Legislature(2019 - 2020)BARNES 124

05/03/2019 01:00 PM House RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 1:15 pm --
+= SB 43 EXTEND BIG GAME BOARD; OUTFITTER LICENSE TELECONFERENCED
Moved CSSB 43(FIN) Out of Committee
-- Testimony <Invitation Only> --
+= HB 138 NATIONAL RESOURCE WATER DESIGNATION TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
+ HB 116 AQUATIC FARM/HATCHERY SITE LEASES TELECONFERENCED
Heard & Held
-- Public Testimony <Time Limit May Be Set> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
           HB 138-NATIONAL RESOURCE WATER DESIGNATION                                                                       
                                                                                                                                
1:26:47 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN announced that the  next order of business would                                                               
be  HOUSE BILL  NO. 138,  "An  Act requiring  the designation  of                                                               
state water  as outstanding national  resource water to  occur in                                                               
statute; relating to management  of outstanding national resource                                                               
water  by  the  Department  of  Environmental  Conservation;  and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
CO-CHAIR LINCOLN  stated that this  is the bill's  second hearing                                                               
before the committee and that  at the first hearing the committee                                                               
took invited and public testimony.   He said the co-chairs do not                                                               
intend to move the bill out of committee today.                                                                                 
                                                                                                                                
1:27:18 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN closed public testimony on HB 138.                                                                             
                                                                                                                                
1:27:27 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN  noted that the  following questions  were posed                                                               
by committee members  at the bill's first hearing:   1) how other                                                               
states  designate  Tier  3  waters   and  its  impacts  to  local                                                               
municipalities;  2)  whether   the  Department  of  Environmental                                                               
Conservation (DEC) currently has  the authority to designate Tier                                                               
3 waters,  and 3) how other  states designate Tier 3  waters.  He                                                               
directed attention  to the following  documents in  the committee                                                               
packet:    a legal  memorandum  regarding  designating a  Tier  3                                                               
waterbody by ballot  measure, a memorandum from DEC  on how other                                                               
states  designate  Tier  3  waters,   and  a  [legal]  memorandum                                                               
regarding the  [current] statutory authority of  DEC to designate                                                               
Tier 3 waters.                                                                                                                  
                                                                                                                                
1:27:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHUCK  KOPP, Alaska State Legislature,  sponsor of                                                               
HB  138, said  the aforementioned  memorandums should  answer the                                                               
committee's questions.                                                                                                          
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
1:29:12 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN  inquired whether  Ms. Currie of  the Department                                                               
of Law (DOL) could describe the legal memorandums.                                                                              
                                                                                                                                
JENNIFER    CURRIE,    Senior   Assistant    Attorney    General,                                                               
Environmental Section, Civil  Division (Anchorage), Department of                                                               
Law  (DOL), replied  that those  are not  her memorandums  and it                                                               
might  be  more appropriate  for  Legislative  Legal Services  to                                                               
introduce them.                                                                                                                 
                                                                                                                                
CO-CHAIR TARR said  the committee would like to go  over the same                                                               
two things with  the DOL that are in the  legislative legal memos                                                               
because  at  the   first  hearing  there  were   some  points  of                                                               
disagreement  and the  committee wants  to ground  truth it  with                                                               
DOL.   Regarding the first  issue of whether a  designation could                                                               
take place through a citizen  initiative, she related that Alaska                                                               
Legal Services  says no because  of the common  property resource                                                               
allocation issue.   In regard to the second issue  of whether DEC                                                               
currently has  the authority  to designate  [Tier 3  waters], she                                                               
related  that  according  to   Legislative  Legal  Services,  the                                                               
department does  have that  authority.   She requested  the DOL's                                                               
response or the administration's position on those two matters.                                                                 
                                                                                                                                
1:30:46 PM                                                                                                                    
                                                                                                                                
MS. CURRIE addressed  whether HB 138, as  written, would prohibit                                                               
initiatives from being filed with  respect to designation of Tier                                                               
3 waters.  She responded:                                                                                                       
                                                                                                                                
     Legislation  doesn't have  the ability  to cut  off ...                                                                    
     the  right  to   file  an  initiative.     And  so  the                                                                    
     Department of  Law plays an  integral role  in deciding                                                                    
     whether or not an initiative  is an appropriation.  And                                                                    
     at this point, we're not  in a position to adjudicate a                                                                    
     hypothetical  situation where  a  Tier 3  might be  ...                                                                    
     brought forward through initiative,  but I wouldn't say                                                                    
     that it cuts off the opportunity.                                                                                          
                                                                                                                                
