Legislature(2011 - 2012)CAPITOL 120

03/29/2011 05:00 PM House FISHERIES


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05:06:03 PM Start
05:06:37 PM Confirmation(s): Alaska Board of Fisheries (bof)
05:49:56 PM HB85
06:32:31 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmation Hearings: TELECONFERENCED
Board of Fisheries
*+ HB 85 MIXING ZONES/SEWAGE SYSTEMS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
               HB 85-MIXING ZONES/SEWAGE SYSTEMS                                                                            
                                                                                                                                
5:49:56 PM                                                                                                                    
                                                                                                                                
CHAIR THOMPSON announced  that the final order  of business would                                                               
be  HOUSE  BILL NO.  85,  "An  Act  requiring the  Department  of                                                               
Environmental Conservation  to collect and make  available to the                                                               
public   certain  information   relating   to  water   pollution;                                                               
prohibiting certain  mixing zones in freshwater  spawning waters;                                                               
and requiring a  public comment period for  certain sewage system                                                               
or treatment works modifications."                                                                                              
                                                                                                                                
5:52:28 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PAUL  SEATON, Alaska State  Legislature, presented                                                               
HB 85,  paraphrasing from  the sponsor  statement, which  read as                                                               
follows [original punctuation provided]:                                                                                        
                                                                                                                                
       A water discharge permit is a privilege to use our                                                                       
      public water.  Alaska waters receive varying amounts                                                                      
     of pollution under the  parameters of discharge permits                                                                    
     as  specified   by  the  Department   of  Environmental                                                                    
     Conservation.   Mixing zones are  areas permitted  in a                                                                    
     water  body surrounding  or downstream  of a  discharge                                                                    
     where  state water  quality standards  may be  exceeded                                                                    
     while the  effluent plume is  diluted by  the receiving                                                                    
     water.                                                                                                                     
                                                                                                                                
     Current regulations allow  freshwater spawning areas to                                                                    
     be  designated  as  mixing  zones  if  salmon  are  not                                                                    
     actively  spawning   (laying  eggs)  at  the   time  of                                                                    
     wastewater discharge  and allows  a mixing zone  in the                                                                    
     area even while  other species are laying eggs.   HB 85                                                                    
     would change  that regulation  to prevent  discharge of                                                                    
     pollutants  into any  freshwater spawning  area of  the                                                                    
     species identified on the statutory  list if they spawn                                                                    
     in nests.                                                                                                                  
                                                                                                                                
     HB 85  is also a  public right-to-know bill.   It seeks                                                                    
     to  create accountability  by  allowing  the public  to                                                                    
     have  clear and  easy access  to information  regarding                                                                    
     the   amount  and   nature  of   pollutants  that   are                                                                    
     discharged under permit into Alaska water.                                                                                 
                                                                                                                                
     HB 85 allows the public  to be involved if a commercial                                                                    
     sewage lagoon  is expanded by  more than 50  percent of                                                                    
     its  originally permitted  size.   Current law  doesn't                                                                    
     adequately  provide  opportunity for  public  awareness                                                                    
     and involvement in a comment  process for the expansion                                                                    
     of commercial sewage containment facilities.                                                                               
                                                                                                                                
5:57:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HERRON queried whether HB 85 will, or may,                                                                       
grandfather in existing waste water facilities that have mixing                                                                 
zones, such as an unpermitted village wastewater mixing zone.                                                                   
                                                                                                                                
REPRESENTATIVE SEATON responded that existing facilities will be                                                                
grandfathered in.                                                                                                               
                                                                                                                                
5:58:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   MILLER   questioned   whether   statute   exists                                                               
regarding what constitutes water pollution, or if HB 85                                                                         
establishes a definition.                                                                                                       
                                                                                                                                
REPRESENTATIVE  SEATON said  that  the  water quality  standards,                                                               
established by  the state, are  used for determining  amounts and                                                               
levels of  discharges that can be  permitted.  He noted  that the                                                               
bill  specifies  exceptions   for  streambed  disturbance,  water                                                               
turbidity, and  private sewage systems.   The mixing  zone permit                                                               
designates discharge  concentrations and identifies the  areas of                                                               
a discharge plume where water quality standards must be met.                                                                    
                                                                                                                                
5:59:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE AUSTERMAN  recalled a situation where  a permitted                                                               
discharge was allowed  into a stream that did  not initially host                                                               
a salmon run but later became a spawning area.                                                                                  
                                                                                                                                
