Legislature(2015 - 2016)BUTROVICH 205
03/16/2016 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB172 | |
| SB163 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 172 | TELECONFERENCED | |
| += | SB 163 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 163-NATL. RES. WATER NOMINATION/DESIGNATION
4:28:43 PM
CHAIR GIESSEL announced consideration of SB 163.
SENATOR COSTELLO moved to adopt proposed CSSB 163, version 29-
GS2916\H, as the working document.
CHAIR GIESSEL objected for an explanation and invited her staff
to explain the changes.
4:30:10 PM
AKIS GIALOPSOS, staff to Senator Giessel and the Senate
Resources Committee, Alaska State Legislature, Juneau, Alaska,
explained the changes in the CS. There are seven changes in
version \H as follows:
1. Page 1, Lines 7-9: Amends Section 1(a) by
prohibiting the Department of Environmental
Conservation from managing a water of the state as an
outstanding national resource water unless it has been
designated as an outstanding national resource water
by an act of the legislature.
2. Page 1, Lines 10-13: Amends Section 1(b) by
requiring a nomination to specifically and
geographically identify a water body, or portion of a
waterbody, for designation as an outstanding national
resource water.
3. Page 2, Lines 1-8: Amends Section 1(d) by requiring
the Department of Environmental Conservation to adopt
regulations establishing a process for submitting a
nomination for an outstanding national resources water
by providing public notice for all nominations,
providing notice to all property affected by the
designation, and creating a means for any resident of
the state to provide additional information about the
nomination.
4. Page 2, Lines 9-31/Page 3, Lines 1-2: Creates a new
Section 1(e), requiring the Department of
Environmental Conservation to transmit a nomination of
an outstanding national resource water to the
legislature if the department determined the nominated
water to be unique, important, or ecologically
sensitive; that the designation is necessary to
protect the water due to insufficient federal and
state protections; determined there is no other
available/effective method of protection. The
Department would need to determine whether the
nominated water had either been designated a wild or
scenic river; whether the water is either an ecosystem
or habitat for an endangered or threatened species;
whether the water is an ecosystem or habitat for an
outstanding recreational fishery; or whether the water
serves as the sole source of water for the use of
people. The Department would describe the potential
effects of a designation on endangered or threatened
species; recreational fisheries; and the water
supplies for the use of people.
5. Page 3, Lines 3-8: Amends the previous bill
version's Section 1(e) by reordering it to subsection
1(f), and adding a provision prohibiting the
Department of Environmental Conservation from
transmitting a substantially similar nomination to one
already transmitted within two years of the existing
nomination's original transmission.
6. Page 3, Lines 9-14: Adds a new Section 1(f),
requiring the Departments of Environmental
Conservation and Natural Resources to submit a report
to each body of the legislature every ten years,
beginning in 2017. The reports would describe each
body of water designated as an outstanding national
resource water and provide a recommendation regarding
the continuation of that designation.
7. Page 3, Line 21: Amends Section 3 by replacing the
word "may" with "shall," requiring the Department of
Environmental Conservation to adopt regulations
necessary for the implementation of the bill.
CHAIR GIESSEL removed her objection and said since Senators
Coghill and Stedman had suggested some of these changes she
would offer them the opportunity to comment.
SENATOR COGHILL commented that a 10-year review is totally
appropriate (referencing language on page 3, lines 9-14, Section
(g)). A lot of places in Alaska that have not been occupied will
change.
4:35:01 PM
SENATOR STEDMAN said language on page 2, line 5, provides a
provision to require individual notification to property
owner(s), the reason being they are always taking away peoples'
property rights away and very rarely adding to them. When you
purchase property, you buy those rights, and he didn't think it
appropriate to take them away without proper notification and
due process.
SENATOR WIELECHOWSKI asked if the notice to known property
owners will include people who have ownership of rights-of-way
along a river or a couple hundred yards in from that, but may
take the water.
MR. GIALOPSOS answered that he understands Senator Stedman's
intent is to provide notice to each property owner whose
interests are affected by the designation that would have their
property directly impeded by the waterway. The DEC will
promulgate regulations that should clarify that issue.
