Legislature(2013 - 2014)BARNES 124
02/08/2013 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB77 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 77 | TELECONFERENCED | |
HB 77-LAND DISPOSALS/EXCHANGES; WATER RIGHTS
1:04:18 PM
CO-CHAIR FEIGE announced that the only order of business is
HOUSE BILL NO. 77, "An Act relating to the Alaska Land Act,
including certain authorizations, contracts, leases, permits, or
other disposals of state land, resources, property, or
interests; relating to authorization for the use of state land
by general permit; relating to exchange of state land; relating
to procedures for certain administrative appeals and requests
for reconsideration to the commissioner of natural resources;
relating to the Alaska Water Use Act; and providing for an
effective date."
1:04:41 PM
The committee took a brief at-ease.
1:05:54 PM
CO-CHAIR FEIGE directed attention to the committee packet, which
includes responses from DNR regarding previous questions
pertaining to HB 77. In response to Co-Chair Saddler, Co-Chair
Feige pointed out that the committee packet does contain a list
of the various water reservations terminology and the
definitions for them. He then announced that the committee
would entertain amendments.
1:07:21 PM
REPRESENTATIVE HAWKER moved that the committee adopt Amendment
1, labeled 28-GH1524\A.1, Bullock, 1/31/13, which read:
Page 7, line 28:
Delete "The"
Insert "Unless the remainder of the purchase
price is paid in full at the time of the sale, the
[THE]"
Page 8, line 4:
Delete "contracts"
Insert "a contract that provides for installment
payments [CONTRACTS]"
Page 8, line 5:
Delete "for each sale"
Insert "[FOR EACH SALE]"
Page 8, line 7:
Delete "contracts"
Insert "a contract [CONTRACTS]"
REPRESENTATIVE TARR objected.
1:07:49 PM
REPRESENTATIVE HAWKER then moved an amendment to Amendment 1
such that on line 4 of Amendment 1 "the" would be changed to
"a".
REPRESENTATIVE SEATON inquired as to the effect of the amendment
to Amendment 1.
REPRESENTATIVE HAWKER related that the administration requested
the amendment to Amendment 1 in order that the full context of
the language would refer to the more neutral "a contract".
There being no objection, the amendment to Amendment 1 was
adopted.
1:09:35 PM
REPRESENTATIVE HAWKER, speaking to Amendment 1, as amended,
explained that the changes clarify in statute that the purchase
price at the time of sale may be paid in full without utilizing
an installment contract. Amendment 1, as amended, improves the
quality of statute by clarifying the intent of the statutes.
1:11:42 PM
CO-CHAIR SADDLER related his understanding that the changes
proposed to page 8, line 5, would have the net effect of
deleting the language "for each sale".
REPRESENTATIVE HAWKER agreed that the net effect is to delete
the language "for each sale". Therefore, the language would
read: "set out in contract the period for the payment of
installments". The "for each sale" is superfluous language that
would no longer apply to someone who pays cash up front. In
further response to Co-Chair Saddler, Representative Hawker
stated that the amendment is editing the legislation, which
itself edits statute.
1:14:04 PM
REPRESENTATIVE TARR removed her objection. There being no
further objections, Amendment 1, as amended, was adopted.
1:14:18 PM
REPRESENTATIVE TARR moved that the committee adopt Amendment 2,
labeled 28-GH1524\A.3, Bullock, 2/7/13, which read:
Page 21, lines 14 - 23:
Delete all material.
Renumber the following bill sections accordingly.
Page 22, lines 11 - 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 23, line 2:
Delete "Section 45"
Insert "Section 43"
Page 23, line 3:
Delete "sec. 47"
Insert "sec. 45"
REPRESENTATIVE HAWKER objected.
1:14:34 PM
REPRESENTATIVE TARR explained that Amendment 2 ensures that the
water rights granted before the water reservations have
precedence over those reservations. There is a conflict
regarding how the aforementioned will work, and thus Amendment 2
would allow individuals to apply for water reservations. If the
stream needs an amount of water, that [amount of water] would be
preserved, she further explained.
1:15:38 PM
The committee took a brief at-ease.
1:16:56 PM
CO-CHAIR FEIGE then inquired as to the administration's position
on Amendment 2.
1:17:04 PM
WYN MENEFEE, Chief of Operations, Division of Mining, Land and
Water (DMLW), Department of Natural Resources (DNR), responded
that the administration does not support the change embodied in
Amendment 2.
1:17:25 PM
REPRESENTATIVE TUCK inquired as to what would happen if that
section was deleted.
MR. MENEFEE related his understanding that the proposed change
in Amendment 2 would remove Section 40 in its entirety, which
removed "or a person" from the water reservations, and deletes
the transition language that was a result of having Section 40.
Amendment 2 would return to the original language in statute
such that "or a person" would be able to apply for a water
reservation. In further response to Representative Tuck, Mr.
Menefee clarified that without Section 40, existing law remains.
1:19:11 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 2.
A roll call vote was taken. Representatives Tuck and Tarr voted
in favor of the adoption of Amendment 2. Representatives
Hawker, Olson, Seaton, P. Wilson, Saddler, and Feige voted
against it. Therefore, Amendment 2 failed by a vote of 2-6.
1:20:12 PM
REPRESENTATIVE TARR moved that the committee adopt Amendment 3,
labeled 28-GH1524\A.4, Bullock, 2/7/13, which read:
Page 22, lines 13 - 14:
Delete "The Department of Natural Resources shall
return any applications and fees for applications"
Insert "Notwithstanding the amendment to
AS 46.15.145(a) by sec. 40 of this Act, an
application"
Page 22, line 15:
Delete "to persons"
Insert "by a person"
Page 22, lines 16 - 19:
Delete ". The commissioner of the Department of
Natural Resources may refer applications that are no
longer authorized to other state agencies for an
independent evaluation and consideration of submission
of a similar application to request a reservation to
that agency"
Insert "shall be considered and acted on by the
Department of Natural Resources under AS 46.15.145
until withdrawn by the applicant or a final
determination is made"
REPRESENTATIVE HAWKER objected.
1:20:20 PM
REPRESENTATIVE TARR explained that Amendment 3 would allow those
who have already applied for water reservations to be able to go
through the process and the department would be allowed to make
a decision. She noted that department documentation specifies
that there are 35 outstanding applications.
1:21:18 PM
MR. MENEFEE related that the administration is opposed to
Amendment 3.
REPRESENTATIVE SEATON informed the committee that he is opposing
Amendment 3 not because he opposes the idea but because there is
a better way in which to address it [via another amendment in
the committee packet].
