asked if any vendors had been consulted in
developing this legislation and if they have an opinion.
MS. HALE answered yes; they have been doing considerable
outreach to affected industries and to some of the NGOs that
have a lot of interest in the subject, and it's fair to say that
some are very supportive of this and others think the bill needs
more clarification. Of the environmental NGOs, while some are
worried about the legislature being the body that makes the
designations, others are very pleased to see the transparency
and the public process that would be involved.
SENATOR STOLTZE said he has tried to get the normal up or down
response from industry, but he was just getting a lot of
caution, "an amber alert."
4:20:01 PM
MS. HALE responded that the department has done outreach and had
some conversations "wondering if we should add more clarifying
language to the legislation" and it is working with those
members of industry now.
SENATOR COGHILL said it looks like she is talking about the
state's authority on national parks, wildlife refuges, and water
that are protected and how they would be nominated under this
C.F.R. It really becomes a land use decision, which properly
should involve the legislature. He asked if DNR's Division of
Mining, Land and Water has had any input.
4:22:20 PM
MS. HALE answered that DEC had been communicating quite a lot
with DNR, because one of the questions that has arisen is if
water rights are being considered when they look at this
possible designation.
SENATOR COGHILL said they should get DNR's perspective and that
maybe this is a co-management issue. He didn't understand the
criteria for the designation part, but it could be one of the
key elements of that issue, and all managers should be a part of
it.
MS. HALE agreed that the criteria for ONRW designation are very
broad and if an attempt is made to define what they are, it
would be very hard to satisfy all the possibilities. One of the
things the bill does in the definition of an ONRW is says water
that "the legislature decides is important, unique, or
ecologically significant."
She said Washington, Oregon, Idaho, and Nevada have not
designated any ONRWs; Montana has designated all waters in
national parks as ONRW. California has two ONRWs: Lake Tahoe and
Mono Lake (an alkaline hypersaline lake in a closed basin). So,
in talking about criteria, one can't mention high water quality
for example, because Mono Lake is very saline. It doesn't really
meet any kind of easy criteria for defining. That is one reason
the criteria are kept quite broad and language gives the
legislature the authority to actually make that decision.
SENATOR COGHILL said he was concerned the department will come
to the legislature and say you have to do this because federal
law requires it. He is just suspicious.
MS. HALE assured him that the department would not do that. It's
their responsibility to make sure a process is there, and then
it is up to the legislature to follow that process or not.
CHAIR GIESSEL said page 2 of the DNR fiscal note states that
their fiscal impact could be significant should an ONRW be
nominated.
SENATOR WIELECHOWSKI said that is his point. The fourth
paragraph on that page of the fiscal note says: "Under the bill,
the land or water use application adjudication processes could
become more complicated." And the first paragraph says: "could
be significant should an ONRW be nominated and subsequently
designated by the legislature and later signed into law." The
department's interpretation is that it's for the legislature to
decide, which he assumed would mean they would pass a
resolution, which would not be signed by the governor. Because
if the constitution says it's up to the legislature, he didn't
know that they would involve the executive branch at that point.
MS. HALE responded that she didn't have that level of knowledge
of the exact process the legislature would go through.
SENATOR WIELECHOWSKI requested that in writing, because if their
interpretation is it's the legislature's authority, it seems
that would be said in a resolution as opposed to a bill.
MS. HALE said she will follow up on that.
SENATOR WIELECHOWSKI asked her to flesh out the fiscal impact
more as well as how the Mining, Land, and Waste Use application
process could become more complicated.
MS. HALE said she would work with the DNR on that. There are
certainly potential fiscal consequences to a designation and
that is different than a nomination. They have three nominations
now.
4:28:42 PM
SENATOR COSTELLO said her concern has to do with how the bill
was written. The most public deliberative process is the
legislative process, and it is the only public process. She
thinks of it in terms of how her constituents come to her with
bill ideas without any pre-legislative process. She sees the
nomination process and reporting as adding a layer that may
easily become politicized. She also wanted to know the rationale
for everything beyond line 8 in the bill.
MS. HALE answered the implementing regulations of the CWA
require that citizens are able to nominate waters. That is where
the nomination comes from. The idea of DEC then forwarding a
report to the legislature would just be providing that
information to the legislature, and the idea of DEC having a
public notice period of those nominations is so that people who
are in the area of a nominated water body have the ability to
provide additional information and opinions to the legislature.
That is the idea behind the report.
