Legislature(2009 - 2010)BARNES 124
02/24/2010 01:15 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB217 | |
| HJR40 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 217 | TELECONFERENCED | |
| *+ | HJR 40 | TELECONFERENCED | |
| + | TELECONFERENCED |
HJR 40-COOK INLET/KACHEMAK BELUGA POPULATION
2:24:47 PM
CO-CHAIR NEUMAN announced that the next order of business is
HOUSE JOINT RESOLUTION NO. 40, Opposing the proposed designation
by the National Marine Fisheries Service of 3,000 square miles
of upper Cook Inlet, the mid-inlet, all of the inlet's western
shores, and Kachemak Bay as critical habitat for beluga whales.
2:25:23 PM
REPRESENTATIVE CHARISSE MILLETT, Alaska State Legislature,
sponsor of HJR 40, stated that the resolution is of utmost
importance to the entire state of Alaska because a critical
habitat listing in Cook Inlet would impact the port through
which 85 percent of the state's goods and products travel. The
resolution would tell Washington, D.C., that Alaska thinks a
critical habitat listing is ahead of its time. The listing was
preceded by the over-harvest of belugas from subsistence
hunting. A revised harvest management plan was instituted in
2000 and since then the belugas have increased about 4 percent a
year. The National Marine Fisheries Service (NMFS) has proposed
a critical habitat of 3,000 square [miles], which would affect
every business that comes through the Port of Anchorage, as well
as Representative Seaton's district.
REPRESENTATIVE MILLETT pointed out that it is possible to stop a
critical habitat designation by putting together a good economic
base for why critical habitat should not be administered. In
this situation, the National Marine Fisheries Service has
grossly understated the economic impacts. For example, the
service has stated that the impact would be $600,000 over the
next decade; however, other folks have said $600,000 is the cost
of just one permitting application and the impact statements on
that permit. This resolution asks the National Marine Fisheries
Service to slow the process down and take into consideration the
economic impacts of a 3,000-square-mile critical habitat area.
2:28:01 PM
CO-CHAIR NEUMAN moved the adoption of the proposed committee
substitute (CS) for HJR 40, labeled 26-LS1376\E, Kane, 2/4/10,
("Version E"), as the working document.
REPRESENTATIVE EDGMON objected for discussion purposes.
2:28:43 PM
JEFF TURNER, Staff, Representative Charisse Millett, Alaska
State Legislature, explained that the three changes in Version E
are based on recommendations received from the Municipality of
Anchorage. On page 2 of the original resolution, lines 13, 14,
16, 19, and 27, the word "will" was replaced by the word "may".
He related that the municipality is in the process of trying to
persuade the National Marine Fisheries Service that the needs of
the beluga whales around the city and in Cook Inlet have already
been completely addressed; therefore, the municipality wanted to
soften the language a little bit. On page 2 of the original
resolution, lines 22 and 23 were struck and a different whereas
was inserted which expands on the whereas that was replaced by
stating that the Port of Anchorage has already fully addressed
the conservation needs of Cook Inlet beluga whales. On page 3,
lines 7-10, of the original resolution, the whereas was removed
that talked about the potential increased cost of treating
wastewater that is discharged into Cook Inlet. The city asked
this be deleted because it feared this might insinuate that the
current wastewater discharge into the inlet could be harming the
belugas or needs to be changed. The city steadfastly believes
that the current wastewater discharge is not harming the beluga
whales or the environment of Cook Inlet.
2:30:23 PM
MR. TURNER, in response to Co-Chair Neuman, said three people
are available via teleconference to answer questions regarding
the wastewater discharge.
REPRESENTATIVE EDGMON removed his objection to adopting Version
E as the working document. There being no further objection,
Version E of HJR 40 was before the committee.
REPRESENTATIVE MILLETT stated she does not think the Endangered
Species Act (ESA) is a management plan that works for Alaska and
managing by the ESA is detrimental to the state. The more vocal
Alaska is to the federal government, the better the state
controls its destiny. In response to Co-Chair Neuman, she
requested that Mr. Arne Fuglvog be able to testify.
2:32:49 PM
ARNE FUGLVOG, Legislative Assistant to U.S. Senator Lisa
Murkowski, pointed out that the public comment period ends March
3, 2010, should the legislature's goal be to submit the
resolution by the deadline. He added, however, that the agency
typically allows a little bit of leeway for other government
bodies. He said this issue goes back to the first petition in
1999 and there have been multiple petitions since then. The
listing was made in 2008. Under the Endangered Species Act an
agency is required by law to designate and in this case the
National Marine Fisheries Service is the agency of jurisdiction.
The State of Alaska is working on extensive comments and he
thinks it would be helpful to have the resolution go back as a
comment from the legislature.
MR. FUGLVOG noted that the Secretary of Commerce has a lot of
discretion, unlike a listing decision which is based only on
science and in which economics do not matter. For example, a
$100 million economic loss was projected from listing the
Steller's sea lion and that did not play a factor in the listing
decision. After lawsuits shut down the fisheries, the cost was
somewhere between $50 million and $100 million.
2:35:50 PM
MR. FUGLVOG said the National Marine Fisheries Service had three
alternatives: 1) list everything in Cook Inlet, 2) list nothing
in Cook Inlet, and 3) the alternative that was chosen. He
maintained that the data describing some of the areas is weak,
especially along the western Cook Inlet shore, and he urged that
this go into the comments.
MR. FUGLVOG pointed out that the National Marine Fisheries
Service and the U.S. Fish and Wildlife Service treat critical
habitat very differently. For example, in a U.S. Fish and
Wildlife Service document, out of 1,231 species listed as either
threatened or endangered, critical habitat has been designated
for only 150. Thus, a little over 10 percent of species have
critical habitat designated for them. The U.S. Fish and
Wildlife Service basically stopped the declaration of critical
habitat in the mid-1990s because it was expending so much staff
and dollars on critical habitat that it could not get to all the
litigation and petitions to list species. The exception is the
polar bear for which the agency has proposed to list critical
habitat.
2:37:19 PM
MR. FUGLVOG related that the U.S. Fish and Wildlife Service has
stated that critical habitat designations usually afford little
extra protection to most species, and in some cases it can
result in harm to the species. This harm may be due to a
negative public sentiment to the designation or inaccuracies in
the initial area designated. However, the National Marine
Fisheries Service disagrees with that and will be designating by
law. He said he thinks that if the National Marine Fisheries
Service does not do this, it would get litigated.
MR. FUGLVOG added that with this resolution the legislature has
an opportunity to provide meaningful comments for the public
comment record. Given all the issues in Alaska related to the
Endangered Species Act, he thinks the legislature would be wise
to pay attention to this one and provide input. For example, as
part of his work for Senator Murkowski he is currently dealing
with 10 listings in Alaska.
2:38:52 PM
REPRESENTATIVE TUCK requested Mr. Fuglvog to provide examples of
how critical habitat designation has been harmful to a species.
MR. FUGLVOG related that the U.S. Fish and Wildlife Service
believes that in some cases the designation of critical habitat
highlights where the species is found and people then know where
the animals are located to the animals' detriment. Regarding
this critical habitat listing for beluga whales, the National
Marine Fisheries Service is saying that the benefits to the
species are clear; the U.S. Fish and Wildlife Service takes a
different approach.
2:40:02 PM
REPRESENTATIVE SEATON clarified that the endangered species
listing has already taken place, so critical habitat designation
would mean that human impacts on the habitat must be looked at.
However, even if critical habitat is not designated, all the
government agencies and industries will still have to look at
the impacts on the beluga whales themselves. The resolution is
not challenging that, it is challenging the designation of the
entire [3,000 square mile] unit.
MR. FUGLVOG replied correct. The benefits of the listing to the
species, and interactions between activities, will still occur
regardless of whether there is critical habitat designation.
The agency says the added benefit is the Section 7 consultation
which provides that any activity in the critical habitat must
consult with the National Marine Fisheries Service. In this
consultation the agency evaluates a project and how it might
adversely affect both the species and the critical habitat, and
a determination is made as to whether there needs to be
mitigation of the impacts on both the species and the critical
habitat. Therefore, it is an extra layer.
2:41:32 PM
REPRESENTATIVE SEATON surmised that in regard to an activity
taking place where there are whales, the consultation and
mitigation will have to take place no matter what. However, if
critical habitat is designated for areas like the west side of
Cook Inlet where whales have not been seen for 10 years, the
consultation would be required because it might influence what
has been designated as critical habitat even though there might
not be any whales there.
MR. FUGLVOG answered correct.
2:42:16 PM
RICHARD BERKOWITZ, Pacific Coast Director, Transportation
Institute, offered his organization's support of HJR 40. He
said the members of his organization are all U.S. Registry with
U.S. crews, U.S. built, and U.S. flagged vessels. Members most
directly impacted by this critical habitat designation include
Horizon Lines and TOTE. With respect to safety, these companies
have made up to five transits per week into Cook Inlet in all
sorts of weather in every season and have an unblemished record
of safety and risk avoidance, as well as no spills and no whale
strikes in all that time. They do not pollute the waters with
ballast because TOTE has no ballast and Horizon Lines does not
discharge ballast in Cook Inlet.
MR. BERKOWITZ said one of the key issues is that because of the
numerous trips each week that these companies are able to
provide into Anchorage, which in turn supplies much of the
state, the whole system is just-in-time. Because of this
frequent service, the cargo can be moved straight out so there
is no warehousing. This saves Alaska's consumers over $70
million in annual warehousing distribution costs and provides
Alaskans with fresh vegetables and milk. The potential changes
that could occur as a result of this critical habitat
designation could seriously impact that just-in-time cargo
distribution. He urged the resolution be moved in time to meet
the March 3, 2010, public comment deadline.
2:45:15 PM
REPRESENTATIVE TUCK asked how a whale strike is determined,
given the large size of the vessels.
MR. BERKOWITZ responded that "to their knowledge, there has not
been a whale strike." He allowed that there have been strikes
in other ports in other areas and when this happened the whale
ended up on the bulbous bow of the vessel and could be seen.
REPRESENTATIVE TUCK requested Mr. Berkowitz to elaborate on how
critical habitat designation would affect TOTE and Horizon
Lines.
MR. BERKOWITZ replied the key issue is that Cook Inlet has lots
of ice and up to 22-foot tides. Missing the tide can mean a 12-
hour delay getting into port and the just-in-time system does
not afford this kind of variability. If a vessel was asked to
go slow or to wait it would impact the just-in-time cargo and
also the safety of the vessel, particularly in ice.
2:47:05 PM
REPRESENTATIVE TUCK asked whether critical habitat designation
would require the vessels to slow down.
MR. BERKOWITZ answered that that is unknown, but in the right
whale situation on the East Coast ships have been required to
slow significantly during certain times of the year and to avoid
certain areas. He added that there are also significant
problems with silt in Cook Inlet and the last thing the
Transportation Institute wants to see is a ban on dredging which
could affect vessel safety. It is known what has happened
elsewhere and his organization does not want to see it
replicated in Cook Inlet.
2:47:57 PM
JOHN MCCLELLAN, P.E., Tyonek Native Association, testified that
his association supports HJR 40 because it believes that
designating all of this area would raise a barrier to the $18
billion-worth of new development that is seen for west Cook
Inlet on or near Tyonek's land. Tyonek does not believe that
all habitat is critical habitat and this is regulatory over-
reach.
MR. MCCLELLAN said Tyonek believes that the cause for the beluga
whale not restoring its population is the lack of king salmon.
The villagers who have lived with the beluga whale and the
salmon for years know that the beluga whale is dependent upon
king salmon during the critical nursing period and the belugas
will not come back until the king salmon come back. He cited
recent examples of similar events. In San Francisco, CA, the
sea lions disappeared from Pier 39 and scientists there said the
sea lions left because their food source left. In Puget Sound a
researcher has tied the killer whale population to the salmon
population. He related that when Tyonek asked the National
Marine Fisheries Service if it had correlated the drop of Cook
Inlet's belugas with the drop of king salmon, the service said
no, it did not have the data available.
2:51:51 PM
JASON BRUNE, Executive Director, Resource Development Council
(RDC), supported HJR 40. He spoke from the following written
statement [original punctuation provided]:
RDC members include all of the major, and many of the
minor, parties who will be adversely impacted by the
proposed designation of over 3,000 square miles of
critical habitat in Cook Inlet. From local
communities, to oil and gas, mining, tourism, and
fisheries members, all stand to be negatively affected
by this proposal. Meanwhile, this designation will
result in no added benefit to the belugas.
RDC members who live, recreate, and work in and around
Cook Inlet are committed to the recovery of the beluga
whale. It is important to remember that NMFS'
biologists have acknowledged the sole cause for the
population decline of Cook Inlet beluga whales was the
subsistence harvest that transpired in the 1990s. The
multitude of activities in Cook Inlet that will
absolutely be impacted by this critical habitat
proposal were not the cause of the decline, nor are
they an ongoing threat to the whale's recovery.
Since statehood, economic and community development
activities have occurred in Cook Inlet. Indeed, these
activities have long co-existed with the belugas.
Responsible community and economic development have in
no way adversely impacted these whales or impeded
their recovery. Unfortunately, this designation, if
finalized will lead to additional requirements, costly
delays, and lengthy 3rd party litigation. There is no
other way to put it.
The ESA requires economic effects to be taken into
account when designating critical habitat. In fact,
areas may be excluded from critical habitat if it is
determined that the benefit of such exclusion
outweighs the benefit of specifying such areas as
critical habitat.
The economic analysis that has been completed as part
of this proposal is grossly inadequate. In fact, only
direct consultation costs are acknowledged as "costs"
in this analysis. Nothing further is considered. The
agency's estimates are less than $600,000 over the
next decade. Frankly, this is naïve and way
understated.
Because of this, RDC has hired a contractor, Resource
Dimensions, to undertake an independent economic
analysis to attempt to more accurately identify the
costs of this proposal. These economists have been
conducting in person and telephone interviews with
many of the potentially affected entities. We are
working very closely with the State of Alaska
Department of Fish and Game as well as the Office of
Economic Development on the development of this
analysis and we will be providing the results of this
analysis to the agency. We hope NMFS will use these
results as a boilerplate to conduct a more robust
economic analysis and to that end, I wholeheartedly
endorse the second action item of this resolution
which calls for a more robust economic analysis.
In conclusion, the benefits of designating critical
habitat in most, if not all of the areas that have
been proposed is outweighed by the economic impacts it
will have. In addition, critical habitat will provide
no added benefit to the Cook Inlet belugas and
therefore, I enthusiastically endorse HJR40.
2:55:41 PM
BRUCE WEBB said he is the manager of land and regulatory affairs
for Aurora Gas, a small independent gas exploration and
production company in Cook Inlet. Aurora Gas supplies about six
percent of the gas to the Cook Inlet market. He recently
attended the North American Petroleum Expo in Houston, Texas,
where he was shocked to learn of the stigma that has happened
from this proposed critical habitat designation; for example,
some people at the expo thought drilling could no longer occur
in the Cook Inlet because of the beluga whale. He predicted
that if the habitat designation goes through it will open the
floodgates to frivolous litigation that will delay and possibly
cancel oil and gas exploration in the Cook Inlet. He therefore
supports HJR 40 because critical habitat designation would
negatively impact oil and gas exploration and development.
2:58:12 PM
STACY SCHUBERT, Intergovernmental Affairs Director, Mayor's
Office, Municipality of Anchorage, supported the proposed
committee substitute for HJR 40 on behalf of Mayor Dan Sullivan.
She said this is a significant issue to the Anchorage community
and its partners across the state. She testified from the
following written statement [original punctuation provided]:
The Municipality of Anchorage (MOA) is committed to
ensuring the long-term health and productivity of the
Cook Inlet and to the conservation of its beluga
population. Cook Inlet supports significant oil and
gas production, fishing, mining and a year-round
tourism industry to the benefit of all Alaskans. The
Port of Anchorage is the essential conduit through
which passes an astounding 85% of all goods entering
the state, and 26% of the tonnage of U.S.
international air freight moves through the city via
Ted Stevens Anchorage International Airport.
Anchorage's strategic location continues to be vitally
important to our nation's overall defense strategy.
We are an excellent staging point for an array of
military operations and equipment that is deployed -
and redeployed - through our Port in support of our
national strategic interests.
The proposed critical habitat designation adds nominal
value to the protection of the Cook Inlet beluga. It
is fundamentally vague, and because the Endangered
Species Act already applies, the MOA is addressing the
needs of the beluga responsibly, directly, and with
best available science. The projections of economic
costs associated with the proposed designation do not
pass the red face test; the potential for new
regulations, delayed development and increased costs
will most certainly total more than the $575,000 that
NMFS included along with its proposal.
MS. SCHUBERT stated that for the aforementioned reasons the
Municipality of Anchorage opposes the proposed critical habitat
designation. She urged expeditious passage of the resolution so
it can be included in the NMFS's public record.
3:00:32 PM
GRAHAM SMITH, Communications and Membership Director, Alaska
Support Industry Alliance, supported HJR 40 and urged it be
passed in time to meet the public record comment deadline. He
testified from the following written statement [original
punctuation provided]:
The Alliance is a trade organization representing
nearly 500 businesses, organizations and individuals
that provide goods and services to Alaska's oil, gas
and mining industries and more than 40,000 jobs for
Alaskan workers. Our livelihoods depend on a healthy
Alaska oil & gas industry and investment climate.
As a result of depressed business activity in Alaska's
oil patch, hundreds of Alaskan oil field workers and
professionals have been laid off in recent months.
New exploration and development efforts are necessary
to sustain Alaska's economy and the livelihoods of our
members. A critical habitat designation would have a
crippling impact on the already-struggling oil and gas
operations in Cook Inlet. It would risk billions of
dollars in future projects and could ultimately cost
Southcentral Alaska residents and companies hundreds
of millions of dollars to comply with new regulations
and standards.
As you have already heard, National Marine Fisheries
Service biologists have acknowledged the sole cause
for the population decline of Cook Inlet beluga whales
was the subsistence harvest that transpired in the
1990s.
Oil and gas operations in Cook Inlet have gone on for
decades without contributing to the population decline
or impeding the recovery of the Beluga whales, and we
believe that further exploration and development of
Cook Inlet resources can occur without adversely
affecting the Beluga population.
3:02:52 PM
CO-CHAIR NEUMAN closed public testimony after ascertaining no
one else was available to testify.
REPRESENTATIVE SEATON stated that he will be writing and
submitting personal testimony on this issue as he believes
designation of the full Cook Inlet is way too broad. He is not
opposed to designating critical habitat, but the current
proposal of the entire range of the animal is too much. He
offered his support for HJR 40.
REPRESENTATIVE TUCK related that for years he has heard the
beluga decline is directly tied to the king salmon runs, as was
stated by the Tyonek Native Association. Therefore it is hard
to say that industry, shipping, or drilling has had anything to
do with the decline.
3:04:03 PM
CO-CHAIR JOHNSON moved to report the proposed committee
substitute for HJR 40, labeled 26-LS1376\E, Kane, 2/4/10, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHJR 40(RES) was
reported from the House Resources Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 40 v.R.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| Changes to HJR 40.R.doc.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 Letter of Support MOA.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| CSHJR 40 v.E.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 - Sponsor Statement.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 zero Fiscal Note.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| CSHB 217.R amendment R.3.pdf |
HRES 2/24/2010 1:15:00 PM |
HB 217 |
| CSHB 217.R amendment R.4.pdf |
HRES 2/24/2010 1:15:00 PM |
HB 217 |
| HJR 40 Letter of Support Springer.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 Letter of Support TI.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 Letter of Support Webb.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 Info 2.12.10.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |
| HJR 40 N Star Ltr 2.23.10.pdf |
HRES 2/24/2010 1:15:00 PM |
HJR 40 |