Legislature(2001 - 2002)
02/27/2002 01:00 PM House RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 421-WATER USE AND APPROPRIATION [Contains discussion of HB 392] CO-CHAIR SCALZI announced that the final order of business would be HOUSE BILL NO. 421, "An Act relating to water use and appropriation." Number 1162 REPRESENTATIVE FATE moved to adopt CSHB 421, version 22- LS1334\L, Luckhaupt, 2/27/02, as the working document. There being no objection, Version L was before the committee. Number 1150 JENNIFER YUHAS, Staff to Representative Beverly Masek, Alaska State Legislature, presented HB 421 on behalf of the House Resources Standing Committee, sponsor. Ms. Yuhas explained that last year there was a sunset attached to the temporary water permits. The intent was to review the issue over the interim. She informed the committee that water is a public-trust resource for which the constitutional responsibility of the legislature to [distribute] that resource in the public interest has been statutorily designated to the Department of Natural Resources (DNR). She noted that she had reviewed the adjudication process in general for Alaska; during her review of this process, the department had produced draft regulations to change the process. MS. YUHAS reported that she'd attended some meetings on the proposed regulations; issues brought up were, first, public dissatisfaction because of a seemingly arbitrary [distribution] of the public-trust resource and, second, inability to get access to records. Therefore, this bill simply addresses those two complaints, by directing DNR to develop a standardized procedure so that there is something to check against in regard to ensuring that [water permits] are being distributed in a fair manner, as well as addressing the public's need to access their records. Number 0928 BILL TEGOSEAK, Executive Director, Inupiat Community of the Arctic Slope (ICAS), testified via teleconference, noting that the ICAS is a federally recognized, regional tribal government encompassing eight sovereign tribal governments. Mr. Tegoseak informed the committee of the difficulty the North Slope tribal members have experienced in obtaining information from the Division of Mining and Water in regard to water usage. MR. TEGOSEAK emphasized, "My comments are not intended to reflect opposition to onshore oil development, because our tribal members support responsible oil development onshore, and we all benefit from such responsible development." However, there is the need to ensure sufficient public water supplies, especially in winter, and sufficient water to maintain subsistence resources. "These goals are not incompatible with onshore oil development," he suggested. MR. TEGOSEAK explained that the experience of the regional tribal government has been that the division hasn't provided access to information on past water usage or current applications in a reasonable fashion. Therefore, [the regional tribal government] can't be sure its water sources are well managed. Furthermore, DNR appears to restrict access to public files, as noted in HB 392. As an example, he offered his belief that the division recently implemented a $50-per-hour charge to obtain agency files, prepare files for inspection, and assist the requestor with file inspection; this is in addition to a $22.50-per-hour copying charge. Number 0703 MR. TEGOSEAK said although [the tribal governments aren't] opposed to paying reasonable fees for these services, DNR appears to be using this policy to limit the availability of records. Moreover, for individuals requesting records in order to comment on a project on the North Slope, the department has delayed access on the grounds that it's too busy processing the temporary water use permits. He said that is unacceptable. He pointed out that temporary water use permits don't require public notice; he maintained, therefore, that the least DNR could do is notify [the entity], once a permit is issued, of how much water the permit is for, how long it is for, and from which lake the water is being taken. However, DNR has established significant hurdles to this access to public records. MR. TEGOSEAK recalled DNR's past claims that it needed more money for its water-permitting program. However, now the department seems to be placing roadblocks in the public's path. "We cannot see what the Department of Natural Resources has done with this funding," he charged. He reiterated the need for access to public documents in a timely fashion. He expressed the need for DNR to develop a process in which the department would fax documents in a timely fashion or make them available on the Internet. Mr. Tegoseak explained that he supports Section 1 of HB 421 because it may achieve this vital public notice. He urged the committee to add a provision to require that only copying charges be paid. Number 0456 TAD OWENS, Executive Director, Resource Development Council (RDC), testified via teleconference. He explained that RDC is a private, nonprofit trade association that represents individuals and companies from Alaska's mining, timber, tourism, fisheries, and oil and gas industries. Its mission is to grow Alaska's economy through responsible development of the state's natural resources. MR. OWENS