SENATOR WIELECHOWSKI asked for the DEC commissioner to come
back.
4:37:21 PM
SENATOR COSTELLO asked if language on page 3, line 14, of the
10-year report is asking for a recommendation from the two
departments on the continuation of the designation, because that
implies that there is a process to un-designate. She wanted to
know if that is the intent, and if that is included in the lower
section of the bill where the department would write the
regulations.
MR. GIALOPSOS answered according to Legislative Legal because
this would be an act of the legislature, not a constitutional
act, and because one legislature cannot bind the hands of future
legislatures, it is understood that these departments could
recommend to un-designate in extreme circumstances, barring a
constitutional prohibition.
CHAIR GIESSEL asked if there is further objection to the
committee substitute (CS). Finding none, she announced that
Version \H was before the committee. She invited Commissioner
Hartig forward and asked him to comment on the CS.
4:39:09 PM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), Anchorage, Alaska, said the CS addresses a
number of issues and that it represents reaching "some middle
ground" to get more consensus. He is still concerned with some
ambiguous language that has already been mentioned.
SENATOR WIELECHOWSKI asked if new language on page 1, lines 7-9,
means the department may not manage water of the state as
specified in 40 CFR (Code of Federal Regulations) 131.12 unless
it has been designated as an outstanding national water resource
(ONWR) under this section. That is essentially saying the DEC
may not manage the water as an ONWR, and there is a lot more to
anti-degradation than just the ONWR. Does this mean that DEC
can't apply anti-degradation to manage any water unless it is
specifically designated as an ONWR? It could be read two ways.
COMMISSIONER HARTIG agreed adding that that that CFR section
reference covers more than Tier 3 waters. It appears to also
deal with Tier 2 waters and perhaps Tier 1. This also might be
contrary to requirements of the Clean Water Act, but he would
have to get a legal opinion. He thought there were some
unintended consequences that need to be addressed.
CHAIR GIESSEL asked if he would advocate when water is nominated
that it would immediately become under the jurisdiction of a
Tier 3 water without having any review.
COMMISSIONER HARTIG responded no; it's more subtle than that. It
says the department may not manage water of the state as
specified in 40 CFR 131.12, and that section also deals with how
Tier 2 waters are managed and maybe Tier 1. It's confusing.
CHAIR GIESSEL asked if "tier water" only is designated as ONRW.
COMMISSIONER HARTIG replied only Tier 3 water.
CHAIR GIESSEL said she agreed that that language seemed to make
it a bit more specific.
COMMISSIONER HARTIG explained that the problem is with the
referral to all of 40 CFR 131.12 that deals with more than just
Tier 3 waters.
SENATOR WIELECHOWSKI asked if he had any recommended language.
COMMISSIONER HARTIG answered that he could come up with some
other language.
4:43:50 PM
SENATOR WIELECHOWSKI asked what if you had to take the river to
get to your property and had to hike in a few hundred yards in
reference to language on page 2, lines 5-6. How would it be
determined that a property is affected, because clearly someone
whose land abutted water would be affected?
COMMISSIONER HARTIG agreed with all the discussion he had heard
already about noticing anyone affected before anything happens,
but in practice it might not be easy to execute, because of
ambiguity and costs. For instance, it says to "each known
property owner," for which he thought the intent was "real
property owner." Also, "whose interest is affected" would be a
tough determination to make, because each person's circumstances
would have to be considered. Something definitive would have to
be crafted. Perhaps they could provide the same notice the
department does to the general public for a rule making
broadcast, and a more targeted approach for directly affected
owners.
CHAIR GIESSEL asked if he wants that language in statute rather
than regulation.
COMMISSIONER HARTIG said he wants some guidance in statute, but
the details could be worked out in regulations.
4:47:22 PM
SENATOR COGHILL said he thought the 40 CFR 131.12 reference
issue could be fixed by referencing subsections (a)(3),
specifically. Then the designation hasn't happen, but the reason
to designate is in what is called Tier 3 section.
CHAIR GIESSEL asked if he was on page 1, line 8.
SENATOR COGHILL answered yes.
COMMISSIONER HARTIG said he guessed that would be the direction
to go, but he would have to talk to the attorneys about it.