1:31:51 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR drew  attention to the memorandum  in the committee                                                               
packet dated  May 1,  2019, from  Emily Nauman,  Deputy Director,                                                               
Legislative  Legal   Services,  regarding   Outstanding  National                                                               
Resource  Water:  Initiative.    She read  aloud  the  first  two                                                               
paragraphs  on   page  1,   which  state   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     You  asked whether,  if HB  138 passed,  the law  would                                                                    
     preclude designation  of outstanding  national resource                                                                    
     water by initiative.                                                                                                       
                                                                                                                                
     The short  answer is, under  the recent  Alaska Supreme                                                                    
                                                        1                                                                       
     Court  holding  in Mallott  v.  Stand  for  Salmon,  an                                                                    
     initiative  probably could  not  be  used to  designate                                                                    
     outstanding national  resource water  without violating                                                                    
     art. XI,  sec. 7  of the Constitution  of the  State of                                                                    
     Alaska, regardless of whether HB 138 passes.                                                                               
                                                                                                                                
CO-CHAIR TARR asked  whether Ms. Currie is saying  that the DOL's                                                               
position is that that is incorrect.                                                                                             
                                                                                                                                
MS. CURRIE  answered, "I would  say that the Department  of Law's                                                               
position is  that whether  or not it  was an  appropriation would                                                               
depend  on the  facts  of  the initiative  itself  and we're  not                                                               
prepared to  offer an  opinion about whether  every Tier  3 water                                                               
designation brought by initiative would be an appropriation."                                                                   
                                                                                                                                
1:32:49 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN offered his understanding  that, if the question                                                               
is set aside  of whether a Tier 3 waterbody  can be designated by                                                               
ballot initiative, the main underlying  point is that any sort of                                                               
statutory  change wouldn't  have  an impact  on  the ability  for                                                               
citizen-led initiatives to take place.                                                                                          
                                                                                                                                
MS. CURRIE replied, "I believe that's correct."                                                                                 
                                                                                                                                
1:33:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HANNAN  recounted Ms. Currie's statement  that Ms.                                                               
Currie  was unclear  as to  whether all  ballot initiatives  that                                                               
would  do Tier  3  designation would  be found  unconstitutional.                                                               
She requested  Ms. Currie to  elaborate on the  circumstances for                                                               
why some would and some would not.                                                                                              
                                                                                                                                
MS. CURRIE responded:                                                                                                           
                                                                                                                                
     I believe  that the individual circumstances  of a Tier                                                                    
     3 designation would or could  affect whether or not the                                                                    
     Department  of  Law  would determine  that  it  was  an                                                                    
     appropriation or  not.   And so I  think that  we can't                                                                    
     wholeheartedly  say,  as [Legislative  Legal  Services]                                                                    
     has, that it's likely  that every initiative brought to                                                                    
     designate a Tier 3 would be an appropriation.                                                                              
                                                                                                                                
REPRESENTATIVE  HANNAN  said  that  that  is  the  point  she  is                                                               
confused by.   She  requested a hypothetical  example of  how one                                                               
designation could  be an appropriation  and another  one wouldn't                                                               
be an appropriation.                                                                                                            
                                                                                                                                
MS.  CURRIE answered  she  is  hesitant to  do  that because  the                                                               
Department of Law  has a distinct role in  determining whether or                                                               
not  an  initiative  is  an   appropriation  or  not.    So,  she                                                               
continued,  she  wouldn't  want   to  opine  about  that  without                                                               
something concrete being proposed.                                                                                              
                                                                                                                                
REPRESENTATIVE HANNAN stated  she is unsure of what  would be the                                                               
legal  factors that  would  determine  whether or  not  it is  an                                                               
appropriation.  She asked whether it  would depend on the size of                                                               
the river, the  acreage impacted, the number  of people affected,                                                               
the cost, or the amount of the legal taking.                                                                                    
                                                                                                                                
MS. CURRIE replied  that she thinks all of those  things could be                                                               
factors.   She said she  also thinks that  technology, geography,                                                               
and many other things could come into the equation.                                                                             
                                                                                                                                