announced that RDC supports the changes to HB 421 encompassed in Version L. He explained, "As a rule, RDC supports efforts to clearly define and streamline the permitting procedures that are used by Alaska's resource agencies. And we feel that HB 421 in its current form is an important, incremental step towards this standard." However, Mr. Owens noted that RDC has concerns about possible fiscal impacts of the bill and therefore encourages the legislature to work closely with DNR in order to ensure that the department is able to meet the intent of the bill's language without additional funding. Number 0305 JAN KONIGSBERG, Alaska Public Waters Coalition, testified via teleconference, bringing attention to the process issues that Version L addresses. He said the coalition is specifically concerned with DNR's process that has had the effect of limiting public access to public information on water use and applications for water use. In the last several months, the coalition has had several meetings that were well attended by the public and coalition members. During those meetings, there were reports that DNR has implemented processes to limit access by charging fees for "file review" and "file preparation." He expressed concern with the monetary impact of this policy. More important, the question is why public servants are potentially filtering public information in these records. He said [the coalition] hopes this isn't an effort by the department to "sanitize" the records. He explained: Water is a constitutional-protected resource. Information in state files on water use should also be freely given and constitutionally protected as well, Otherwise, there can be no public or legislative oversight of DNR's water permitting program. MR. KONIGSBERG announced the coalition's support of the provisions of Section 1. He indicated hope regarding the standardized procedure and access to public documents, along with assurances that DNR will observe the current regulations - five free hours before anyone in the public is charged a fee. Number 0065 PAM MILLER, Arctic Connection, testified via teleconference. The owner of a small business for which part of the work involves consulting on water-resource issues around Alaska, Ms. Miller mentioned that she'd participated in the American Water Resources Association - Alaska Section meeting last April, at which time surface waters were discussed. Ms. Miller said she was testifying in support of public access to DNR's water records and a standardized procedure as described in Section 1 of HB 421. Ms. Miller explained that she is concerned about water in general, due to what has happened in places such as California. TAPE 02-11, SIDE A Number 0001 MS. MILLER indicated she'd attended a meeting with DNR regarding its proposed regulations; although she'd requested a simple listing of all the permits, she hadn't yet seen that list. She related other personal experiences regarding the difficulties with DNR's process involving access to the public record. In regard to HB 421, Ms. Miller said she views Section 1 as helpful in the research she has done. She pointed out that AS 44.62.312 in part says: (a) It is the policy of the state that (1) the governmental units mentioned in AS 44.62.310(a) exist to aid in the conduct of the people's business; (2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted openly; (3) the people of this state do not yield their sovereignty to the agencies that serve them; MS. MILLER concluded by again expressing concern with public information on water resources. Number 0369 ART GRISWOLD, Farmer, testified via teleconference in support of HB 421. He noted that he is very interested in HB 392 because it would provide agriculture with a secondary position to domestic water. Mr. Griswold expressed the need to know what wells are recorded when one purchases property. Furthermore, he asked how someone would know where and when one's irrigation well would be mixed up with one's domestic water. Without access to domestic water usage closest to one's irrigation wells, there is no knowledge of the impact on [domestic waters]. Having this information on the Internet would provide much more information. MR. GRISWOLD offered his belief that this legislation would be beneficial. However, he expressed concern with a comment [in another hearing] that it would take DNR five years to catch up on the water permitting. Therefore, he questioned how that backlog could be addressed while providing anything up-to-date on the Internet. Number 0524 SUE SCHRADER, Alaska Conservation Voters (ACV), noted that the committee packet should include her position paper. She highlighted the fact that ACV supports the provisions in Section 1 of HB 421. Having this information more readily available to the public will be beneficial to most Alaskans, she offered. Number 0611 BOB LOEFFLER, Director, Division of Mining, Land and Water, Department of Natural Resources, testified via teleconference. He said, "Quite frankly, I don't understand where some of this is coming from." He related his belief [that the division] is fully committed to providing everyone public information. Mr. Loeffler explained [the division's] policy that its files are open to the public at all