1:22:07 PM
REPRESENTATIVE TUCK asked if the department is seeking a better
approach to this issue.
MR. MENEFEE answered that he believes there is another amendment
that would address this more effectively.
REPRESENTATIVE TUCK commented that he did not want to pull the
rug out from under those who have already started a fairly
expensive permitting process. Therefore, he wanted to ensure
that some grandfather rights are provided to those who have
moved through the process per existing statute. He announced
that he would support Amendment 3.
1:23:17 PM
REPRESENTATIVE TARR expressed hope that should no changes be
made to this, the department will do a good job in contacting
[those who have an outstanding application] as there are
nongovernmental organizations (NGO) as well as several tribal
entities who are the true Alaskans that have been here for
several thousand years. She then pointed out that the earliest
application was in 1992, and that there were also applications
from 1993 and 2000. The Eklutna Village, for example, has been
waiting a decade to hear about its application, which she
imagined would be frustrating enough not to mention if HB 77
passes and the application [is deemed invalid]. Although the
department has expressed concern to her regarding outside
organizations having influence over Alaska projects, she refuted
that in terms of tribal entities in the state.
CO-CHAIR SADDLER appreciated Representative Tarr's comments, but
took some umbrage with the term "true Alaskans" referring to
Alaska Natives because one of the beauties of Alaska and its
constitution is that "we are all true Alaskans."
1:24:45 PM
REPRESENTATIVE HAWKER maintained his objection.
1:24:52 PM
A roll call vote was taken. Representatives Tarr and Tuck voted
in favor of the adoption of Amendment 3. Representatives
Hawker, Olson, Seaton, P. Wilson, Saddler, and Feige voted
against it. Therefore, Amendment 3 failed by a vote of 2-6.
1:25:47 PM
REPRESENTATIVE TUCK moved that the committee adopt Amendment 4,
labeled 28-GH1524\A.2, Bullock, 2/7/13, which read:
Page 21, line 15:
Delete "or"
Page 21, line 16:
Delete "[OR A PERSON]"
Insert ", or a person"
Page 21, line 19:
Delete "or"
Insert ", [OR]"
Page 21, line 19, following "times,":
Insert "or indefinitely,"
Page 22, lines 11 - 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 23, line 2:
Delete "Section 45"
Insert "Section 44"
Page 23, line 3:
Delete "sec. 47"
Insert "sec. 46
REPRESENTATIVE HAWKER objected.
1:26:00 PM
REPRESENTATIVE TUCK said he was trying to grandfather those who
have already applied for permits.
1:26:51 PM
MR. MENEFEE related that the administration is opposed to
Amendment 4.
1:26:57 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 4.
1:27:10 PM
A roll call vote was taken. Representatives Tuck and Tarr voted
in favor of the adoption of Amendment 4. Representatives Olson,
Seaton, P. Wilson, Hawker, Saddler, and Feige voted against it.
Therefore, Amendment 4 failed by a vote of 2-6.
1:27:55 PM
REPRESENTATIVE TARR moved that the committee adopt Amendment 5,
labeled 28-GH1524\A.5, Bullock, 2/7/13, which read:
Page 6, line 24:
Delete "substantially and"
Page 9, line 31:
Delete "A substantially and"
Insert "An"
Page 11, line 5:
Delete "substantially and"
Page 11, line 25:
Delete "A substantially and"
Insert "An"
Page 18, line 6:
Delete ", or substantially and"
Insert "or is"
Page 18, line 15:
Delete "substantially and"
Page 19, line 3:
Delete "substantially and"
Page 19, line 5:
Delete "substantial and"
Page 19, line 7:
Delete "substantial and"
REPRESENTATIVE HAWKER objected to Amendment 5.
1:28:03 PM
REPRESENTATIVE TARR explained that she had difficulty finding
any definition of "substantially and adversely affected" in
statute. In reviewing court rules, the aforementioned standard
is applied in each individual case, but there is not a set
standard. Deleting "substantially" leaves "adversely affected"
as the standard, which she characterized as clearer in terms of
the outcome.
1:29:02 PM
REPRESENTATIVE SEATON noted that the forthcoming Amendment 9,
which he will offer, is exactly the same as Amendment 5. He
explained that the reason for either amendment is that it
provides clarity.
1:30:03 PM
MR. MENEFEE related that the administration is opposed to
Amendment 5.
1:30:08 PM
REPRESENTATIVE SEATON inquired as to how DNR would determine the
cut-off line of "substantially and adversely affected".
MR. MENEFEE answered that DNR would use standard definitions of
"substantial", which is defined in Merriam-Webster's New World
Dictionary as "of having substance, real, actual, true, not
imaginary, strong, solid". The Black's Law Dictionary defines
"substantial" as "of real worth and importance belonging to
substance, actually existing, real, not seeming or imaginary,
not elusive, solid, true, veritable". The department believes
that having the language in the legislation, helps to clarify
that when one applies for an appeal that the appealer states
that they are adversely affected and there is some backing to
the appeal because it is real, true, and supportable.
1:31:38 PM
REPRESENTATIVE SEATON surmised then that a fisherman, for
example, would not have to pass a threshold that 10 percent of
his/her catch is from a stream with a water reservation.
Rather, the fisherman would have to demonstrate from some sort
of reasonable standard that they are going to be affected.
MR. MENEFEE replied that Representative Seaton is correct in the
sense that it is a reasonable standard in that one can support
why he/she is adversely affected in a substantial manner. There
is no definition or level in statute that specifies a number of
reports. Mr. Menefee related that the department has to
evaluate [claims] based on the information provided for each
case.
1:33:06 PM
CO-CHAIR SADDLER stated his understanding that ["substantial"
refers] to whether [the claim] is substantive, real or not. He
then inquired as to the definition of "aggrieved" under which
the department is currently operating.
1:33:43 PM
ASHLEY BROWN, Assistant Attorney General, Oil, Gas & Mining
Section, Natural Resources Section, Department of Law (DOL),
explained that although "aggrieved" is also applied and defined
on a case-by-case basis, courts in Alaska have found it to mean
adversely affected.
1:34:08 PM
REPRESENTATIVE TARR inquired as to whether it would be helpful
to have "substantial" defined in statute.
MS. BROWN responded that "substantial" and "substantially" are
words of common use and there is a dictionary definition, and
therefore she is not sure it is necessary to define it further
in statute.
1:35:45 PM
The committee took a brief at-ease.
1:36:27 PM
REPRESENTATIVE SEATON said that since "substantial" is not a
particular level, but rather a demonstration of actual adverse
effect, he will not support Amendment 5. Having to show that
one is adversely affected in a nonspecific way, with some facts
and evidence, is a reasonable standard.