4:49:36 PM
SENATOR WIELECHOWSKI said language on page 2, lines 16-17, talks
about the department transmitting an ONRW nomination only if,
and a number of things are listed, and asked if number 3 -
determines that there is no other available or effective method
of protecting the water - and asked if that is a costly
analysis.
COMMISSIONER HARTIG agreed that it would be and added that his
concern generally was how to pay for this, because there is no
mechanism currently. He is looking at four nominations right
now, and if they start acting on those and he to have them ready
by the start of next session, he would have "to get real busy."
There is the whole Bristol Bay watershed, all of the Yakutat
forelands, the Chilkat River, and the Koktuli River.
The concept about an alternative short of a Tier 3 is a
legitimate area of inquiry, he said, but he was a bit concerned
with "determines that there is no other available or effective
method for protecting the water," because that would never be
the case. There is always something else, like declaring a park.
CHAIR GIESSEL said the fiscal issue is a fundamental question.
The Governor has asked that the legislature make this
determination, but public comment indicates that they are
considered a political body and not a scientific one. So,
regardless of who is doing this, scientific information would be
needed. One member suggested having a fee attached to a
nomination.
4:52:46 PM
COMMISSIONER HARTIG agreed about the science and other relevant
facts to the criteria like recreational and ecological values
would be needed.
4:53:18 PM
SENATOR STOLTZE disclosed that his property has a couple hundred
feet of river front. He asked what the legislature could do to
help him "keep on this high ground that I believe you started
on."
COMMISSIONER HARTIG said he believes the legislature should make
the ultimate decision; it would take a lot to convince him
otherwise. He would want to assure that the legislature has the
science and public weigh-in when it gets the package to make a
decision efficiently.
4:59:33 PM
At ease
5:00:13 PM
CHAIR GIESSEL called the meeting back to order and began taking
public comment on the CSSB 163, version 29-GS2916\H.
5:01:02 PM
PENNY VADLA, representing herself, Soldotna, Alaska, opposed SB
163. The legislature should not be making this designation about
our waters, but the DEC should do it based on scientific
information.
5:03:41 PM
RANDY JACKSON, representing himself, Haines, Alaska, opposed SB
163. The bill is not ready to be moved forward as it doesn't
have much local support. He said the bill should have specific
language saying the ADF&G advisory committees should have a say
in the nominations, maybe through a letter of recommendation.
How to pay for this has been brought up a number of times,
because the department can't pay for its projects now.
5:07:00 PM
GEORGE CAMPBELL, representing himself, Haines, Alaska,
enumerated problems with SB 163. In looking at case law, the
Tier 3 designation is important throughout the country, because
of its restrictions. What about the people on the tributaries
when their lifestyle must change because of this designation?
There is already confusion about parks and subsistence and
overlapping federal and state regulations.
5:10:01 PM
VERNER WILSON, Director, Natural Resources, Bristol Bay Native
Association (BBNA), Dillingham, Alaska, opposed SB 163. He said
a decision like this should be based on science. In Bristol Bay
the bill would place the burden on them to obtain additional
protections on their clean waters that many people in the region
depend on. They would have to spend tight resources to convince
legislators from other regions in Alaska to place protections on
lands and waters in their own region.
He said the BBNA supports additional protections for their
waters and have passed numerous resolutions to that effect.
Clean waters are the basis for their cultural wellbeing and
putting food on the table.
5:12:15 PM
KIM WILLIAMS, Executive Director, Nunamta Aulukestai,
Dillingham, Alaska, suggested changes to SB 163. She said they
are one of seven petitioners for the nomination of Koktuli River
to be an ONRW. She said they are a 502(c)(3) non-profit and
their mission is to protect the land, water, and air that will
sustain their way of life for all generations. They advocate on
behalf of more than 6,000 tribal and village corporation members
in the Bristol Bay region.
She thanked the chair for keeping SB 163 in committee for
further work. One of her problems was with "only if" language on
page 2, line 10. Their interpretation is that the legislature
will never see ONRW because it has to meet the criteria on page
2 (1, 2, 3, 4, and 5). She wanted to know who determines
"unique, ecological sensitive or important." She was also
concerned that current state and federal protections are not
sufficient and DEC will never find that current state and
federal protections are not there.