REPRESENTATIVE SEATON  acknowledged that this concern  arose when                                                               
a  manmade wastewater  canal, in  Valdez, had  a pink  salmon run                                                               
establish a  spawning area,  jeopardizing the  facilities ability                                                               
to  continue discharging,  under an  early version  of the  bill.                                                               
However, HB 85 addresses freshwater  discharges only, and exempts                                                               
artificial  channels,  or  settling  ponds invaded  by  a  listed                                                               
spawning species.                                                                                                               
                                                                                                                                
6:01:58 PM                                                                                                                    
                                                                                                                                
LYNN   KENT,  Director,   Division   of   Water,  Department   of                                                               
Environmental Conservation  (DEC), stated official  opposition to                                                               
HB  85, and  said  the  bill goes  beyond  what  is necessary  to                                                               
protect fish.   She  directed attention  to the  committee packet                                                               
and  the  written testimony  provided  by  DEC [dated  March  29,                                                               
2011].                                                                                                                          
                                                                                                                                
6:02:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HERRON referred  to  the DEC  testimony, page  2,                                                               
paragraph 2, and read:                                                                                                          
                                                                                                                                
        While these protections are not necessary from a                                                                        
     scientific perspective ...                                                                                                 
                                                                                                                                
REPRESENTATIVE HERRON surmised and asked:                                                                                       
                                                                                                                                
     It's   not   scientifically    necessary   to   protect                                                                    
     anadromous salmon  spawning streams from  mixing zones.                                                                    
     So,  what is  your  scientific  evidence that  supports                                                                    
     this statement.                                                                                                            
                                                                                                                                
6:03:30 PM                                                                                                                    
                                                                                                                                
MS. KENT answered:                                                                                                              
                                                                                                                                
     You don't need  a flat out prohibition  on mixing zones                                                                    
     in  spawning  areas  for any  fish,  including  salmon,                                                                    
     although DEC  regulations do  prohibit mixing  zones in                                                                    
     salmon spawning areas.   We say that  because there are                                                                    
     certain contaminants that don't  have a negative effect                                                                    
     on fish; fecal coliform is  a good example of that. ...                                                                    
     A  fecal coliform  mixing zone  ...  wouldn't have  any                                                                    
     impact on  salmon or  spawning salmon.  ... We  did, in                                                                    
     our  DEC  regulation  revisions for  mixing  zones,  go                                                                    
     ahead and  retain the prohibition  on mixing  zones for                                                                    
     salmon spawning  areas more  for the  public perception                                                                    
     issue  than because  there was  a risk  to salmon  from                                                                    
     authorized mixing zones.                                                                                                   
                                                                                                                                
6:04:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLER  directed  attention to  the  DEC  written                                                               
testimony, page 1, and read:                                                                                                    
                                                                                                                                
     Some  pollutants   cannot  be  reported  in   terms  of                                                                    
     "amount",  such as  fecal coliform,  radioactivity, and                                                                    
     turbidity.                                                                                                                 
                                                                                                                                
REPRESENTATIVE MILLER asked how these pollutants are measured.                                                                  
                                                                                                                                
MS. KENT responded  that the water quality  standards are usually                                                               
based on  a concentration of contaminant  in the water body.   It                                                               
is   not   the   measure   of  discharge,   but   the   resultant                                                               
concentration, which is considered.   The water quality standards                                                               
are based on micrograms per liter  often referred to as parts per                                                               
million or trillion.                                                                                                            
                                                                                                                                
6:06:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  AUSTERMAN  stated   his  understanding  that  DEC                                                               
prefers  internal  regulation to  statutory  law  to govern  this                                                               
issue.                                                                                                                          
                                                                                                                                
MS. KENT explained that regulations,  adopted in 1975, prohibited                                                               
mixing zones in anadromous fish  spawning areas.  The regulations                                                               
were  changed  in  2006  to  allow  mixing  zones  in  non-salmon                                                               
spawning areas.                                                                                                                 
                                                                                                                                
REPRESENTATIVE AUSTERMAN argued that  if DEC is already following                                                               
the parameters  under regulation why would  the department object                                                               
to having statute reflect the same language.                                                                                    
                                                                                                                                
MS.  KENT said  that  the bill  goes beyond  what  is in  current                                                               
regulation.                                                                                                                     
                                                                                                                                