1:36:28 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR remarked  that this is very confusing  and said the                                                               
committee  had  hoped  to  work   through  these  details.    She                                                               
requested Ms.  Currie's reaction to  page 2, first  paragraph, of                                                               
Ms.  Nauman's May  1,  2019,  legal memo,  which  states in  part                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     The department has described the  standard; "if a water                                                                    
     were to be  designated by the state as a  Tier 3 water,                                                                    
     new  or  increased  discharges   that  would  lower  or                                                                    
        degrade the existing water quality would not be                                                                         
                                                      6                                                                         
     allowable unless they were temporary or limited."                                                                          
                                                                                                                                
     Because this  standard would likely  completely prevent                                                                    
     the  legislature from  permitting projects  that result                                                                    
     in  the permanent  destruction of  outstanding national                                                                    
     resource  water, a  court  is likely  to  find that  an                                                                    
     initiative  nominating  outstanding  national  resource                                                                    
                                                         7                                                                      
     water constitutes an unconstitutional appropriation.                                                                       
                                                                                                                                
MS.  CURRIE responded  that  she disagrees.    She continued,  "I                                                               
disagree that there  is a way to categorically  say that, without                                                               
having a specific river to consider."                                                                                           
                                                                                                                                
CO-CHAIR TARR  stated it is  interesting to have  two conflicting                                                               
thoughts on  this.  She  said she wants  to ensure that  there is                                                               
always an opportunity for  citizen participation, whichever route                                                               
the legislature  chooses.   This is  a challenge,  she continued,                                                               
given  [Legislative Legal  Services] says  that at  least through                                                               
this  process  that  wouldn't  be  a  way  for  the  citizens  to                                                               
participate,  but Ms.  Currie is  saying  that it  depends.   She                                                               
inquired  whether  Ms. Currie  could  look  at the  current  five                                                               
nominations and evaluate those.                                                                                                 
                                                                                                                                
MS. CURRIE answered she thinks  it would be inappropriate for the                                                               
Department of Law to opine on  the rivers that have been proposed                                                               
when they  haven't been proposed  by initiative, because  if they                                                               
were to come  by initiative and DOL were to  have already offered                                                               
an opinion that would be prejudicial.                                                                                           
                                                                                                                                
CO-CHAIR TARR offered her appreciation for Ms. Currie's answer.                                                                 
                                                                                                                                
1:39:57 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 1:40 p.m. to 1:46 p.m.                                                                       
                                                                                                                                
1:46:16 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  LINCOLN  brought attention  to  the  memorandum in  the                                                               
committee packet  dated May  2, 2019,  from Emily  Nauman, Deputy                                                               
Director,  Legislative Legal  Services,  regarding the  statutory                                                               
authority of  the Department of Environmental  Conservation (DEC)                                                               
to  designate Outstanding  National  Resource Water  (ONRW).   He                                                               
read  aloud page  2, paragraph  2, first  sentence, which  states                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Ultimately, I believe it is likely a court would find                                                                      
       that the department has the statutory authority to                                                                       
     designate or manage a water as an ONRW.                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN asked Ms. Currie if she has read this memo.                                                                    
                                                                                                                                
MS. CURRIE replied  she looked at the documents  available to her                                                               
two hours ago, but this memorandum  was not among them.  She said                                                               
she  has since  looked  at the  memo briefly,  but  hasn't had  a                                                               
chance to go into it in depth.                                                                                                  
                                                                                                                                
1:47:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HANNAN drew  attention to  the memorandum  in the                                                               
committee packet dated May 3,  2019, from Earl Crapps, Department                                                               
of Environmental Conservation (DEC),  regarding a review of other                                                               
states'  approach to  Tier  3.   She  read  aloud  from the  last                                                               
sentence  in   the  memo,  which  states   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
       Currently, the department is aware of four states:                                                                       
     Idaho, Indiana, Maine and Montana, where the authority                                                                     
     for Tier 3 designation resides with the Legislature.                                                                       
                                                                                                                                
REPRESENTATIVE  HANNAN  inquired whether  in  any  of those  four                                                               
states  it is  exclusively a  legislative designation  or whether                                                               
there is a process that those  legislatures must use to make that                                                               
determination.                                                                                                                  
                                                                                                                                