SENATOR COSTELLO said thinking through how this would play out,
it sounds like the nomination, itself, would begin a community
input process and then the legislature may or may not introduce
a resolution or some bill to make that so.
MS. HALE answered that is correct.
SENATOR COSTELLO said it sounds like they are actually starting
the legislative process early and that a bureaucracy would be
required to manage all of these comments. She asked if other
states have just simply given the legislature this authority.
MS. HALE answered that the proposed process is actually a very
light process in terms of bureaucracy. The agency would not be
reviewing this material; it would collect the material and
forward it on to the legislature. Two other western states have
the legislature making the decision: she believes they were
Idaho and Montana. In both of those cases there is more process
before the information comes to the legislature. A lot of states
have a board or a commission actually review the material and
then make a recommendation; some states have a board or
commission actually make the designation.
SENATOR COSTELLO asked if the Bristol Bay Watershed is
nominated, if the department would get much comment from the
public.
MS. HALE responded that yes, the department may get a lot of
comments, but unlike comments they receive on draft regulations
or on a permit, they would not be putting together a response to
comment. They would pull the comments together and forward them
to the legislature. The idea is for minimal bureaucracy being
attached to that.
SENATOR STOLTZE said he would really like to hear someone of DNR
Commissioner Myers' stature explain the consequences. He knows a
lot about what constitutes "light processes of bureaucracies" in
trying to promote economic development.
CHAIR GIESSEL said he should not worry; this is not the only
hearing of SB 163.
4:36:38 PM
SENATOR MICCICHE continued on with Senator Costello's questions
and said there is a process today for nomination. If DEC were to
process the nomination for designation, the bureaucratic process
wouldn't change. It's just that instead of the department
adjudicating a designation, the legislature would be the final
say in adjudication. Is that correct?
MS. HALE responded that the department doesn't have a process
for adjudicating a decision on a nomination. They don't have a
process for the nomination; they just receive nominations.
SENATOR MICCICHE remarked that he found it interesting that
states that have become increasingly more environmentally active
like Washington, Oregon, and Idaho, do not have any designated
ONRWs.
MS. HALE said that is correct and added that Nevada also has no
ONRWs designated yet, although they have special statuses for
waters. One of the reasons they don't have any ONRWs is because
of the magnitude of the consequences of the decision.
SENATOR MICCICHE said another state that is less environmentally
active has 22 ONRWs and asked what types of water they have
designated.
MS. HALE asked if he was talking about Arizona.
SENATOR MICCICHE answered yes.
MS. HALE said she didn't know the precise nature of the waters
that have been designated there, but in Montana, all National
Park waters are designated ONRWs.
SENATOR MICCICHE asked if Washington, Oregon, and Idaho have a
process and have just not used it and what bodies of water
Arizona has designated. He also asked what the criteria would
look like for the legislature to use in designating a Tier 3
water body.
4:39:37 PM
MS. HALE answered that Washington, Oregon and Idaho do have
processes for designating waters; they just haven't done it. She
will follow up on the 22 Arizona water bodies. The criteria can
be very broad; for instance, a special hot spring could be
designated as an ONRW and then it becomes very difficult to come
up with precise criteria. That is why the criteria is left to
the legislature.
SENATOR MICCICHE said he is interested in reviewing the criteria
and process in Washington, Oregon and Idaho, and the Arizona
water bodies.
MS. HALE said she would get that information to him.
SENATOR COGHILL asked how the Environmental Protection Agency
(EPA) views nominations under C.F.R. Part 131.12. Does it put an
immediate restriction on anything?
MS. HALE answered that a nomination doesn't put any restrictions
on that water, but a designation does. She said that comment was
received on draft regulations in 2014, and they planned on
putting some clarifying language in the final regulations that
will be publically noticed in 2016.
SENATOR COGHILL said Section 2 of C.F.R. Part 131.12 talks about
how water quality shall be maintained unless the state finds
"after full satisfaction of the inter-governmental coordination
and public participation provisions of the state's continuing
planning process," and asked if the legislature would get
overruled if they do a statute.
MS. HALE replied that she didn't fully explain all of the three
different tiers; she talked mostly about Tier 3 waters. Item 2
that he is talking about really describes Tier 2 waters, which
are waters that are of higher quality than the water quality
criteria. Most of the waters in the State of Alaska are already
high quality waters. When doing a permitting action, the
department has to make certain conclusions to satisfy anti-
degradation, and that is what item 2 refers to.
In terms of being overruled, Ms. Hale said the EPA is watching
the process Alaska is going through in developing its anti-
degradation implementation methods, as it is following other
states. EPA has worked very closely with DEC and is pleased
overall with where department is going.