REPRESENTATIVE AUSTERMAN  referred to the DEC  written testimony,                                                               
statement 5, and asked  whether satisfactory, departmental action                                                               
has been taken on  this point.  [Statement 5 reads:   HB 85 would                                                               
prohibit  mixing zones  that  have become  a  fish spawning  area                                                               
unless  the  discharge was  from  a  public or  private  domestic                                                               
wastewater facility.]                                                                                                           
                                                                                                                                
MS. KENT answered yes.                                                                                                          
                                                                                                                                
6:09:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HERRON referred  to the  DEC testimony  document,                                                               
statement 4,  which states  that it is  not necessary  to protect                                                               
non-salmon  species,  from  mixing  zones,  because  they  aren't                                                               
economically important.  He said:                                                                                               
                                                                                                                                
     You   don't   recognize   subsistence   [use]   as   an                                                                    
     economically  important  activity.   And  smelt  are  a                                                                    
     major  food/prey  species  for  salmon,  and  ...  help                                                                    
     support   healthy   salmon   stocks.      They   aren't                                                                    
     economically important from that perspective.                                                                              
                                                                                                                                
MS. KENT maintained  that a flat out prohibition  on mixing zones                                                               
in non-salmon spawning  areas is not necessary.   A nineteen part                                                               
requirement check  list is  necessary to  obtain a  permit, which                                                               
considers all of the aquatic life in a stream.                                                                                  
                                                                                                                                
6:11:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE AUSTERMAN  queried whether documented  cases exist                                                               
regarding domestic  or industrialized discharge, which  this bill                                                               
might help.                                                                                                                     
                                                                                                                                
MS. KENT said that there are  mixing zones that are authorized on                                                               
a temporal  basis, allowing  discharge into a  stream as  long as                                                               
fish  are  not  present,  and   the  bill  would  restrict  these                                                               
discharges.                                                                                                                     
                                                                                                                                
CHAIR THOMPSON opened public testimony                                                                                          
                                                                                                                                
6:14:18 PM                                                                                                                    
                                                                                                                                
BRIAN  KRAFT, Lodge  Owner, stated  support for  HB 85,  and said                                                               
visitors expect  to fish in  unpolluted waters.  Because  of this                                                               
expectation, he said, charter operators  are altering the type of                                                               
motors used  on the river boats  to minimize oil discharge.   The                                                               
waterways  should be  kept as  pristine as  possible, as  fishery                                                               
economics  depends   on  the  perception  held   by  the  public.                                                               
Additionally,  there  is a  continuous  cycle  that needs  to  be                                                               
supported for the incubation of spawning fish.                                                                                  
                                                                                                                                
6:16:57 PM                                                                                                                    
                                                                                                                                
BRENDA DOLMA, stated support for HB  85, and said it is important                                                               
to protect the water and  the perception that Alaskan salmon have                                                               
clean  rearing  conditions; an  important  image  to maintain  in                                                               
perpetuity.                                                                                                                     
                                                                                                                                
6:18:55 PM                                                                                                                    
                                                                                                                                
MICHAEL SATRE,  Executive Director, Council of  Alaska Producers,                                                               
testified in  opposition to HB  85, paraphrasing from  a prepared                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     The Council  of Alaska Producers is  a non-profit trade                                                                    
     association  representing  the  producing  large  metal                                                                    
     mines  and  developmental  projects  in  the  state  of                                                                    
     Alaska.                                                                                                                    
                                                                                                                                
     One of  the many  challenges of  developing communities                                                                    
     and  projects within  our great  state is  managing the                                                                    
     impacts that we  have on our aquatic  resources.  Every                                                                    
     community and  camp generates  some sort  of wastewater                                                                    
     and  most,  if not  all,  projects  have some  sort  of                                                                    
     process  or contact  water.   If  this water  is to  be                                                                    
     discharged back  into the  environment, there  are very                                                                    
     strict  water quality  standards  that must  be met  in                                                                    
     order to avoid impacting our surface waters.                                                                               
                                                                                                                                
     Unfortunately, even  with the best  available treatment                                                                    
     technologies, it  is still possible that  treated water                                                                    
     may not meet our very  stringent standards at the point                                                                    
     of discharge.   This is  why the State of  Alaska, with                                                                    
     authority granted by  the Clean Water Act  and the EPA,                                                                    
     allows for the permitting of  mixing zones in order for                                                                    
     wastewater  that is  slightly out  of compliance  to be                                                                    
     diluted into a permittable discharge.                                                                                      
                                                                                                                                
     These zones,  whether they are  in fresh  or saltwater,                                                                    
     are  permitted through  a  rigorous scientific  process                                                                    
     and  are  truly  a  method  of  last  resort  to  allow                                                                    
     communities   and  projects   to  meet   water  quality                                                                    
     standards.                                                                                                                 
                                                                                                                                