1:47:57 PM                                                                                                                    
                                                                                                                                
EARL CRAPPS, Manager, Domestic  and Industrial Utilities Section,                                                               
Wastewater  Discharge Authorization  Program, Division  of Water,                                                               
Department  of Environmental  Conservation (DEC),  responded that                                                               
for those  four states it  is not  exclusive, there is  a process                                                               
before legislative approval.                                                                                                    
                                                                                                                                
REPRESENTATIVE  HANNAN presumed  the  process isn't  the same  in                                                               
each of the four states and  requested Mr. Crapps to describe the                                                               
process for each state prior to a legislative designation.                                                                      
                                                                                                                                
MR. CRAPPS  answered that for the  most part in general  there is                                                               
an agency,  board, or commission review  before those nominations                                                               
are then forwarded to the legislature for final approval.                                                                       
                                                                                                                                
REPRESENTATIVE  HANNAN  asked   whether  those  legislatures  are                                                               
looking  at  a  score  and   an  evaluation  that  are  done  for                                                               
designation  by an  agency, board,  or commission.   She  further                                                               
asked whether  receiving a  certain score  is required  to pursue                                                               
the  designation or  whether the  legislature has  total latitude                                                               
regardless of what the agency, board, or commission recommends.                                                                 
                                                                                                                                
MR.  CRAPPS offered  his understanding  that the  legislature has                                                               
the latitude regardless of what is provided to it.                                                                              
                                                                                                                                
REPRESENTATIVE  HANNAN   inquired  as   to  the   consistency  of                                                               
complying with  the recommendations given to  the legislatures in                                                               
those states.                                                                                                                   
                                                                                                                                
MR. CRAPPS  replied it would be  widely varied.  For  example, he                                                               
continued,  Idaho  is  one  of the  four  states  identified  and                                                               
Idaho's legislature has not yet designated a Tier 3 water.                                                                      
                                                                                                                                
REPRESENTATIVE HANNAN  asked how long  Idaho has had  its process                                                               
in place.                                                                                                                       
                                                                                                                                
MR.  CRAPPS responded  it varies  by state  and he  will have  to                                                               
provide that information to the committee at a later date.                                                                      
                                                                                                                                
1:50:57 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  TARR  referenced the  May  2,  2019, Legislative  Legal                                                               
Services  memorandum,  and  stated   that  there  is  conflicting                                                               
information as to  whether DEC can currently do  this and whether                                                               
the   legislation  is   necessary.     She   asked  whether   the                                                               
administration has a position on that.                                                                                          
                                                                                                                                
MS.  CURRIE answered  that DOL's  position  is that  it isn't  as                                                               
clear a conclusion as the  memorandum would present.  The reason,                                                               
she said,  is that  the designation  of a  Tier 3  water contains                                                               
many other  factors besides  water quality  and purity,  which is                                                               
what DEC was  delegated authority to make decisions  on.  Because                                                               
of that,  she continued, DOL thinks  it is unclear as  to whether                                                               
DEC currently has the authority to do those designations.                                                                       
                                                                                                                                
1:52:23 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN stated  there is a need for more  time to review                                                               
the information.   He said the Alaska Municipal  League (AML) has                                                               
prepared a presentation for today  in response to the committee's                                                               
questions at the bill's first hearing [on 4/29/19].                                                                             
                                                                                                                                
1:52:53 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR related  that the bill as  originally introduced in                                                               
the other body  [SB 51] was supported by the  administration.  In                                                               
[SB 51], she  continued, designation had to be  reviewed by three                                                               
departments and  then go  to the legislature  for approval.   She                                                               
posed  a scenario  in which  there  would be  an opportunity  for                                                               
agency designation  or legislative approval and  pointed out that                                                               
in this  scenario citizens  could go to  the legislature  if they                                                               
believed an  agency was  being unresponsive.   She  asked whether                                                               
the Department of  Law has a position or thoughts  on the idea of                                                               
this kind of a dual process.                                                                                                    
                                                                                                                                
MS.  CURRIE replied  she would  have to  see the  wording of  any                                                               
amendment and does not have an opinion one way or the other.                                                                    
                                                                                                                                