SENATOR COGHILL said his confusion was that he read all of
C.F.R. Part 131.12 and didn't make the connection between
Sections 1, 2, and 3. He suggested putting Section 3 on line 7
when they look at the law.
MS. HALE said she should have made it clearer.
SENATOR WIELECHOWSKI asked her to explain what would happen if
the Kenai River was designated. What would that mean for the
users and would that impact the ability to have boats on it?
4:45:09 PM
MS. HALE answered that question has come up a lot, as the
Chilkat River in Haines has been nominated. In general, it does
not mean that boats can't go up and down the river; people can
keep fishing. When the river is frozen, one can still snow
machine on it. Specifically, it means that pollutants from a
point source discharge into the river cannot be increased.
SENATOR WIELECHOWSKI asked her to define an increase in
pollutants. Would drops of fuel from a boat be an increase in
discharge?
MS. HALE said a "point source discharge" is one from a waste
water treatment plant, for instance. The type of pollution
Senator Wielechowski is referring to - little drops of gasoline
from an engine - is a "nonpoint source discharge" and the
department wouldn't be regulating those. But if there was a
problem with water quality on that river and the state,
including all the resource agencies, wanted to address that
problem, they might do something like the two-stroke ban that
went in place on the Kenai River, but that is not part of the
Tier 3 process. It would be part of the department's over-
arching water quality management process.
SENATOR COSTELLO asked her to point to where she, as a state
legislator, has the authority to vote on a measure that would
create an ONRW. Isn't that the power of Congress?
MS. HALE answered that it is a matter of semantics. EPA calls
them Outstanding National Resource Waters. Some have suggested
that rather than using that term they use Outstanding State
Resource Waters, and some states do. Other states use
Outstanding Resource Waters. So, it really is a matter of
semantics. The language in this bill is from the implementing
regulations of the Clean Water Act, but they don't have to use
that term.
SENATOR COSTELLO asked if one legislature can't bind another,
why is there such an importance placed on the process to get
into the Tier 3 category, and no provision for a future
legislature to rethink and perhaps take one off. Why would the
legislature tie its hands in that regard?
4:49:11 PM
MS. HALE responded that the C.F.R. paragraph 3 describes the
need for a process to designate; it's silent on a process for
un-designating and she is not aware of any ONRW that has been
undesignated.
SENATOR COGHILL said they should consider having a process for
un-designating in this law. He also pointed out that "any
resident may" could mean any resident of Alaska or any citizen
of the United States.
MS. HALE replied that their intent is a resident of the State of
Alaska.
SENATOR COGHILL asked if that should be a PFD-qualified
resident.
MS. HALE responded that a statute actually describes "resident"
and "person," and "person" can include an organization if it is
within the state. Those terms could be clarified if needed.
SENATOR COGHILL asked if the requirement is "you shall under
this law accept the nomination" follows through with the C.F.R.
MS. HALE answered yes; a process is needed for nomination and a
process is needed for designation.
SENATOR COGHILL said they should at least test the EPA on having
a process for un-designating.
CHAIR GIESSEL agreed. She wondered what would happen if they
designate a particular water way and then a community forms
upstream and they have no ability to put in a waste water
treatment plant or a mine.
4:52:27 PM
SENATOR MICCICHE said it looks like this process is being set up
to significantly reduce the likelihood that an ONRW would ever
be formed in the State of Alaska. It would be far less likely
with legislative approval than with agency approval. He asked if
that is a fair assumption.
MS. HALE said she had heard that, but didn't know if it is a
fair assumption.
SENATOR WIELECHOWSKI asked if the legislature or the
administration doesn't do anything, does the EPA have a penalty.
MS. HALE replied that she was not aware of a penalty, but the
greater risk might be of additional litigation. It's a
requirement that the state needs to meet at some point.
CHAIR GIESSEL said that three water ways or watersheds had been
discussed, and all can identify development opportunities that
exist on them and this is of great concern. She held SB 163 in
committee for later discussions.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Resume-Guy Trimmingham.pdf |
SRES 2/15/2016 3:30:00 PM |
Board of Game Appointments |
| SB163 ver A.PDF |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB 163 Supporting Documents - Transmittal Letter to Senator Meyer 1.28.2016.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Fiscal Note DEC-WQ-12-30-15.PDF |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Sponsor Statement.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Supporting Document - FAQs.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Fiscal Note-DNR-MLR-02-15-2016.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |