Legislature(2005 - 2006)CAPITOL 124

01/20/2006 08:30 AM House FISHERIES

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08:36:00 AM Start
08:36:17 AM HB328
10:01:13 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
HB 328-BAN MIXING ZONES IN SPAWNING AREAS                                                                                     
8:36:17 AM                                                                                                                    
CO-CHAIR THOMAS  announced that the  only order of  business today                                                              
would be  HOUSE BILL NO. 328  "An Act prohibiting mixing  zones in                                                              
freshwater  spawning  waters."     He  allowed  that  three  state                                                              
departments  would open  testimony, followed  with a  presentation                                                              
by a  prime sponsor  of the bill,  continuing with testimony  from                                                              
two   fishing  groups,   and   finally  public   witnesses,   time                                                              
permitting.   He  expressed  his  intention to  hold  the bill  in                                                              
committee for continued  public testimony at next  weeks scheduled                                                              
8:39:45 AM                                                                                                                    
LYNN  TOMICH KENT,  Director,  Division  of Water,  Department  of                                                              
Environmental  Conservation  (DEC),  began  by  stating  that  the                                                              
current  regulations  provide a  prohibition  on  mixing zones  in                                                              
spawning   areas.     She   explained   that   these   prohibitive                                                              
regulations  are  "not  fair"  to   facilities  that  invested  in                                                              
developing facility  infrastructure, and that maintained  a permit                                                              
from  DEC  for  which  [effluent]  discharge  into  an  authorized                                                              
mixing zone in  an area fish subsequently inhabited  such that the                                                              
zone  created a  spawning  area.   She  explained  that under  the                                                              
current  regulations,   DEC  is   precluded  from  authorizing   a                                                              
continued use permit  given this scenario.  Ms.  Kent related that                                                              
mixing  zones  are  important to  communities  across  the  state.                                                              
There  are over 400  authorized  mixing zones  in Alaska of  which                                                              
157 serve municipal sewage treatment facilities.                                                                                
8:41:09 AM                                                                                                                    
MS.  KENT explained  that  DEC  is  charged with  providing  water                                                              
quality standards  that are designed to protect  the multiple uses                                                              
of  Alaskan  waters:  drinking water;  public  health  safety  and                                                              
welfare;  growth  and  propagation   of  aquatic  life;  domestic,                                                              
commercial  and  industrial  uses;  and recreational  uses.    The                                                              
water  quality  standards  are the  regulatory  criteria  used  to                                                              
provide appropriate  water purity to protect these  multiple uses.                                                              
She described  a mixing zone as  an area where  treated wastewater                                                              
is  discharged  and allowed  to  mix  with a  [non-treated]  water                                                              
body;  the  water  quality  standards may  be  exceeded  within  a                                                              
permitted  mixing zone  but have  to  be met  at the  edge of  the                                                              
mixing zone.   She noted  that DEC's goal  is to protect  all uses                                                              
of  the entire  water body.   She  highlighted  that mixing  zones                                                              
exist in  accordance with the federal  Clean Water Act  and stated                                                              
that  the  Environmental  Protection Agency  (EPA)  has  published                                                              
guidance standards regarding methods to establish mixing zones.                                                                 
8:42:28 AM                                                                                                                    
MS.  KENT  explained  how  mixing zones  are  engineered  and  the                                                              
parameters  that  DEC  employs   to  authorize  them.    She  then                                                              
explained  that, once authorized,  the permittee  may be  required                                                              
to  monitor their  discharge  and the  surrounding  waters of  the                                                              
mixing  zone to  ensure compliance  to regulatory  standards.   In                                                              
addition,  DEC has  an  inspection  and monitoring  program  under                                                              
which  it  takes  appropriate  enforcement   actions.    Ms.  Kent                                                              
pointed out  that mixing  zones have been  utilized in  Alaska for                                                              
the past  30 years, and are  only managed by  permitted wastewater                                                              
facilities which are subject to public review and comment.                                                                      
8:43:14 AM                                                                                                                    
MS.  KENT directed  the committee's  attention to  the DEC  packet                                                              
handout  number  3 entitled,  "Division  of Water,  Water  Quality                                                              
Standards,  2003-2006 Triennial  Review."   Ms. Kent proceeded  by                                                              
reading the following bulleted points:                                                                                          
     In determining  whether to authorize a mixing  zone, DEC                                                                 
     must consider:                                                                                                           
     ·the characteristics of the receiving water                                                                                
     ·the characteristics of the effluent                                                                                       
     ·the effects,  including cumulative effects  of multiple                                                                   
     discharges,  along with  nonpoint  sources of  pollution                                                                   
     on the uses of the water                                                                                                   
     ·any  measures  that would  mitigate  potential  adverse                                                                   
     effects to aquatic resources                                                                                               
     ·any other relevant factors                                                                                                
     In order to  authorize a mixing zone DEC  must find that                                                                 
     ·effluent  will   be  treated  to  remove,   reduce  and                                                                   
     disperse  the   pollutants  using  the   most  effective                                                                   
     methods  that   are  technologically  and   economically                                                                   
     feasible,  at a  minimum consistent  with statutory  and                                                                   
     regulatory treatment requirements                                                                                          
     ·designated  and existing  uses  of the  waterbody as  a                                                                   
     whole will be maintained and protected                                                                                     
     ·overall  biological  integrity  of the  waterbody  will                                                                   
     not be impaired                                                                                                            
     ·mixing zone is as small as practicable                                                                                    
     To obtain  a mixing zone  approval, the mixing  zone can                                                                 
     ·result  in   a  toxic  effect  in  the   water  column,                                                                   
     sediments,  or  biota  outside  the  boundaries  of  the                                                                   
     mixing zone                                                                                                                
     ·create a  public health hazard  that would  preclude or                                                                   
     limit existing  uses of the  waterbody for water  supply                                                                   
     or contact recreation                                                                                                      
     ·preclude  or limit  established processing  activities,                                                                   
     commercial,  sport,  personal-use, or  subsistence  fish                                                                   
     and shellfish harvesting                                                                                                   
     ·result in a  reduction in fish or  shellfish population                                                                   
     ·result  in  permanent or  irreparable  displacement  of                                                                   
     indigenous organisms                                                                                                       
     ·adversely  affect  threatened   or  endangered  species                                                                   
     except as authorized under the Endangered Species Act                                                                      
     ·form a barrier to migratory species or fish passage                                                                       
     ·contain       pollutants      that       bioaccumulate,                                                                   
     bioconcentrate,  or  persist  above  natural  levels  in                                                                   
     sediments, water, or biota                                                                                                 
     ·present  an  unacceptable  risk to  human  health  from                                                                   
     carcinogenic, mutagenic, teratogenic, or other effects                                                                     
     ·settle to form objectionable deposits                                                                                     
     ·produce floating  debris, oil, scum and  other material                                                                   
     in concentrations that form nuisances                                                                                      
     ·result in undesirable or nuisance aquatic life                                                                            
     ·produce   objectionable  color,   taste,  or  odor   in                                                                   
     aquatic  resources  harvested from  the  area for  human                                                                   
     ·cause lethality to passing organisms                                                                                      
     ·exceed  acute aquatic  life criteria  beyond a  smaller                                                                   
     initial mixing zone near the outfall                                                                                       
8:46:07 AM                                                                                                                    
MS. KENT explained that mixing zones are integral to the                                                                        
operation of facilities such as sewage treatment plants or                                                                      
seafood processors,  who discharge waste water to  a surface water                                                              
body.   She directed the  committee's attention  to page 4  of the                                                              
DEC  handout,  which contains  a  pie  chart  of mixing  zones  in                                                              
Alaska  and   names  the   six  statewide   usages  in   order  of                                                              
importance:   Municipalities,  seafood  processing, placer  mines,                                                              
oil and  gas related  facilities, larger  mines, and a  fertilizer                                                              
8:46:50 AM                                                                                                                    
MS.  KENT proceeded  to page  5,  and provided  examples of  three                                                              
types  of mixing zones  in current  operation.   She detailed  the                                                              
profiles   of  a   general   seafood  processing   facility;   the                                                              
Mendenhall Wastewater  Treatment Plant,  Juneau; and  the Soldotna                                                              
Wastewater Treatment Facility, Soldotna.                                                                                        
8:48:36 AM                                                                                                                    
MS.  KENT  pointed  out  that  many  types  of  wastewater,  given                                                              
today's  technology, could  meet  water quality  standards at  the                                                              
end  of the  pipe  [eliminating  the need  for  the mixing  zone].                                                              
However,  she  noted,   that  this  level  of   treatment  can  be                                                              
prohibitively  expensive for  the permittee.   She explained  that                                                              
mixing zones  are considered a  regulatory tool to  keep treatment                                                              
costs   reasonable  while   protecting   human   health  and   the                                                              
8:49:06 AM                                                                                                                    
MS.  KENT   stated  that   the  department's  federally   required                                                              
triennial  review revealed,  in part,  the need  for the  proposed                                                              
changes.   She  said  that DEC's  existing  regulations contain  a                                                              
prohibition  on mixing  zones  in spawning  areas  of streams  and                                                              
rivers  with   anadromous  fish,  and  some   specifically  listed                                                              
resident fish.   Subsequent to the addition of  the aforementioned                                                              
prohibition  being added  to the  DEC regulations  in 1995,  there                                                              
were various  attempts to  provide for  exceptions, although  none                                                              
were adopted.   She pointed out that the review  process, covering                                                              
the  potential changes  to the  mixing  zone regulations,  allowed                                                              
161 days for public comment.                                                                                                    
MS.  KENT  stated  three  reasons  that  DEC  has  proposed  these                                                              
changes.   First,  the  prohibition on  mixing  zones in  spawning                                                              
areas  goes beyond  what is  scientifically  necessary to  protect                                                              
fish, and  many protections for  fish already exist.   Second, the                                                              
existing  regulations present  an  unfairness  for permittees  who                                                              
have invested  in a facility, received  a mixing zone  permit, and                                                              
subsequently  experienced the  zone transforming  into a  spawning                                                              
area,  resulting in  costly and  lengthy re-permitting  processes.                                                              
Third,  the current  regulations  do  not reflect  the  integrated                                                              
process by which  DEC synchronizes with Alaska  Department of Fish                                                              
& Game  (ADF&G), and  the Department  of Natural Resources  (DNR),                                                              
utilizing  combined  authority  to  identify  spawning  areas  and                                                              
protect fish/habitat.                                                                                                           
8:50:43 AM                                                                                                                    
MS.  KENT, addressing  the "unfairness"  reference, described  the                                                              
Valdez sewage  treatment facility,  which now has  salmon spawning                                                              
in its  manmade discharge  ditch.  She  also described  the Palmer                                                              
sewage treatment  plant that discharges into the  Matanuska River,                                                              
which now supports  a salmon run in its mixing zone.   She went on                                                              
to  discuss   the  Pogo  mine,   which  discharges   its  domestic                                                              
wastewater  into  the Goodpaster  River  and the  challenges  that                                                              
mining  officials faced  in efforts  to comply  with the  existing                                                              
regulations.    Ms.  Kent explained  the  "convoluted  and  costly                                                              
efforts"   that  each  of   these  situations   present   and  the                                                              
difficulties involved  for the named parties to  receive and renew                                                              
their mixing zone permits.                                                                                                      
8:52:48 AM                                                                                                                    
MS.  KENT directed  the committee's  attention  to page  1 of  the                                                              
packet  and  explained  that,  for   purposes  of  discussing  the                                                              
proposed  regulations, she  would  use the  term "non-salmon"  for                                                              
"other specifically  listed fish."   She  stated that  the revised                                                              
regulations  have retained  the  prohibition on  mixing zones  and                                                              
spawning  areas of  all fresh  waters  for salmon,  with the  only                                                              
change being the  addition of lakes to the list.   For non-salmon,                                                              
she continued,  the prohibition  was also  retained for  all fresh                                                              
waters,  again  adding  lakes,  but  allowing  for  two  potential                                                              
MS.  KENT  explained  that  the  first  exception  allows  DEC  to                                                              
authorize a  mixing zone  in a non-spawning  area, but  only where                                                              
all water  quality standards  for protection  of aquatic  life are                                                              
met.    Page 6,  of  the  handout,  she pointed  out,  provides  a                                                              
comparison  of drinking water  criteria to  aquatic life  criteria                                                              
in order to  illustrate how implementing this exception  would not                                                              
have an adverse  effect on fish, but would allow  DEC to authorize                                                              
a mixing zone in a non-salmon spawning area.                                                                                    
8:54:43 AM                                                                                                                    
MS.  KENT  described  the  second exception  in  which  DEC  could                                                              
authorize a  mixing zone  in a non-salmon  spawning area  provided                                                              
that ADF&G  or DNR  has approved a  mitigation plan  in accordance                                                              
with the  appropriate department's  regulatory requirements.   She                                                              
explained   that   in   cases  where   a   non-spawning   waterway                                                              
subsequently  becomes a  spawning area,  DEC would  be allowed  to                                                              
reauthorize  the   mixing  zone  permit  so  long   as  all  other                                                              
provisions of  the regulations are  met.  The aforementioned  will                                                              
allow  the  Valdez  and  Palmer  sewage  treatment  facilities  to                                                              
continue to operate without costly facility reconstruction.                                                                     
8:55:40 AM                                                                                                                    
MS.  KENT  reiterated   DEC's  position  that  by   effecting  the                                                              
proposed  regulations:     mixing   zones  can  be   appropriately                                                              
authorized  in spawning  areas; fish  can be  protected; and  that                                                              
protections  may go  beyond what  science  dictates as  necessary.                                                              
She  maintained that  HB 328  and DEC's  regulations take  similar                                                              
approaches to prohibiting  mixing zones in salmon  spawning areas,                                                              
however, for  non-salmon species, the  two differ.   She explained                                                              
that  HB 328  proposes  to  prohibit  mixing zones  in  non-salmon                                                              
spawning  areas, whereas  DEC regulations  rely  on sound  science                                                              
and  existing  ADF&G   and  DNR  protection  policies   [to  allow                                                              
appropriate  water  body usage].    She pointed  out  that HB  328                                                              
would  allow a mixing  zone only  in new  manmade waterways  where                                                              
fish have  begun to  spawn, but  would disallow  a mixing  zone in                                                              
natural waterways  which later become  spawning areas.   The DEC's                                                              
revised regulations  provide the flexibility that  would allow for                                                              
resolution of  both of these  special situations.   The situations                                                              
being experienced,  by the  municipalities  of Valdez and  Palmer,                                                              
she  concluded,   could  be  reasonably  resolved   utilizing  the                                                              
proposed regulations.                                                                                                           
8:57:31 AM                                                                                                                    
COMMISSIONER CAMPBELL,  Commissioner, Alaska Department  of Fish &                                                              
Game (ADF&G),  stated that the  proposed regulations  provide fish                                                              
all the necessary  levels of protection without  needlessly adding                                                              
layers  of   regulation  that  impinge   on  other  uses   of  the                                                              
waterways.   He conceded that  the inclusion,  in HB 328,  of fish                                                              
spawning  in  lakes  is  an  addition  that  heretofore  has  been                                                              
needed.   He  pointed  out that  as  long as  the  state has  been                                                              
regulating  activities in  spawning areas,  the identification  of                                                              
what is  a spawning area has  been done spatially  and temporally.                                                              
These practices  focused on  ascertaining where  and when  a given                                                              
activity is  occurring in  a watershed  and will remain  unchanged                                                              
in the proposed DEC regulations as well as under HB 328.                                                                        
9:02:32 AM                                                                                                                    
COMMISSIONER  CAMPBELL  stated   that  it  has  always  been  past                                                              
practice,   but  not   regulation,  to   ensure  that   wastewater                                                              
discharges  do not  adversely  affect spawning  areas.   He  noted                                                              
that in  the proposed  regulations, no  discharge will  be allowed                                                              
which can adversely  effect the future capability of  that area to                                                              
be used for spawning.   He opined that the revised  regulations do                                                              
not present a  loophole, but are an improvement  toward regulating                                                              
usage  and  providing  spawning  area  protection.    Further,  he                                                              
charged the  committee to closely  review the new  DEC regulations                                                              
and  discern that,  through the  process,  the administration  has                                                              
done a responsible  job in creating regulation  that both protects                                                              
fish and allows  for appropriate other usage.   He maintained that                                                              
creating statute  around this regulatory issue is  unnecessary and                                                              
may set a precedent for implementing regulations in the future.                                                                 
9:06:27 AM                                                                                                                    
REPRESENTATIVE  SALMON  asked  Commissioner   Campbell  if  he  is                                                              
supporting HB 328 or the old DEC regulations.                                                                                   
COMMISSIONER CAMPBELL  clarified that his testimony  is in support                                                              
of  the new  DEC regulations.    He stated  that  he believes  the                                                              
mixing  zone  matter   is  "best  and  most  fully   addressed  in                                                              
regulation"  and  that  "there  are  at  least  some  considerable                                                              
political  risks  to  the  fish"   by  pursuing  it  [implementing                                                              
statute].    Responding to  other  questions,  he stated  that  in                                                              
recent years  the Division of  Habitat Protection  was transferred                                                              
to DNR, which  established the previous long-term  ADF&G personnel                                                              
as DNR  staff.  He  opined that this  reorganization has  proven a                                                              
benefit to  the departmental workings.   He further  answered that                                                              
ADF&G  is  not  staffed  to  patrol   each  mixing  zone,  but  is                                                              
adequately staffed  to "pay  attention to issues  that seem  to be                                                              
of particular  concern to us."   He explained  that it  is ADF&G's                                                              
area  of  interest,  but not  the  department's  jurisdiction,  to                                                              
implement   case-by-case   checks.     He   maintained  that   the                                                              
departments work closely together to oversee areas of concern.                                                                  
9:10:24 AM                                                                                                                    
KERRY  HOWARD,   Director,  Office   of  Habitat  Management   and                                                              
Permitting  (OHM&P),   Department  of  Natural   Resources  (DNR),                                                              
stated that OHM&P  has 37 biologists statewide,  and described how                                                              
the  combined efforts  of the  involved  departments multiply  the                                                              
effectiveness  of the  biologists'  work.   Given the  synergistic                                                              
relationship of  the departments, she  said she has not,  nor does                                                              
she expect  to experience,  oversight problems.   The  OHM&P staff                                                              
does  significant "up  front"  reviews on  applications,  although                                                              
the  staff  is  not  expansive  enough  to  physically  view  each                                                              
project  that  is   permitted.    For  projects   that  "push  the                                                              
envelope", that  is require  regular monitoring, arrangements  are                                                              
made  with   the  companies   to  provide   data/reports   to  the                                                              
department, or the department may dispatch staff to the site.                                                                   
9:13:25 AM                                                                                                                    
REPRESENTATIVE KAPSNER  inquired as to  the number of  mixing zone                                                              
applicants prior  to the regulations  being changed, and  if there                                                              
has been  any difference realized  in the acceptance/denial  level                                                              
of applications following the change in regulations.                                                                            
MS.  HOWARD  explained  that  wastewater   discharge  permits  are                                                              
renewed on  a five-year  basis, which translates  to one  fifth of                                                              
the  existing facilities  [listed in  the packet]  coming due  for                                                              
permit  renewal  in any  given  year.   Additionally,  she  added,                                                              
every year realizes new project applications.                                                                                   
COMMISSIONER CAMPBELL  clarified that  the old regulations  are in                                                              
effect.     He  opined  that  he   did  not  expect  to   see  any                                                              
[significant] increase  in the number of applications  approved as                                                              
a result  of adopting  the proposed regulations.   He  stated that                                                              
given   the   continued   mitigation   requirements   and   strict                                                              
standards,  applicants   will  not  find  it  easier   to  receive                                                              
permits; the process will remain stringent.                                                                                     
9:16:26 AM                                                                                                                    
REPRESENTATIVE  KAPSNER asked if  there might  be potential  for a                                                              
single  operation,  with  the possibility  to  cause  "devastating                                                              
[environmental] effects" to receive approval.                                                                                   
COMMISSIONER CAMPBELL  assured the committee that  such a scenario                                                              
would not  be a possibility.   He pointed out that  any exceptions                                                              
require  an  adequate  mitigation  sequence,  which  has  been  in                                                              
place, with ADF&G, for decades.                                                                                                 
9:18:38 AM                                                                                                                    
REPRESENTATIVE  SEATON  asked  how many  freshwater  mixing  zones                                                              
exist,  the  number  that require  constant  monitoring,  and  the                                                              
level of inspections conducted in the last year.                                                                                
MS. HOWARD recollected  that a few of the seafood  processors, all                                                              
of  the placer  mines,  and the  three  large  mines discharge  to                                                              
fresh  water.   In further  response, she  stated that  monitoring                                                              
requirements are  based on the  potential risk to  the environment                                                              
and differ between  permits.  Also, DEC shares  the permitting and                                                              
inspection  requirements with  EPA.   She offered  to provide  the                                                              
exact numbers at a later time.                                                                                                  
9:20:20 AM                                                                                                                    
REPRESENTATIVE  PAUL SEATON,  Alaska State  Legislature, as  prime                                                              
sponsor,  explained  the differences  in  the current  versus  the                                                              
proposed  DEC regulations,  in regard to  fish specifications  and                                                              
relating to  spawning areas.   He went on  to explain that  HB 328                                                              
disallows  mixing zones  in any  spawning areas,  and expands  the                                                              
number  of  fish species  protected  under  DEC regulations.    He                                                              
pointed  out the  public concern  for protecting  the vitality  of                                                              
Alaska's fish species  and marketability, and indicated  the large                                                              
packet of  support accumulated for  HB 328.  He  further explained                                                              
that HB  328 allows  that a  settling pond,  once constructed  and                                                              
subsequently    inhabited    by    fish,   would    not    involve                                                              
reclassification  requiring   the  permittees  to   apply  for  an                                                              
exception,  but instead allow  the facility  to continue  seamless                                                              
operation under  their original  mixing zone  permit.   He pointed                                                              
out that, under  the proposed regulations, temporal  permits could                                                              
present a  problem.  A company  providing mixing  zone information                                                              
to DEC for  permitting purposes might observe a  stream mid-winter                                                              
[non-spawning season]  and note no  fish spawning, resulting  in a                                                              
temporal permit being  granted.  This permit could  potentially be                                                              
extended  and   re-permitted  ad  infinitum  under   the  proposed                                                              
regulations.  With  the appropriate statutory definition,  he said                                                              
he expects to be able to eliminate this sort of scenario.                                                                       
9:24:49 AM                                                                                                                    
REPRESENTATIVE  SEATON declared that  the intent  of HB 328  is to                                                              
ensure that  Alaska's waters and  fish species remain  healthy and                                                              
vibrant.  He pointed  out that the oil companies  have stated that                                                              
they do  not want or  need regulatory changes  to the  mixing zone                                                              
requirements, and  that the majority  of the mines do  not require                                                              
mixing zones.   However, he  warned the  committee to be  aware of                                                              
the  different  environmental  impacts and  concerns  that  placer                                                              
mines create.   Suspended solids  are the main concern  with these                                                              
mines.  He  pointed out that  a separate section of  DEC regulates                                                              
the  site-specific  criteria  required to  address  the  discharge                                                              
from placer  mines.  However, he  reminded the committee  that for                                                              
the purpose of  HB 328, only freshwater and spawning  areas, where                                                              
currently there are no mixing zones, are being addressed.                                                                       
9:27:42 AM                                                                                                                    
REPRESENTATIVE HARRIS  asked if there is any  on record opposition                                                              
to HB 328.                                                                                                                      
REPRESENTATIVE  SEATON acknowledged  that a  letter dated  January                                                              
10,  2006,  was  received from  the  [Alaska  Miners  Association,                                                              
Inc.].    He  summarized  that  the  letter  expressed  a  general                                                              
concern  for mines  to maintain  the ability  to apply for  mixing                                                              
zones in spawning  areas.  In addition, he stated  that the Donlin                                                              
Creek Mine has been  the only mine to contact him  and relate that                                                              
working   within   the   site-specific   exemptions   has   proven                                                              
difficult.   He clarified  that the  only exemption for  discharge                                                              
of  a mixing  zone into  a  spawning area,  which  HB 328  allows,                                                              
would be  for a  man-made ditch  or a settling  pond.   These man-                                                              
made waterways,  as HB 328  provides, would never  be reclassified                                                              
as spawning areas,  as is the current problem in  the Valdez area.                                                              
However,  he professed  the need  to  include language  in HB  328                                                              
which would exempt  municipalities even though they  may represent                                                              
discharge into  a natural water  system.  He envisions  that these                                                              
situations can be handled within the bill.                                                                                      
REPRESENTATIVE SALMON  questioned if larger  watersheds [migratory                                                              
routes versus  spawning areas],  such as  the Kuskokwim  and Yukon                                                              
Rivers, would be protected from harmful discharge under HB 328.                                                                 
REPRESENTATIVE  SEATON  responded  that  the  current  regulations                                                              
allow for  mixing zones to be  applied for in  non-spawning areas,                                                              
and this bill  does not go further  than what is already  in place                                                              
for  those  [migratory]   waterways.    In  response   to  further                                                              
questions,  he pointed  out  that establishing  a  time limit  for                                                              
municipalities  to become compliant  with water quality  standards                                                              
rather than  issuing random  waivers might be  a point  to review,                                                              
as  it is  not part  of what  HB  328 currently  proposes.   Also,                                                              
regarding  deadlocked/stocked  lakes,   he  said  that  introduced                                                              
species would  not necessarily profit  from HB 328; the  lake must                                                              
represent  a spawning  area of  fish  species specifically  listed                                                              
for protection in the bill.                                                                                                     
REPRESENTATIVE  KAPSNER asked  for a definition  of the  following                                                              
terms   in   the  proposed   regulations:   "technologically   and                                                              
economically  feasible",   "significantly  adverse   levels",  and                                                              
"spatially and temporally".                                                                                                     
MS. KENT referenced  the proposed DEC regulations  and read number                                                              
[18 AAC  70.] 240 (c)  (1), [packet page  1].  She  explained that                                                              
minimum  treatment requirements  are established  by both  federal                                                              
and state  regulations.  Once  these basic requirements  have been                                                              
met, this language  provides DEC the ability to  require treatment                                                              
that  may  go beyond  the  minimum  standards  as  long as  it  is                                                              
technologically and  economically "doable."  The  determination of                                                              
what  is technologically  and economically  feasible  is based  on                                                              
the  specific  types  of  discharge and  what  has  been  employed                                                              
elsewhere  to treat  similar  contaminants.   She  explained  that                                                              
there  are processes  that,  although  proven in  the  laboratory,                                                              
could  not economically  be employed  in actual  operations.   For                                                              
     We  have the  technological capability  to treat  sewage                                                                   
     to  drinking water  levels but  I don't  think you or  I                                                                   
     want to pay  the amount it would take to  flush a toilet                                                                   
     each time, to achieve that standard.                                                                                       
9:39:50 AM                                                                                                                    
MS.  KENT  addressed  the  regulatory   language  [18  AAC  70.240                                                              
(d)(1)] used to  describe acceptable adverse levels  of pollutants                                                              
in  a mixing  zone.   She  explained that  DEC  has established  a                                                              
risk-based level  for human health, and this  regulation prohibits                                                              
the pollutants exceeding that level.                                                                                            
9:41:49 AM                                                                                                                    
COMMISSIONER  CAMPBELL  explained  that the  terms  spatially  and                                                              
temporally  [18  AAC  70.240  (j)]  were  added  to  the  proposed                                                              
regulations to clarify  what the process would  be for determining                                                              
a spawning  area.   To illustrate,  he offered  that placer  mines                                                              
operate  under  timing  restrictions  to  avoid  [disturbance  of]                                                              
spawning areas primarily  for grayling.  The areas  are defined as                                                              
spawning  areas, disallowing  discharge  or physical  disturbance,                                                              
when  spawning fish,  eggs, or  alevins  are present.   He  stated                                                              
that nearly  all placer  mines discharge,  under this  definition,                                                              
save for the period  of time, about one and one-half  months, that                                                              
grayling are spawning.                                                                                                          
9:44:49 AM                                                                                                                    
REPRESENTATIVE  SEATON requested  that the administration  provide                                                              
him  the correct  and  extensive  definition of  spawning,  beyond                                                              
what  the  administrative  code   supplies.    He  also  requested                                                              
written  clarification that  "temporally  mixing  zones in  salmon                                                              
... spawning  areas would not then  be issued for the  other times                                                              
of  the  year."     Additionally,  he  requested   information  on                                                              
temporal  permits that  have  been issued  since  1995, and  asked                                                              
that the report  distinguish between a temporal  permit that would                                                              
provide access  for logging type  work [creating  temporary stream                                                              
disruption] versus  a continuous  pollutant discharge  type mixing                                                              
9:46:34 AM                                                                                                                    
RICHARD  HAHN stated  support for  HB 328,  but expressed  concern                                                              
about  the  temporal  permit  description   in  the  proposed  DEC                                                              
regulations.   He  stated  that spawning  streams  are year  round                                                              
hatcheries  and that  "no ...   private hatchery  would allow  any                                                              
kind of pollution  dilution of its water."  He  said that statute,                                                              
allowing  for the  possibility of  court  settlement, will  better                                                              
serve to protect spawning areas.                                                                                                
9:51:46 AM                                                                                                                    
REBECCA  ROBBINS,   Policy  Coordinator,   Yukon  River   Drainage                                                              
Fisheries Association  (YRDFA), stated  opposition to the  new DEC                                                              
regulations  and support  for HB  328.   She  described the  Yukon                                                              
River  fisheries,  how the  communities  of  the areas  depend  on                                                              
those  fisheries   for  personal  and  commercial   use,  and  she                                                              
expanded the  scope to include all  species of fish common  to the                                                              
Yukon River  area.  She said  that mixing zones and  water quality                                                              
standards,  as allowed  in  the  proposed DEC  regulations  would:                                                              
provide  for levels  of  pollution  otherwise prohibited;  pose  a                                                              
threat  to  anadromous  and  freshwater  fish;  compromise  Alaska                                                              
salmon product marketing;  impact the subsistence  food supply for                                                              
humans as well  as sled dogs; impair departmental  accountability;                                                              
compromise protection  for non salmon species; allow  for spawning                                                              
ground permits  to be  granted on a  mitigation plan  proviso; and                                                              
tender placer mine  impacts on grayling habitat.   The YRDFA views                                                              
HB 328  as a means  for continued and  expanded protection  of the                                                              
Yukon River fishery, she related.                                                                                               
9:54:08 AM                                                                                                                    
JOHN  TOPPENBERG, Director,  Alaska Wildlife  Alliance, said  that                                                              
the current  regulations are unclear.   He asked what is  meant by                                                              
the   regulatory   reference   to  "they   cannot   represent   an                                                              
unacceptable risk to  human health"; how is this  risk defined and                                                              
will  that  threshold  change  with  new  biomedical  discoveries.                                                              
Further,  he  asked should  such  a  standard change  occur,  will                                                              
those  experiencing  subsequent  health  consequences  have  civil                                                              
recourse.    He  asked  whether  fisheries  would  be  subject  to                                                              
similar  potential problems.   He  also  questioned the  statement                                                              
that  the department  does not  have staff  necessary [to  conduct                                                              
inspections],  which he  said is  cause for concern  in regard  to                                                              
the  potential abuse  [of the  system].   He  opined that  statute                                                              
would clarify and take care of the current regulatory loopholes.                                                                
9:56:07 AM                                                                                                                    
GEORGE  MATZ, Representative,  Cook Inlet  Alliance (CIA),  stated                                                              
support for  HB 328,  by paraphrasing  from the following  written                                                              
remarks  [original  punctuation  provided,  with  some  formatting                                                              
     The  Cook Inlet  Alliance wants  to thank  you for  your                                                                   
     attention  to  constituent  concerns  regarding  mixing-                                                                   
     zone  regulations  and  for  introducing  HB  328  as  a                                                                   
     practical, no nonsense solution to this dilemma.                                                                           
     Even    though   the    Department   of    Environmental                                                                   
     Conservation   (DEC)   adopted  modified   mixing   zone                                                                   
     regulations  earlier  this  week,  we think  HB  328  is                                                                   
     still needed for two compelling reasons:                                                                                   
     to  eliminate  ambiguity  and  possible  loopholes  that                                                                   
     still exist with DEC's adopted regulations, and                                                                            
     to   protect  spawning   areas   for   all  species   of                                                                   
     anadromous fish as well as resident fish.                                                                                  
     As you  know, there  have been a  few instances  where a                                                                   
     wastewater  discharge permit was  issued that allowed  a                                                                   
     mixing zone  and afterwards, salmon started  spawning in                                                                   
     the  zone.    While  these   situations  obviously  need                                                                   
     attention,   regulations  proposed   twice  by  DEC   to                                                                   
     correct the  problem were essentially throwing  the baby                                                                   
     out with  the bath.   The regulations  that DEC  adopted                                                                   
     on  January  12   are less  objectionable  with  respect                                                                   
     only  to salmon,  but still  allow open-ended  questions                                                                   
     that  could   turn  into  loopholes.     This   lack  of                                                                   
     certainty  gives   the  impression  that   a  wastewater                                                                   
     discharge  permit is  a negotiated  process, not one  to                                                                   
     meet  a  specified  standard  of water  quality.    Four                                                                   
     problems we see are:                                                                                                       
     1.    Who   defines  a  spawning  area?     The  adopted                                                                   
     regulations  say that DEC will  defer to the  Department                                                                   
     of Natural  Resources  "or" the Department  of Fish  and                                                                   
     Game.   These  two departments  have different  missions                                                                   
     and   often    different   perspectives    on   resource                                                                   
     development/conservation  issues,  which is  the way  it                                                                   
     should be.   Putting "or"  in the regulations  creates a                                                                   
     situation  where DEC could  arbitrarily decide  which to                                                                   