1:37:12 PM
REPRESENTATIVE TUCK inquired as to whether this would streamline
the process or would those who have been aggrieved be able to
bring back an appeal based on the definition of "substantially
and adversely affected."
MR. MENEFEE, regarding streamlining, opined that the changes
suggested in HB 77 would provide better substantiated appeals
that show a direct impact that it can address. However, if the
question is in regard to how Amendment 5 would streamline the
process, he said that it does not necessarily streamline [the
process].
1:38:07 PM
REPRESENTATIVE TUCK inquired as to why the change if modern day
language is merely being used to achieve the same purpose.
MR. MENEFEE explained that the regular connotation of the term
"aggrieved" is that one does not like something and does not
necessarily encourage the appellant to substantiate that charge
or specify a direct relationship of how he/she might be
affected. However, use of the language ["substantially and
adversely affected"] encourages the appellant to bring forth
information illustrating how they are affected. In further
response to Representative Tuck, Mr. Menefee clarified that the
language change is an attempt to communicate to the appellant
what the department wants in order to appropriately address the
appeal.
CO-CHAIR SADDLER surmised that the "substantially and adversely
affected" standard tries to avoid the situation in which the
only reason for the appeal is a "vague disquiet, disagreement."
Therefore, he announced that he would not support Amendment 5.
REPRESENTATIVE TARR remarked that "substantially and adversely
affected" could be applied as a fairly broad standard that would
remove access to much of the process.
1:41:26 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 5.
1:41:33 PM
A roll call vote was taken. Representative Tarr voted in favor
of the adoption of Amendment 5. Representatives Olson, Seaton,
P. Wilson, Hawker, Tuck, Saddler, and Feige voted against it.
Therefore, Amendment 5 failed by a vote of 1-7.
1:42:18 PM
REPRESENTATIVE TUCK moved that the committee adopt Amendment 6,
labeled 28-GH1524\A.6, Bullock, 2/7/13, which read:
Page 9, lines 7 - 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 22, line 16:
Delete "sec. 40"
Insert "sec. 39"
Page 23, line 2:
Delete "Section 45"
Insert "Section 44"
Page 23, line 3:
Delete "sec. 47"
Insert "sec. 46"
REPRESENTATIVE HAWKER objected.
1:42:31 PM
REPRESENTATIVE TUCK reminded the committee that the purpose of
HB 77 is to streamline the permitting process. He then pointed
out that the language on page 9, lines 7-19, grants a two-year
extension on an existing lease. Representative Tuck emphasized
the need for the leaseholder to be responsible for keeping track
of their lease deadlines. He opined that the two-year extension
would create more work rather than less work for the department.
1:44:05 PM
MR. MENEFEE related that the administration is opposed to
Amendment 6. In response to Co-Chair Feige, Mr. Menefee
explained that the lease extension is provided in cases in which
[the leaseholder] is applying for a preference right for a sale
or applying for a new lease, one that substantially changes the
purpose or operation of the existing lease, on the same
location. He then pointed out that AS 38.05.102 specifies that
at the termination of a lease, the leaseholder may apply for a
preference right to sell the land to them. Therefore, the two-
year period is necessary so that the buildings or other
improvements to the land can remain in a long-term lease type of
agreement, giving long-term site control during the two-year
period. This allows the continuation of the financing.
1:45:26 PM
REPRESENTATIVE HAWKER cautioned the committee to consider the
[proposals in the] context in the entire body of language.
While the legislation addresses allowing a one-time extension of
up to two years, the full context of the statute specifies "if
the director determines it to be in the best interest of the
state and the extension is necessary to prolong the lease while
the department considers ...". Representative Hawker opined
that the proposal in HB 77 creates an administrative efficiency
that protects the interest of the lessee and lessors.
Therefore, he expressed strong opposition to Amendment 6 that
would compromise the rights and privileges of either party.
1:46:48 PM
REPRESENTATIVE TUCK surmised then that at the termination of the
lease, the lessee can file for an extension of the lease.
MR. MENEFEE read AS 38.05.102, which states:
Sec. 38.05.102. Lessee preference. If land within a
leasehold created under AS 38.05.070 - 38.05.105 is
offered for sale or long-term lease at the termination
of the existing leasehold, the director may, upon a
finding that it is in the best interest of the state,
allow the holder in good standing of that leasehold to
purchase or lease the land for its appraised fair
market value at the time of the sale or long-term
lease.
The implication is that one must wait for the termination and it
cannot be done in advance. Furthermore, it takes up to two
years to go through another formal best interest decision to
ensure whether to allow or disallow the preference right.
1:48:11 PM
REPRESENTATIVE TUCK inquired as to why the department did not
allow the leaseholder to file two years earlier.
MR. MENEFEE said that the leaseholder could be allowed to apply
earlier, but pointed out that Section 10(f)(3) deals with
substantially changing the lease. Sometimes it takes the full
lease period for the leaseholder to maximize and refine the
operation. He opined that [the language in Section 10] provides
DNR the liberty to address the request when it comes in. In
response to Representative Tuck, Mr. Menefee confirmed that the
consideration process could start prior to the termination of
the lease, but [an extension] could not be granted until its
termination. However, from his experience, he related that
there are enough instances in which there is a situation that
causes it to be dealt with at the end of the lease.
1:49:43 PM
REPRESENTATIVE TUCK asked whether the one-time renewal for up to
two years can only happen once for a particular lease. He then
asked whether a renewal of a lease would be allowed for another
two-year one-time extension.
MR. MENEFEE clarified that a renewal is not the same as a re-
issue. The lease statute specifies that a renewal is one-time
renewal that allows renewal for a period not to exceed the same
period of the original lease term. A re-issue is a new decision
on the lease and is a new lease; it does not renew or continue
the old lease. Therefore, he interpreted Section 10 to mean
that the extension could be used at the end of a first lease or
a re-issued lease.
1:51:30 PM
REPRESENTATIVE TARR recalled Mr. Menefee's testimony regarding a
scenario in which there are substantial changes at the end of a
lease, which seems to contradict extending the lease. A lease
with substantial changes at the end of it should be reviewed
prior to applying a two-year extension to it.
MR. MENEFEE offered the following hypothetical example in which
there is a lease for commercial recreation mining, but it is
actually changed to a golf course and other aspects not included
in the original application. He noted that the department
receives a development plan specifying what the applicant
intends to do and they are approved per their development plan
and whatever the department modifies on it. Although it would
be conceivable to say that the leaseholder should not do
substantial changes, but the leaseholder may be in the process
of relating that the business plan has changed. In such a
situation, the public has to be informed how the land will now
be used and a re-issue occurs.