Additionally, on page 3 "recreational fishery" should include
the recognition of subsistence fisheries. People in rural Alaska
rely on subsistence and it's important to recognize not only
recreational, but subsistence. One other problem is on the last
page with the intent that it has to come before the legislature
within 10 days and what happens if "no action or action is
taken" needs to be defined.
She reminded them that Tier 3 is about prohibiting the lowering
of water quality and the reason they made their Koktuli
submission is to not lower the water quality because of
competing uses. Please keep this bill in committee until these
issues are worked out.
5:14:38 PM
SAM SNYDER, Trout Unlimited, Anchorage, Alaska, opposed SB 163.
He said clean water is a critical component of the health of our
fisheries and subsequently the businesses and interests they
work with. Trout Unlimited with other businesses and tribes
applied for ONRW status on the Koktuli River in 2012, because it
sits at the head waters of Alaska's largest commercial sockeye
fishery and home of Alaska's "legendary sport fishing rivers,"
which draw anglers, hunters and outdoor recreationists from
around the world.
This bill raises three concerns:
1. It places ownership of the resources that are to be managed
at the best interest of all Alaskan into the hands of
politicians.
2. It creates hurdles for securing ONRW designations that favor
Alaskans and opening the door for the influence of other
companies and lobbying interests.
3. Granting ONRW designation also creates a clear imbalance
between managing Alaska's important resource for the benefit of
Alaskans. This process should be clean, transparent and based on
science.
MR. SNYDER said SB 163 creates a more cumbersome process that
discourages public involvement and raises the costs associated
with proving the status, he concluded.
5:17:51 PM
BRITTANY HOGAN, representing herself, Anchorage, Alaska, opposed
SB 163. Outdoor recreation is one of the reasons she chooses to
live Alaska and she finds great joy in being able to experience
excellent trout and salmon fishing basically outside of her
front door. It is exciting that Alaska has waters worthy of ONRW
designation and it is clear they need to be protected. An ONRW
designation is best carried out through the sound science of the
DEC, not legislators in Juneau, she said.
ERIC BOOTON, representing himself, Anchorage, Alaska, opposed SB
163. He moved to Alaska from Colorado after graduating from
college, because it is such a pristine state and truly a dream
come true. Alaska is known world-wide as one of the greatest
sportfishing destinations, because of its intact ecosystems that
allow salmon and trout to thrive. Water quality is a critical
component of the health of our fisheries.
MR. BOOTON said he and many of his fellow anglers have serious
concerns about changing the responsibility for ruling making for
ONRW from DEC to the legislature. That would put Alaska's
resources in a game of political football while lobbyists are
guaranteed to win over concerns of Alaska citizens, as
amendments from the Alaska Miners' Association clearly
demonstrate. He suggested leaving management of these resources
and the determination of ONRW to the scientific experts at DEC.
DEC is more accountable and consistent with these kinds of
decisions.
5:21:11 PM
JED WHITTAKER, representing himself, Anchorage, Alaska, opposed
SB 163. He said, "We share Mother Earth. We share the air we
breathe. We share the water." But SB 163 makes him feel like he
lives in Flint, Michigan, because of their contaminated water
issue.
5:23:43 PM
HEIDI KRITZ, United Tribes of Bristol Bay, Juneau, Alaska,
opposed SB 163 and its CS. She said the tribes in Bristol Bay
are over 80 percent of its population. The tribal members still
depend on a traditional subsistence way of life and they hope to
continue to thrive in this region for years to come.
MS. KRITZ said they have serious concerns about the process in
all the versions of the bill. The previous bill lacked any
provisions about a process by which the water designations would
be made and left those decisions to the legislature. The
proposed amendments, however, seem entirely concerned with the
outcomes, more specifically avoiding a specific kind of outcome,
a Tier 3 water designation. These amendments would put in place
criteria so burdensome and cost prohibitive that they would
essentially prevent an ONRW designation from ever being applied
to any Alaska water body. Further, if DEC had the funds to
conduct the review as described in the bill, it could take
years, and the ultimate decision on any such designation would
still belong to the legislature. The tribes do not support
politicizing the determination of an ONRW. The decision should
be based on science.