     pick,   thereby  introducing   bias   into  the   permit                                                                   
     2.  Spawning  areas need year around protection.   These                                                                   
     areas are  used throughout  the year for incubation  and                                                                   
     rearing  as well  spawning.   Nevertheless, the  adopted                                                                   
     regulations  leave  open  to question  the  spatial  and                                                                   
     temporal  definition of  a spawning  area.  Any  attempt                                                                   
     at narrowly  defining  a spawning area  might benefit  a                                                                   
     permit applicant, but not water quality or fish.                                                                           
     3.   DEC's  regulations  do  not describe  what  happens                                                                   
     when a  wastewater discharge  permit is requested  for a                                                                   
     water  body  that  is  not  in  the  Catalog  of  Waters                                                                   
     Important   for  Spawning,   Rearing  or  Migration   of                                                                   
     Anadromous  Fishes.   As described  on DF&G's web  site,                                                                   
     "The  Catalog  and  Atlas  are  important  because  they                                                                   
     specify which  streams, rivers  and lakes are  important                                                                   
     to  anadromous  fish  species   and  therefore  afforded                                                                   
     protection  under AS 41.14.870.   Water bodies  that are                                                                   
     not  'specified' within  the Catalog  and Atlas are  not                                                                 
     afforded   that  protection….     Based  upon   thorough                                                                   
     surveys  of   a  few  drainages  it  is   believed  that                                                                   
     [specified  water bodies]  represents less  than 50%  of                                                                   
     the  streams,   rivers  and   lakes  actually   used  by                                                                   
     anadromous species."                                                                                                       
     While large  projects that need an Environmental  Impact                                                                   
     Statement  may provide  this information  if it did  not                                                                   
     previously  exist,   our  concern  is  more   about  the                                                                   
     cumulative  impacts  from  many  smaller  projects  that                                                                   
     need  wastewater discharge  permits but  don't have  the                                                                   
     means  or   requirement  to  undertake   expensive  fish                                                                   
     habitat  studies.   If mixing  zones  in spawning  areas                                                                   
     are to  be allowed, the  Catalog needs to be  completed.                                                                   
     Hence, the  fiscal impact of  allowing mixing  zones for                                                                   
     anadromous  fish other than  Pacific salmon should  have                                                                   
     been included in this regulation.                                                                                          
     4.     DEC's  adopted   regulations  are   unnecessarily                                                                   
     convoluted.   Section (f) says that "a mixing  zone will                                                                   
     not  be  authorized  in a  spawning  area  for"  several                                                                   
     species  of fish,  but then  says  in (g)  that it  "may                                                                   
     authorize a  mixing zone in  a spawning area"  for these                                                                   
     very  same species,  but certain conditions  have to  be                                                                   
     met.   But if they  can't be met,  a mitigation  plan is                                                                   
     acceptable  "using  the methods  established  in 11  AAC                                                                   
     195.010."     When  you  read  the  Catalog   of  Waters                                                                   
     Important   for  Spawning,   Rearing  or  Migration   of                                                                   
     Anadromous  Fishes referred  to in  11 AAC 195.010,  you                                                                   
     don't find any  methods.  The closest thing  you find is                                                                   
     a  section that  describes the  information needed  when                                                                   
     applying for  a Fish Habitat  Permit.  This  falls short                                                                   
     of being a method.                                                                                                         
     Because  of  its obvious  importance,  the  mixing  zone                                                                   
     issue  needs  to  be  firmly  resolved  via  legislative                                                                   
     statute,   not  confusing   administrative   regulation.                                                                   
     What  you  propose in  HB  328  is a  simple,  straight-                                                                   
     forward  resolution  to this  problem.   It  provides  a                                                                   
     clear policy statement that should become law.                                                                             
     Furthermore,  HB 328  protects  the spawning  areas  for                                                                   
     all  species  of  anadromous   fish  (not  just  Pacific                                                                   
     salmon)  as well  as resident  fish.   Interest in  this                                                                   
     issue extends  to those who  sport and subsistence  fish                                                                   
     as  well  as   those  who  commercially  fish   and  are                                                                   
     primarily interested  in salmon.  Sport  and subsistence                                                                   
     fishers   want  a   sustainable   harvest  from   clean,                                                                   
     unpolluted  water of all species  of anadromous  fish as                                                                   
     well as  resident fish.   Without HB  328 that  might be                                                                   
     jeopardized in areas where mixing zones are allowed.                                                                       
     We thank you for this opportunity to testify.                                                                              
9:59:47 AM                                                                                                                    
NORMAN  VAN VACTOR,  Manager, Peter  Pan  Seafoods, Inc.,  stated,                                                              
echoed  Ms.  Robbins concerns,  in  his  support  of HB  328,  and                                                              
stated,  "If  it  ain't  broke,   why  are  we  trying  to  change                                                              
something."   He  said he  opposes the  proposed DEC  regulations,                                                              
and expects  that HB  328 will close  some significant  regulatory                                                              
[HB 328 was held over.]                                                                                                         

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