     In freshwater,  the requirements for a  mixing zone are                                                                    
     even stricter.  Most  importantly, if a proposed mixing                                                                    
     zone  contains a  spawning  area for  any  of the  five                                                                    
     Pacific Salmon species ... it cannot be permitted!                                                                         
                                                                                                                                
     Mixing  zones in  freshwater  spawning  areas of  other                                                                    
     fish must:                                                                                                                 
                                                                                                                                
     Meet  statewide  water  quality  standards  plus  other                                                                    
     conditions imposed by ADF&G and DEC.                                                                                       
                                                                                                                                
     Have an approved mitigation plan.                                                                                          
                                                                                                                                
     Not  adversely  affect the  capability  of  an area  to                                                                    
     support   future  spawning,   incubation  and   rearing                                                                    
     activities.                                                                                                                
                                                                                                                                
     Existing mixing zone  regulations allow our communities                                                                    
     and  our  projects to  meet  our  strict water  quality                                                                    
     standards  and  ensure that  we  can  strike a  balance                                                                    
     between  developing   our  state  and   protecting  our                                                                    
     environment.                                                                                                               
                                                                                                                                
     HB85  will  disrupt  this   balance  by  introducing  a                                                                    
     blanket prohibition on allowing  mixing zones where any                                                                    
     anadromous fish spawn or where  the resident fish redds                                                                    
     are located  for the long  list of fish  species listed                                                                    
     in  the   proposed  AS.46.03.065(2).    This   lack  of                                                                    
     flexibility    will    place    additional,    possibly                                                                    
     insurmountable,  hindrances on  the development  of our                                                                    
     state.   CAP  urges you  to not  pass the  bill out  of                                                                    
     committee.                                                                                                                 
                                                                                                                                
6:24:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON clarified that the bill only applies to                                                                   
freshwater, and excludes saltwater zones.  Neither does it apply                                                                
to  turbidity mixing  zones, and  referred to  the bill,  page 3,                                                               
line 6, to paraphrase from the language, which read:                                                                            
                                                                                                                                
     (c) The  prohibition in  (a) of  this section  does not                                                                    
     apply to a  turbidity mixing zone for  a suction dredge                                                                    
     placer  mine  or  a mechanical  placer  mine  that  the                                                                    
     department finds, with the  concurrence of the division                                                                    
     of   the  Department   of  Fish   and  Game   that  has                                                                    
     responsibility  for fish  habitat,  will not  adversely                                                                    
     affect the  present or future spawning,  incubation, or                                                                    
     rearing of fish included under (a) of this section.                                                                        
                                                                                                                                
REPRESENTATIVE SEATON pointed out  that mixing zones are allowed,                                                               
during  spawning times  for a  list of  species, which  includes:                                                               
Arctic  char, Dolly  Varden, lake  trout, landlocked  coho, king,                                                               
and  sockeye  salmon,  rainbow  trout,  sheefish  and  whitefish.                                                               
These  are  important  subsistence  species  in  Alaska's  inland                                                               
waters.  He said:                                                                                                               
                                                                                                                                
     I  think that  DEC's  comments that,  "yes  we have  an                                                                    
     allowance,  or   grandfathering,  for   the  wastewater                                                                    
     discharge,"  but  they would  like  the  ability to  do                                                                    
     industrial  pollutants, or  industrial discharges  that                                                                    
     are  above the  level on  those spawning  areas, that's                                                                    
     what I wish to say  no to. ... Development should occur                                                                    
     in  a way  that protects  our renewable  resources, and                                                                    
     our  fish   species  are   important  to   all  Alaskan                                                                    
     residents.                                                                                                                 
                                                                                                                                
REPRESENTATIVE SEATON directed attention  to the committee packet                                                               
and  the  chart  in  the  DEC handout  titled,  "Mixing  Zones  &                                                               
Spawning Areas,"  to point  out that  the "old"  2003 regulations                                                               
are what  the department currently  enforces, and align  with the                                                               
provisions  proposed in  HB 85.   The  2006 regulations  have not                                                               
been approved  by the EPA (Environmental  Protection Agency), and                                                               
the chart  should be  read bearing  this in  mind.   He explained                                                               
that, since  the original  adoption in 1975  and through  lack of                                                               
regulatory  or  statutory  action,  interpretation  of  the  term                                                               
"spawning area" has  changed.  The department  has written policy                                                               
and  adopted regulations  allowing  higher  levels of  pollution,                                                               
based  on   the  reinterpretation.    The   idea  that  pollution                                                               
discharges will  not have  future effects on  an area  where fish                                                               
spawn is dubious, he cautioned.   He asked the committee to focus                                                               
attention on particular discharges, such  as copper.  The meaning                                                               
of  concentration  and  the  scope  of a  mixing  zone  are  also                                                               
important to understand.  He stressed:                                                                                          
                                                                                                                                
     I know  DEC says ...  "our [regulations] say  we're not                                                                    
     going to  influence future  [conditions]."   But unless                                                                    
     we  know what  those  amounts are  that  are going  out                                                                    
     there  over time,  then we're  not going  to really  be                                                                    
     able  to  understand  what  the  potential  impact  is.                                                                    
     That's what  this bill is  trying to  get to:   to make                                                                    
     sure that our renewable resources ... are protected.                                                                       
                                                                                                                                
6:29:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HERRON   asked  for  comment  on   the  testimony                                                               
statement that,  "No problem has  been identified that  this bill                                                               
is meant to correct."                                                                                                           
                                                                                                                                
REPRESENTATIVE SEATON  replied that it is  difficult to determine                                                               
to which  part of  the bill  the statement  refers.   However, he                                                               
said,  HB 85  corrects the  public  having no  knowledge of  what                                                               
chemicals are being  discharged and concentrating over  time in a                                                               
particular  system,   by  requiring   understandable  disclosure.                                                               
Also,  DEC   has  allowed  a   vastly  increased   sewage  lagoon                                                               
discharge,  in a  residential  area without  public  notice or  a                                                               
right to  comment.   Thirdly, he  said mixing  zones in  areas of                                                               
subsistence fish populations are a problem.  He said:                                                                           
                                                                                                                                
     Can I  go out  and show  you a  fish kill?   I  want to                                                                    
     prevent  that  from  ever   happening,  just  like  the                                                                    
     regulations  were  before  2003,   that  that  was  not                                                                    
     allowed, and  I don't think  it should be  allowed now.                                                                    
     I  think that  development  should go  forward, but  we                                                                    
     want responsible development ... done  in a way that we                                                                    
     never have those  problems where I can come  to you and                                                                    
     say, 'Here's a  picture of a big fish kill.'   We never                                                                    
     want to see  that, and that's what this  bill is hoping                                                                    
     to accomplish.                                                                                                             
                                                                                                                                
6:31:56 PM                                                                                                                    
                                                                                                                                
CHAIR THOMPSON announced that HB 85 would be held.                                                                              

Document Name Date/Time Subjects
Confirmations - Transmittal Letter.PDF HFSH 3/29/2011 5:00:00 PM
Confirmation - Jeffrey - Board of Fisheries - Resume.pdf HFSH 3/29/2011 5:00:00 PM
Confirmations - Jeffrey - BOF - Haines Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
Confirmations - Jeffrey - BOF - Kozak & Assts Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
Confirmations - Jeffrey - BOF - Peterson Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
Confirmation - Jensen - Board of Fisheries - Resume.pdf HFSH 3/29/2011 5:00:00 PM
Confirmations - Jensen - BOF - Alaska Trollers Assn Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
Confirmations - W Brown - Board of Fisheries - Resume.pdf HFSH 3/29/2011 5:00:00 PM
HB 85 - Version A.PDF HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Sponsor Statement.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Sectional Summary.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Fiscal Note - DEC - 02-03-11.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85- DEC Water - Answers - 2007.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - DEC -Honey Bear Questions -2007.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Multiple Letters - Support.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Alaska Trollers Assn Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
Confirmations - Jensen - BOF - United Fishermen of Alaska Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
HB 85 - DEC - MZ Testimony - H Res - 2-28-11.docx HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - DEC - MZ Fact Sheet.doc HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - DEC - MZ Requirements in Regs.doc HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - DEC - MZ Side-by-side.docx HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - AK Miners Assn Ltr - Oppose.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Wartinbee Ltr - Support.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
Confirmations - W Brown - Board of Fisheries - Testimony.pdf HFSH 3/29/2011 5:00:00 PM
HB 85 - Council of AK Producers - Testimony.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Dolma Fax - Support.pdf HFSH 3/29/2011 5:00:00 PM
HB 85
HB 85 - Fineh Fax - Support.pdf HFSH 3/29/2011 5:00:00 PM
HB 85