JAMES SULLIVAN, representing himself, Douglas, Alaska, tacitly
supported SB 163. He supports any effort that is open and
transparent. He urged them to keep working on the bill.
5:29:22 PM
DENNIS WATSON, Mayor, City of Craig, Juneau, Alaska, tentatively
supported SB 163, but said it needs more work. Tier 3 appears to
be a wilderness type designation and prohibits a lot of things.
It could be an end run by the Environmental Protection Agency
(EPA) around Congress.
5:30:53 PM
MELANIE BROWN, representing herself, Naknek Native Council,
Juneau, Alaska, said she is a member of United Fishermen of
Alaska (UFA) and is a fourth-generation commercial permit holder
in Bristol Bay. She is affiliated with the water body known as
the Naknek River through her grandparents and ancestors. She and
her children are supported not only economically through the
commercial fishery, but she believes they exist because of the
water and what it supports.
MS. BROWN said a lot of people are treating the Tier 3 water
designation as something that would limit resource use and
development, when the water, itself, is a resource.
5:33:31 PM
VICTORIA DEMMERT, President, Yakutat Tlingit Tribe, Yakutat,
Alaska, opposed SB 163. She is a commercial setnet fisherman and
a subsistence user and lifelong Yakutat member. Their concern is
that there be a Tier 3, because they want clean water that can't
be degraded. "There have to be places in this world where these
things exist¼ The water is life to us."
She had concerns about some of the barriers she sees, like who
is going to do it, but she didn't want "the whole business of
the Tier 3 to be lost....Alaska needs it as a state." She
thought the DEC would be best for processing the designations.
5:36:37 PM
GUY ARCHIBALD, Director, Southeast Alaska Conservation Council
(SEACC), Juneau, Alaska, opposed SB 163. He said he is also the
director of the Inside Passage Waterkeeper that is affiliated
with the National Waterkeeper Alliance. He gets the impression
that a Tier 3 designation is a very onerous thing to landowners.
But people need to remember that the only thing a Tier 3
designation does is prevent permanent long-term or permanent
degradation of water quality. Any activity on that water that
does not create permanent degradation is allowed, like boating
and fishing. Many states have gone through this process.
If there is an existing permitted waste water discharge into a
water body and it is designated a Tier 3, those discharges are
grandfathered in. Also, temporary degradation is allowed for
construction: there are exemptions for river restoration and
flood control. "It's not going to stop industry," he said. But
an industry seeking to discharge into a Tier 3 water would have
to treat its water to the water quality criteria that exists in
the water body. They would no longer be allowed to externalize
the cost of doing business onto the public trust, but could seek
alternatives to waste water discharge like land application.
They could do deep well injection like the oil and gas industry
does or recycle the water like the Pogo Mine does very
successfully and profitably.
"It is not a red-letter nail in the coffin of industry as it
seems to be portrayed," Mr. Archibald concluded. Colorado has
over 6,000 miles of Tier 3 waters and New Mexico has 2,000 miles
and 29 lakes. Those states have active extractive resource
businesses and their economies are doing well. "It needs to be a
DEC process," he concluded.
CHAIR GIESSEL, finding no further comments, thanked everyone and
closed public testimony and held SB 163 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB172-Version E.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 172 |
| SB172-Explanation of Changes-Version E.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 172 |
| SB172 ver A.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 172 |
| SB172 Sponsor Statement - Governor's Transmittal letter.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 172 |
| SB172-DFG-CF-2-5-16.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 172 |
| SB163-Version H.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB163-Explanation of Changes-Version H.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB163 ver A.PDF |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB163 Fiscal Note DEC-WQ-12-30-15.PDF |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB163 Fiscal Note-DNR-MLR-02-15-2016.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB163-Comments-Bristol Bay Businesses.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB 163-Comments-Sealaska Corporation.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| CS SB163- Nunamta Aulukestai comments-3-16-16.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |
| SB163-Various Written Comments.pdf |
SRES 3/16/2016 3:30:00 PM |
SB 163 |