times. He pointed out that if someone makes an appointment, the file may be ready. However, [without an appointment] the file may be [in use by staff] and thus it's harder [to have the file available immediately]. MR. LOEFFLER informed the committee that people are charged $.25 a page for copies and $50 for research. He said that since he has been director, to his knowledge, only Greenpeace had been charged $50; that was because Greenpeace had requested over 100 files, which had to be pulled from archives and a variety of other places. He acknowledged the possibility that an employee had told Ms. Miller she'd be charged $50; however, he said that isn't the division's policy. "The notion that we hide public records or, as was implied, that we were shredding public records is just not true," he stressed. Number 0756 MR. LOEFFLER advised the committee that [division personnel] had spent over eight hours discussing the regulations with representatives, including Mr. Konigsberg and Ms. Miller, from a variety of environmental groups; no one had brought up issues regarding access to public records. Therefore, he noted his slight shock at these accusations. Mr. Loeffler reiterated his belief that the division's files are open to the public. If there is information otherwise, he suggested [informing] him. MR. LOEFFLER turned to Section 1 and informed the committee that there are many records available on the Internet, but those are a bit cumbersome. Mr. Loeffler said he wasn't sure what [Section 1] was requesting. He pointed out that if the desire is to make all the division's files available on the Internet, that would amount to 1.4 million pieces of paper. Number 0858 CO-CHAIR SCALZI related his belief that the intent is to place as much information as possible on the Internet. He said he didn't think it would be mandated to do it now, which he viewed as a [House Finance Committee] decision. The bill urges that the division move in the direction [of placing as much information on the Internet as possible]. MR. LOEFFLER said he was fine with that because he believes [the division] works for the public. Number 0930 MS. YUHAS turned to Mr. Loeffler's comment that from the meetings with the environmental groups, he was unaware of any concerns regarding public access. However, at those very meetings was where she became aware that there was a problem with accessing public records, she said. Therefore, the bill was introduced. Ms. Yuhas said she feels that this access problem was evident at those meetings. MS. YUHAS expressed the need for clarification from the department regarding its definition of "significant use of water." Last year, the legislature gave the department $300,000 to address the backlog. [That money was used to] create 5.5 new positions. Through regulation, it appears that the backlog will be eliminated because of the definition of significant use - 50,000 gallons a day - as well as the department's application requirement [for use] above 50,000 gallons, although the application won't be processed unless there is a conflict or the gallon usage becomes 50,000 gallons a day. Therefore, most of the backlog would be incorporated. Number 1042 MS. YUHAS said the department is on record as not being happy with Representative Harris's bill regarding defining significant use. Therefore, she requested clarification from the department on its definition of significant water use, on whether the department feels it should be defined, as well as how the department intends to address the backlog through defining significant use. MR. LOEFFLER answered that significant use is currently defined in regulation as 500 gallons a day or 5,000 gallons over ten days. The [division] had proposed regulations changing that, although analysis of the public comment hasn't been completed. He explained that those regulations would've changed significant use to 5,000 gallons a day from an anadromous fish stream or 50,000 from groundwater or a nonanadromous fish stream. No decision has been made on that. He commented, however, that it would only have limited impact on the backlog. Number 1138 MS. YUHAS pointed out that the fiscal note will be attached to HB 421 in order to create a few more positions at DNR, which she feels is a cheaper route than losing more lawsuits due to not adhering to the public process. Ms. Yuhas urged the department to better address its responsibility to the public by reviewing its monetary requirements to meet what HB 421 is requesting. She further urged the department to be prepared to articulate those requirements to the House Finance Committee. Ms. Yuhas said, "I believe that the department may expect a higher level of scrutiny this year from the elected officials who appropriate these funds in light of last year's award. We still don't know what exactly is happening with that $300,000." Ms. Yuhas urged the committee to report the bill from committee. Number 1220 REPRESENTATIVE FATE moved to report CSHB 421, version 22- LS1334\L, Luckhaupt, 2/27/02, out of committee with individual recommendations and the forthcoming fiscal note. There being no objection, CSHB 421(RES) was reported from the House Resources Standing Committee.
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