1:53:47 PM
REPRESENTATIVE TARR asked whether Mr. Menefee had an example of
a smaller mining operation that became quite large under the
previous terms of the lease and the lease was extended for two
years.
MR. MENEFEE said he was not sure exactly what Representative
Tarr was saying. He clarified that his prior example was one in
which a leaseholder could change their operation and the
department would have to extend in order to go through the
process of deciding whether that was appropriate.
1:54:17 PM
REPRESENTATIVE TARR pointed out that example was one in which
the change was to a totally different business plan. She
clarified that she is referring to an example in which the
leaseholder did not have the funding originally necessary, but
has since brought in investors and can develop a broader
project.
MR. MENEFEE replied it is conceivable that there is a lease for
which the plan was to develop four structures for lodging on the
property and then [upon termination of the lease] the
leaseholder wants to build a lodge that has other amenities
beyond what was originally presented to the public. In such a
situation, there would be a re-issue process.
1:55:31 PM
REPRESENTATIVE TUCK opined that in situations in which at the
end of a contract there are substantial changes, those need to
be brought to the public. He further opined that he would
rather the legislation be written such that the applicant
provide his/her application two years earlier.
1:56:27 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 6.
1:56:33 PM
A roll call vote was taken. Representatives Tarr and Tuck voted
in favor of the adoption of Amendment 6. Representatives
Seaton, P. Wilson, Hawker, Olson, Saddler, and Feige voted
against it. Therefore, Amendment 6 failed by a vote of 2-6.
1:57:19 PM
REPRESENTATIVE TARR moved that the committee adopt Amendment 7,
labeled 28-GH1524\A.7, Bullock, 2/7/13, which read:
Page 11, lines 9 - 11:
Delete "[THE DECISION OF THE COMMISSIONER UNDER
THIS SUBSECTION MAY BE APPEALED TO THE SUPERIOR
COURT.]"
Insert "The decision of the commissioner under
this subsection may be appealed to the superior
court."
REPRESENTATIVE HAWKER objected.
1:57:27 PM
REPRESENTATIVE TARR explained that Amendment 7 ensures that
there would be access to appeal to the Superior Court as there
was some confusion with Legislative Legal Services regarding
whether that right is maintained in the existing legislation.
1:58:07 PM
MR. MENEFEE related that the administration is opposed to
Amendment 7. Upon consultation with the Department of Law, the
department was informed that Amendment 7 would insert redundant
language because AS 44.37.011 provides the capability to go to
court. There is the right to go to court, but it is not
necessary to state it in this provision.
1:58:45 PM
REPRESENTATIVE SEATON said he is very supportive of ensuring
there is an appeal process. If the aforementioned is already
provided in statute, then he finds the legislation appropriate
as it is laid out for this matter. Representative Seaton
clarified that his vote against Amendment 7 is not a vote
against having the commissioner's decisions appealed because he
believes that to be crucial.
1:59:43 PM
REPRESENTATIVE TARR emphasized that in her discussions with
Legislative Legal Services, it was not interpreted the same way
and the suggestion was to put forth this amendment.
2:00:31 PM
MS. BROWN agreed with Mr. Menefee. She then directed attention
to Section 31, which amends AS 44.37.011. She directed further
attention to page 18, lines 19-22, which is language from
existing statute that read: "The commissioner's decision made
upon reconsideration or the commissioner's failure to act on the
request [PETITION] for reconsideration is a final administrative
order for purposes of filing an appeal of the administrative
decision to the court."
2:01:18 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 7.
2:01:25 PM
A roll call vote was taken. Representatives Tarr and Tuck voted
in favor of the adoption of Amendment 7. Representatives Olson,
Hawker, P. Wilson, Seaton, Saddler, and Feige voted against it.
Therefore, Amendment 7 failed by a vote of 2-6.
2:02:12 PM
REPRESENTATIVE SEATON moved that the committee adopt Amendment
8, labeled 28-GH1524\A.8, Bullock, 2/7/13, which read:
Page 1, line 11:
Delete "and irreparable"
REPRESENTATIVE HAWKER objected.
2:02:21 PM
REPRESENTATIVE SEATON opined that there needs to be a balancing
act and the commissioner's decision should be made based on harm
that would occur to state land or resources. However, the
qualifier of "irreparable" goes far beyond what should be in
statute because having the standard of "significant and
irreparable harm" would allow [general permits] to be issued
more easily.
2:03:50 PM
CO-CHAIR FEIGE inquired as to how Amendment 8 would work in a
situation in which a tree is cut. Such a situation could be
characterized as "significant harm," although since the tree can
grow back it is not necessarily "irreparable harm."
REPRESENTATIVE SEATON related his belief that the harvest for
renewable resources would not be considered "significant harm."
He clarified that what he is addressing is a situation in which
the side consequences can be very significant and damage other
resources of the state.
2:05:27 PM
REPRESENTATIVE P. WILSON pointed out that mining [leases]
specify that at the end [of the lease] there is a reclamation
process in which everything is returned to how it was initially.
Without the ["irreparable harm"] language, [the leaseholders
would not be able to do reclamation].
2:06:19 PM
MR. MENEFEE related that the administration is opposed to
Amendment 8. He highlighted the need to remember that a general
permit is not the end all. A general permit is issued when
there is a certain activity that can fit a certain parameter and
if the activity fits, then a general permit is issued. However,
if something does not fit under a general permit, it does not
prohibit the department from authorizing it. He clarified that
using the "irreparable harm" standard does not mean that the
commissioner cannot still make a decision through delegated
authority to authorize the action. Mr. Menefee reminded the
committee that there is a public process through which the
public is informed of the type of activity that is authorized by
the general public. Furthermore, the public has an opportunity
to appeal the department's decision, if it so chooses.
Therefore, Mr. Menefee opined that [the proposed statute]
provides the appropriate balance.
2:07:51 PM
REPRESENTATIVE SEATON pointed out the distinction between a
general permit, which could be statewide, and a specific-
permitted project. A specific-permitted project will have
hearings, public notice on that particular activity whereas a
general permit will allow operations to be conducted anywhere
the general permit covers. Therefore, he opined that the
standards for a general permit should be much more closely
aligned with preserving not having significant harm to state
land and resources. Any time those activities [of a general
permit] that would be of significant harm want to go forward in
a specific area, the activity should have a specific permit
because it will be very concentrated.
2:09:39 PM
CO-CHAIR FEIGE requested that Mr. Menefee elaborate on the
definition of a general permit as he has a different
interpretation of what a general permit covers and is issued.
MR. MENEFEE, referring to land use permits, clarified that
hearings are not held for those and, in fact, it is not required
to be noticed to the public, although the department does
provide notice. In terms of Representative Seaton's comments,
Mr. Menefee specified that when making a decision on a general
permit, it is a decision saying that in the future a certain use
will be allowed so long as it follows the prescribed
stipulations and such. Each subsequent use of that general
permit will not be noticed unless it has lasted 10 years. The
original notice is still good for those permits continuing on
under a general permit, whereas the notice for a land use permit
would occur at the time of the application. In further response
to Co-Chair Feige, he said that when general permits are
created, the public is informed as to how it will be authorized
and the general permit is authorized to an individual. There
could be general permits without notification, such as the
generally allowed uses in regulation for which individuals are
allowed to perform different things on state land without
notifying the department. Therefore, there are different levels
of general permits. He then informed the committee that a
general permit can be prescribed to a very specific location.
For example, there could be a general permit for a stream
crossing that is allowed at a specific area because there are no
bedding areas for salmon. On the other hand, the area [of a
general permit] may specify a broader area, such as Southcentral
Alaska, because it typically has the same ecosystem.
Furthermore, there could be a statewide general permit, such as
for the non-timber forest products for which there is enough
guidance that it does not matter the location in the state. Mr.
Menefee stated that there are varying geographic references in a
general permit based on how specific the department can get with
regard to what is being allowed.
2:13:27 PM
CO-CHAIR SADDLER inquired as to how the commissioner would apply
the "irreparable harm" standard and the timeline of it.
MR. MENEFEE replied that there are variable levels of
application. The definition of "irreparable" for Merriam-
Webster's Dictionary says "not reparable, irremediable," which
means that if what is being damaged/destroyed cannot be fixed,
but he noted that there is a "reasonableness" that has to be
applied.
CO-CHAIR SADDLER remarked that he had some concerns with this
[language], but now has some comfort with the definition of
"irremediable."
2:14:54 PM
REPRESENTATIVE SEATON opined that what is being discussed is
"significant" harm. He said he did not believe that having a
timber sale is significant harm to state resources. Although
there has been discussion of a reasonableness standard, he
reminded the committee that these are statutes that will apply
to the current and future commissioners. He reiterated that an
"irreparable harm" standard should not be placed in statute and
have that type of authority for a general permit. From his
understanding, general permits are issued when one does not want
to go through all the permitting on each activity but rather the
general permit speaks to generally allowing an activity when
there is not significant harm. In conclusion, Representative
Seaton opined that the standard of significant harm is
appropriate for general permits.
2:16:43 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 8.
2:16:48 PM
A roll call vote was taken. Representatives Tarr, Seaton, and
Tuck voted in favor of the adoption of Amendment 8.
Representatives Hawker, Olson, P. Wilson, Saddler, and Feige
voted against it. Therefore, Amendment 8 failed by a vote of 3-
5.
2:17:37 PM
REPRESENTATIVE SEATON said he would not offer Amendment 9,
labeled 28-GH1524\A.9, Bullock, 2/7/13, included in committee
members' packets.
2:17:50 PM
The committee took an at-ease from 2:17 p.m. to 2:19 p.m.
2:19:33 PM
REPRESENTATIVE SEATON moved that the committee adopt Amendment
10, labeled 28-GH1524\A.16, Bullock, 2/7/13, which read:
Page 22, lines 13 - 19:
Delete all material and insert:
"TRANSITION: TRANSFER OF CERTAIN PENDING
APPLICATIONS FOR RESERVED WATER. At the request of an
applicant whose application is pending on the
effective date of this Act and who is no longer
authorized to reserve water under AS 46.15.145(a), as
amended by sec. 40 of this Act, the Department of
Natural Resources shall transfer the pending
application to an entity identified by the applicant
that is authorized to reserve water under
AS 46.15.145(a), as amended by sec. 40 of this Act.
The entity receiving the application shall notify the
Department of Natural Resources within two years after
receiving the application as to whether the entity
intends to pursue the reservation of water as
requested in the application. If, within two years,
the Department of Natural Resources does not receive
notice that the entity intends to pursue the same or a
smaller reservation or if the entity notifies the
Department of Natural Resources that the entity will
not pursue the reservation in the application, the
Department of Natural Resources shall consider the
application void and refund the application fee to the
original applicant. If the entity receiving the
application continues to pursue the reservation of
water as requested in the application, the Department
of Natural Resources shall consider the application,
and, if a certificate of reservation is issued, the
certificate will carry the priority date of the
original application. The Department of Natural
Resources may not bar an entity to which the
department transfers an application under this section
from pursuing the reservation of water that is
described in the application."
REPRESENTATIVE HAWKER objected.
2:19:46 PM
REPRESENTATIVE SEATON moved that the committee adopt Conceptual
Amendment 1 to Amendment 10, which would insert on line 4 of
Amendment 10, following "WATER." the language "Within one year,"
and would on lines 19-21 of Amendment 10 delete the language
"The Department of Natural Resources may not bar an entity to
which the department transfers an application under this section
from pursuing the reservation of water that is described in the
application." There being no objection, Conceptual Amendment 1
to Amendment 10 was adopted.
2:21:25 PM
REPRESENTATIVE SEATON explained that Amendment 10 allows the
transfer of a permit within the general parameters of that
permit to a qualified agency that is established in HB 77. This
is meant to preserve rights and avoid harming people already in
the [application process].
2:22:49 PM
REPRESENTATIVE HAWKER pointed out that the language in the
amendment refers to an eligible entity versus agency.
2:23:26 PM
MR. MENEFEE related the administration's support for Amendment
10 as amended.
2:23:52 PM
REPRESENTATIVE HAWKER withdrew his objection. There being no
further objection, Conceptual Amendment 10, as amended, was
adopted.
2:24:20 PM
REPRESENTATIVE TUCK moved that the committee adopt Amendment 11,
labeled 28-GH1524\A.11, Bullock, 2/7/13, which read:
Page 1, line 8:
Delete "a new subsection"
Insert "new subsections"
Page 1, following line 13:
Insert a new subsection to read:
"(d) The commissioner may reject an application
for a permit for a project the commissioner determines
is not technically feasible, or is not economically
feasible."
REPRESENTATIVE HAWKER objected.
2:24:36 PM
REPRESENTATIVE TUCK explained that Amendment 11 intends to
prevent any backlogging of speculative permitting. Prior
testimony has related that part of the backlog can be attributed
to those who seek permits for speculative projects that are not
viable. Amendment 11 attempts to provide the department with
the ability to filter those out and address viable projects that
are technically and economically feasible.
2:25:36 PM
CO-CHAIR FEIGE inquired as to the specific types of permits
Amendment 11 targets because one seeking potential mineral
development first needs to determine whether there is a mineral
resource of sufficient size to economically justify a mine and
seek investors. Secondly, exploration has to occur for which
certain permits have to be obtained. He asked if Representative
Tuck is saying that exploration permits should not be allowed
because a mine is not on the horizon.
REPRESENTATIVE TUCK related his understanding that there are
different levels of exploration. He recalled testimony that an
Oklahoma firm applied for and obtained permits, which increased
the value of its stock, all the while there was no intention of
moving forward and the company left the state with the mess.
Amendment 11 is meant to prevent the aforementioned that
procedurally bogs the [division] down for the purposes of
speculation.
CO-CHAIR FEIGE inquired as to how the company left a mess if it
did not do anything.
REPRESENTATIVE TUCK clarified that he was not the one that
testified about this case.
2:27:50 PM
MR. MENEFEE informed the committee that the administration does
not support Amendment 11.
2:27:59 PM
REPRESENTATIVE SEATON remarked he is unsure how the department
would have the ability to determine whether [a project] is
economically feasible when one applies for a permit, although he
agrees that there are some permits the department could
determine are not technically feasible. Since the standard is
not appropriate for the department to make that determination,
he expressed reluctance with [Amendment 11].
2:28:59 PM
CO-CHAIR FEIGE related his understanding that the department
permits activities and establishes specific conditions for those
activities, which he characterized as the nature of the
permitting system.
MR. MENEFEE responded that is correct, recalling that only for a
common carrier pipeline does the department have to determine
the fit, willing, and able ability. For just about everything
else, the department does not perform an economic feasibility
study to ensure the company is sound enough to carry out what it
says it will do. The restrictions are on what they have to do
and the conditions of the land once the project has concluded.
If the company does not succeed, it is obligated to take it out,
which is why there is bonding.
2:30:01 PM
CO-CHAIR FEIGE surmised then that the bonding requirements
provide a level of insurance to the state's interest, if the
permittee does not follow the conditions of the permit, besides
the penalties of law. The bonding requirements would provide a
monetary avenue to recover or finance any remediation.
MR. MENEFEE noted his agreement.
2:30:30 PM
REPRESENTATIVE TUCK recalled prior testimony that the
remediation did extend past the bond of the particular project.
He noted that he left it to the department to determine what is
technically and economically feasible as such definitions are in
statute elsewhere. He mentioned a possible [determination to
be] the certification of an ore body, which also provides
investors some level of confidence with regard to moving
forward. He then offered that [the feasibility of a project]
could be determined by whether there is financial backing, such
as investors that have certified [the project] through their
process. Again, he reiterated his desire to leave it to the
department to determine that and provide the ability for the
department to reject frivolous permits. He then asked whether
Amendment 11 provides something the department would use and
would view as helping its procedures.
MR. MENEFEE characterized [the proposal in Amendment 11] as an
encumbrance because a determination as to whether an ore body is
good enough takes exploration and sometimes extensive
exploration. Mr. Menefee emphasized that the department
authorizes more than just mining activities. Therefore, if
Amendment 11 became part of statute, the department would have
to determine, for example, if a proposed lodge is economically
feasible that it will succeed. He said that AS 38.05.020
governs practically everything the department does, and thus
would increase the department's workload, require advanced
expertise, and it may not be possible if some people were not
able to go out and do some things under authorization to
determine whether they can succeed or not.
2:32:35 PM
CO-CHAIR FEIGE commented that the act of obtaining permits does
require investment on the part of the applicant and has value.
The fact that the stock price increases as a reflection of the
value is not necessarily the committee's concern. As Mr.
Menefee stated, it seems impossible to determine whether [a
project] would payout or not.
2:33:30 PM
REPRESENTATIVE TUCK restated that the intent of Amendment 11 is
to streamline the system and avoid cheating the system. The
hope was to free resources in order to help those projects that
really are viable. Therefore, based on the department's
comments, Representative Tuck withdrew Amendment 11.
2:34:10 PM
REPRESENTATIVE TUCK moved that the committee adopt Amendment 12,
labeled 28-GH1524\A.12, Bullock, 2/7/13, which read:
Page 1, line 11:
Delete "and"
Insert "or"
REPRESENTATIVE HAWKER objected.
2:34:24 PM
REPRESENTATIVE TUCK explained that Amendment 12 attempts to
ensure that under general permitting, the department continues
to consider significant harm and is allowed to keep the
irreparable harm [requirement] as well.
2:35:05 PM
MR. MENEFEE stated that the administration is opposed Amendment
12. The existing language of HB 77 specifies that a general
permit would not be issued for an activity that resulted in both
"significant and irreparable harm." Changing the language to
"significant or irreparable harm" would mean that [a general
permit could not be issued] for an activity if either
significant harm or irreparable harm. The department believes
the proposed threshold in HB 77 is appropriate.
2:35:51 PM
REPRESENTATIVE TUCK expressed the need to ensure that there is
concern about significant harm as well as irreparable harm. He
further expressed the need to provide protection at the lowest
common denominator.
2:36:16 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 12.
2:36:22 PM
A roll call vote was taken. Representatives Seaton, Tarr, and
Tuck voted in favor of the adoption of Amendment 12.
Representatives Olson, P. Wilson, Hawker, Saddler, and Feige
voted against it. Therefore, Amendment 12 failed by a vote of
3-5.
2:37:07 PM
REPRESENTATIVE TUCK moved that the committee adopt Amendment 13,
labeled 28-GH1524\A.13, Bullock, 2/7/13, which read:
Page 1, line 6, following "Act;":
Insert "requiring the commissioner of fish and
game to apply for the reservation of sufficient water
to maintain a specified instream flow or level of
water in certain rivers, lakes, and streams;"
Page 1, following line 7:
Insert a new bill section to read:
"* Section 1. AS 16.05.871 is amended by adding a
new subsection to read:
(e) The commissioner shall apply for the
reservation of sufficient water under AS 46.15.145 to
maintain a specified instream flow or level of water
in the rivers, lakes, and streams that are specified
by the commissioner under (a) of this section."
Page 1, line 8:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 22, line 16:
Delete "sec. 40"
Insert "sec. 41"
Page 23, line 2:
Delete "Section 45"
Insert "Section 46"
Page 23, line 3:
Delete "sec. 47"
Insert "sec. 48"
REPRESENTATIVE HAWKER objected.
2:37:30 PM
REPRESENTATIVE TUCK explained that Amendment 13 is an attempt to
protect the state's anadromous fish regardless of whether anyone
applies to do so per Section 40. He related his understanding
that the Alaska Department of Fish & Game publishes a book that
lists the streams in Alaska. Amendment 13 would have the
department request water reservations for those fish that may be
impacted on those streams.
2:39:46 PM
CHARLES SWANTON, Director, Division of Sport Fish, Alaska
Department of Fish & Game (ADF&G), said the administration
opposes Amendment 13. "The Anadromous Waters Catalog" currently
holds 17,897 individual records of anadromous waters in the
state, including 16,200-plus rivers, 1,500 lakes, and 69 smaller
water bodies. The aforementioned represent over 75,000 million
miles of stream reaches. Each year about 322 new listings are
added to the catalog. Mr. Swanton stated that this particular
request would represent about 16,000-82,000 water reservations.
2:40:50 PM
REPRESENTATIVE SEATON posed a scenario in which someone applies
for temporary water use or water extraction at a level that
would be detrimental to the fish in the stream, and asked
whether ADF&G would receive notice of that. Furthermore, would
ADF&G apply for a water reservation on that particular project,
he asked. He then requested that the DMLW review the priorities
for water reservations and rights.
MR. SWANTON said that the question would better be answered by
the Division of Habitat. However, he offered, "In essence, when
those sorts of activities are taking place with regards to water
a permit water extraction of those sorts of things are issued
taking into consideration, are those water needs of the fish
that are in that particular water body. So that's how it's
handled on a more short-term basis." The water reservation
aspect is a longer process that involves about three years of
data collection.
2:43:24 PM
REPRESENTATIVE SEATON restated his question regarding whether
there is a priority time that a water withdrawal would supersede
the necessity for a water reservation for fish.
MR. MENEFEE clarified that for a temporary water use
authorization or temporary water right, the department has to
obtain comments from the Department of Environmental
Conservation (DEC) and ADF&G as well as other governing agencies
in order to understand the impact of the temporary water use
withdrawal on fish habitat. Basically, the temporary water use
authorizations would be issued with restrictions in order to
protect that. Therefore, if the fish need a certain amount of
water, there would be restrictions to ensure that no more than
that amount of water necessary for the fish is taken. Likewise,
when granting a water right, statute requires the department to
consider the effect on fish and game resources and public
recreational opportunities. Mr. Menefee confirmed that a water
reservation is a tool to ensure that there is a sufficient
quantity of water, but individually under the water rights and
the temporary water use authorizations the same thing can be
addressed individually as water is taken from the source.
2:45:26 PM
REPRESENTATIVE TARR, referring to page 2, Scenario 2, of Mr.
Menefee's letter to the committee dated February 7, 2013, opined
that the response seems to contradict his testimony that water
rights have to determine the effect with ADF&G and other public
uses.
MR. MENEFEE specified that a water reservation is a form of a
water right, and therefore both go under the doctrine of prior
appropriation. The doctrine of prior appropriation means that
the first thing appropriated has the greater right, and thus the
first in line has the better right. If a water right in a water
body is authorized and later someone comes forth with a water
right application, the division could only issue the water
reservation up to the remainder of the water that exists after
the water right is fulfilled. Although the division does not
issue by percentages, he offered that if 100 percent of the
water body is flowing water and then an initial water right
comes in for 30 percent of that water, a request for an 80
percent water reservation could not be issued; however, a water
reservation of only 70 percent could be issued because that is
all that is remaining in that water body. Per statute, the
prior existing rights have to be addressed and a water
reservation cannot obviate those prior rights.
2:47:43 PM
REPRESENTATIVE TARR then inquired as to how the department would
address a scenario in which a previously existing water right
would not afford the issuance of a water reservation in the
amount necessary to preserve the needed instream flow for a
healthy salmon run.
MR. MENEFEE answered that DMLW would seek to issue a water
reservation in the greatest amount possible of the appropriable
water left. Still, a prior existing right cannot be violated.
He added that his staff was hard pressed to recall even one
instance in which DMLW has had to reduce the amount of a water
reservation or a temporary water use authorization by another
right. Typically, with Alaska waters, both a water reservation
and a water right and a temporary water use authorization can be
fulfilled.
2:49:34 PM
REPRESENTATIVE TARR asked whether any of the pending unprocessed
water reservations would fall into the category of having
existing rights that are in conflict with the reservation
applications.
MR. MENEFEE replied that he did not know, but said DMLW could
research that. Such information would require reviewing every
application in terms of how much was requested and determine if
there was another water right. He then posed a scenario in
which a water reservation application has not been certificated.
If there was an application for a water right in that same water
body, DMLW would have to evaluate whether [the pending water
reservation application] would be in conflict with a later
application for a water right.
2:51:04 PM
REPRESENTATIVE TUCK surmised that under the existing process
anyone can file a water right or a water reservation for any
stream. If someone files for a water right, a water reservation
of any sort is not activated unless a government entity or
division or a person applies for that water reservation. Once
the water reservation is set, it holds a right that the person
is not using him/herself but rather is there for the four
specified purposes [in AS 46.15.145(a)(1)-(4)]. He then
surmised that a water reservation would not preempt an existing
water right, and asked if that is correct.
MR. MENEFEE replied yes.
2:52:11 PM
REPRESENTATIVE TUCK then explained that Amendment 13 attempts to
have a method to consider how much water should be present for
fish. He clarified that he did not mean for [the passage of
Amendment 13] to result in ADF&G having to apply for a water
reservation for every stream in the state. He expressed the
need to have a mechanism by which ADF&G can file for a water
reservation when a water right is filed for those streams in the
catalog. He acknowledged that Amendment 13 does not accomplish
all that, but he expressed interest in finding a solution.
2:54:22 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 13.
2:54:29 PM
A roll call vote was taken. Representatives Tarr and Tuck voted
in favor of the adoption of Amendment 13. Representatives
Seaton, P. Wilson, Hawker, Olson, Saddler, and Feige voted
against it. Therefore, Amendment 13 failed by a vote of 2-6.
2:55:07 PM
REPRESENTATIVE TUCK moved that the committee adopt Amendment 14,
labeled 28-GH1524\A.14, Bullock, 2/7/13, which read:
Page 21, line 15:
Delete "or"
Page 21, line 16, following "States":
Insert ", or a Native entity in the state that is
on the list of Indian entities that are recognized and
eligible to receive services from the United States
Bureau of Indian Affairs, Department of the Interior,
published in 67 Federal Register 46328-01 on July 12,
2002"
REPRESENTATIVE HAWKER objected.
2:55:30 PM
REPRESENTATIVE TUCK explained that Amendment 14 would insert
language allowing a Native entity to file for a water
reservation.
2:56:11 PM
MR. MENEFEE related the administration's opposition to Amendment
14. He informed the committee that there is a general policy in
terms of how tribal entities and federally recognized tribes are
treated throughout statute; treating those groups inconsistently
in statute would create a challenge. Should such a change be
deemed necessary, it should be a general across-the-board
change. Furthermore, because of the sovereign status of
federally recognized tribes, sovereign immunity and other issues
that are quite complex have to be addressed when dealing with
authorizations. Therefore, the administration does not believe
the change embodied in Amendment 14 is appropriate.
2:58:11 PM
REPRESENTATIVE SEATON asked whether the department considers a
tribe "a person."
MR. MENEFEE answered that would be the definition because
anything that is not a federal agency, a state agency, or
political subdivision of the state would fall under "a person."
Therefore, "a person" would include Native corporations and
federally recognized tribes.
2:59:01 PM
REPRESENTATIVE TUCK stated that currently, Native entities can
file. Of the list of 35 [applicants] that have not had their
permits passed, some are from Native entities. He asked if the
reason some of these permits are not passed is because there are
other locations [in statute] where the Native entities cannot do
it.
MR. MENEFEE replied, "No, that is not the reason." There are
438 water reservation applications and the division has had
challenges with staffing to address those. Currently, DMLW is
in the process of ramping up the processing of water
reservations because it is part of the backlog. In the last two
years, 32 of the 62 existing water reservations in the state
were authorized.
3:00:26 PM
REPRESENTATIVE TUCK said Amendment 14 would basically allow
[DMLW] to do what it is already doing and he would like to
provide Native Alaskans the opportunity to preserve their areas
and be able to have the opportunity to file for a water
reservation.
3:01:00 PM
REPRESENTATIVE TARR pointed out that eliminating 35 of the 438
water reservation applicants amounts to less than 10 percent of
the total. She then questioned whether it would be more
effective to review the 90 percent of outstanding applications
if part of the issue is efficiency of the process.
MR. MENEFEE clarified that the other [403] applications for
water reservations are from agencies, which typically come from
the Bureau of Land Management (BLM), the U.S. Fish & Wildlife
Service, and [the Alaska Department of Fish & Game]. These are
applications that do not fall under the "person" category.
3:01:51 PM
REPRESENTATIVE TARR questioned then why something is not being
done to make it more efficient with those applications.
Specifically, she inquired as to whether there are opportunities
that could make it a more efficient process.
MR. MENEFEE related his belief that if there is supportable,
sound information from which the division can make the decision,
the division can go through a water reservation decision just as
it is explained in statute. The division has not been able to
"shave off" the procedure [specified in statute] because they
are good considerations for a water reservation. What is laid
out in statute requires a lot of data gathering, which is
occurring and as time passes more of those [water reservation
applications] will be processed.
3:02:59 PM
REPRESENTATIVE SEATON expressed concern with the absence of [a
reference to a "Native entity"]. He reminded the committee that
under federal law there are subsistence rights for fish and game
and there is nothing more critical to fishing activities than
having adequate water preserved for that. He expressed further
concern that this is almost requiring federal overreach to take
over water reservations in streams because Native tribes are not
being allowed to have the basis of that subsistence right to
preserve or even apply for water reservations. Representative
Seaton informed the committee that he would be supporting
Amendment 14, although not particularly for its exact language.
3:05:14 PM
REPRESENTATIVE OLSON asked whether the committee has been
contacted regarding Amendment 14.
CO-CHAIR FEIGE responded that he did not believe so.
REPRESENTATIVE OLSON said he has not been contacted about
Amendment 14.
CO-CHAIR FEIGE said he has not either, and then inquired as to
whether other members have been contacted about Amendment 14.
REPRESENTATIVE HAWKER said he has not either.
REPRESENTATIVE TARR interjected that she has been contacted
about Amendment 14.
3:05:45 PM
REPRESENTATIVE HAWKER reminded the committee that the underlying
proposal of HB 77 proposes to limit the applications for these
reservations to political subdivisions of the state or the
United States. He expressed concern that Amendment 14 creates
preferential rights amongst Alaskan citizens as individuals,
which is territory that should not be entered into lightly.
There has been a long-term debate in Alaska regarding granting
statutorily preferential rights amongst individual Alaskans. He
said he is not willing to go into this matter with an amendment
to a larger piece of legislation, as the matter merits
consideration on its own.
3:06:59 PM
CO-CHAIR FEIGE presumed that tribal entities that exist within
the state still have the ability to request through DNR that
governmental divisions request the reservations.
MR. MENEFEE noted his agreement.
3:07:30 PM
REPRESENTATIVE SEATON agreed, but stressed that the tribal
entities will not request [a water reservation] from a state
agency but rather a federal agency, which is permitted in HB 77.
There are federal guarantees of subsistence rights, he noted.
This legislation removes tribal entities from being able to
apply for water reservations and Amendment 14 does not add them
in but rather ensures they are not removed.
3:08:50 PM
REPRESENTATIVE TUCK reiterated that Amendment 14 attempts to
allow Native entities to continue to apply for water
reservations.
3:09:04 PM
REPRESENTATIVE HAWKER maintained his objection to Amendment 14.
3:09:11 PM
A roll call vote was taken. Representatives Tarr, Tuck, and
Seaton voted in favor of the adoption of Amendment 14.
Representatives Hawker, Olson, Saddler, and Feige voted against
it. Therefore, Amendment 14 failed by a vote of 3-4.
3:10:06 PM
CO-CHAIR FEIGE, upon determining no one wished to testify,
closed public testimony.
3:10:37 PM
CO-CHAIR SADDLER moved to report HB 77, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSHB 77(RES) was
reported from the House Resources Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 77 Non-Governmental water reservation applications.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |
| HB 77 Water Authorization Process.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |
| HB77 DNR Responses 2.7.13.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |
| HB 77 Amendment Packet 2.8.13.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |
| HB 77 Amend - Seaton A.16.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |
| HB 77 SEACC Fraser Inst. Summary 2.7.13.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |
| HB77 & SB26 KBCS Comments.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 SB 26 |
| HB 77 Weissler 2.7.13.pdf |
HRES 2/8/2013 1:00:00 PM |
HB 77 |