1:54:18 PM                                                                                                                    
                                                                                                                                
NILS  ANDREASSEN,  Executive  Director, Alaska  Municipal  League                                                               
(AML), explained that his PowerPoint  presentation titled "Tier 3                                                               
Designation Impacting  Community Development"  is a  follow-up to                                                               
his 4/29/19  testimony on HB  138.  Turning  to slide 2,  he said                                                               
his  starting point  is similar  to  the Department  of Law's  in                                                               
regard to "adjudicate hypotheticals," in  that AML is being asked                                                               
"to determine  ... what  that impact looks  like for  a community                                                               
without that community  and that question in front us."   He said                                                               
the  bill, as  he understands  it,  is to  determine whether  the                                                               
legislature is the appropriate body  to make decisions related to                                                               
Tier  3 designations.    Separately and  differently,  it is  not                                                               
about whether  an actual Tier  3 designation has impact  or value                                                               
or what those would be, he continued.                                                                                           
                                                                                                                                
MR. ANDREASSEN stated he is basing  a lot of his understanding on                                                               
the work done by  DEC and that slide 3 is a  snapshot of a number                                                               
of DEC  documents related  to Tier  3 designation.   He  said the                                                               
first statement is  the starting point and read it  aloud:  "If a                                                               
water were to be  designated by the state as a  Tier 3 water, new                                                               
or increased discharges that would  lower or degrade the existing                                                               
water quality would  not be allowable unless  they were temporary                                                               
or limited."   This impacts  communities in many  different ways,                                                               
he continued, and across the board across the state.                                                                            
                                                                                                                                
1:56:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  TUCK  said  it  is pretty  well  known  that  the                                                               
legislature  has the  ultimate decision  making authority  to use                                                               
specific public assets  for specific purposes.   He asked whether                                                               
what is  being reviewed today  is that the legislature  does have                                                               
that authority.                                                                                                                 
                                                                                                                                
MR.  ANDREASSEN replied  that that  is his  understanding of  the                                                               
bill's  intent.   He  said  the question  asked  of  him was  the                                                               
municipal impact, or the  relationship between municipalities and                                                               
local governments and HB 138.                                                                                                   
                                                                                                                                
CO-CHAIR LINCOLN related that there  was a question at the bill's                                                               
first  hearing on  the impacts  to  municipalities for  different                                                               
types of  projects and that  Mr. Andreassen had agreed  to follow                                                               
up with answers to those questions.                                                                                             
                                                                                                                                
REPRESENTATIVE TUCK drew  attention to the first  bullet point on                                                               
slide 2, which states:  "The  question raised by HB138 is whether                                                               
the  Legislature is  best-suited to  determine impact  ...."   He                                                               
said he  thinks the  legislature has  the ultimate  decision just                                                               
naturally  and by  the state's  constitution.   He  noted he  was                                                               
unsure whether it was this issue  that would be reviewed today or                                                               
the impact on municipalities.                                                                                                   
                                                                                                                                
1:57:48 PM                                                                                                                    
                                                                                                                                
MR. ANDREASSEN  moved to  slide 4  and resumed  his presentation.                                                               
He said the roles of municipalities  are many and so he looked at                                                               
the 165  cities and  boroughs that  are members  of AML  that are                                                               
incorporated as cities or boroughs,  or as political subdivisions                                                               
of the  state, and  examined their intersection  with water.   He                                                               
reported that 112  municipalities have the power  to manage their                                                               
water  systems,   111  have   the  power   to  manage   and  have                                                               
responsibility  for sewer  and wastewater,  72  have adopted  the                                                               
power to  manage their  ports and harbors,  109 have  adopted the                                                               
power to  manage their landfills  and solid and  hazardous waste,                                                               
108  have  adopted  powers  related   to  road  construction  and                                                               
maintenance, and 2 have adopted  powers related to flood control.                                                               
Each of  these intersects with  a Tier 3 designation,  he pointed                                                               
out.  However, he  added, it is not across the  board in terms of                                                               
how  municipalities   have  adopted   powers  -  only   12  local                                                               
governments have no powers related to  any of these, so 7 percent                                                               
aren't  responsible  in a  way  that  intersects  with a  Tier  3                                                               
designation, and  93 percent of  city and borough  governments in                                                               
the state  would potentially be  affected by Tier  3 designation.                                                               
Additionally, he  noted, AML's understanding  is that  fish waste                                                               
or processing facilities and other  things upon which communities                                                               
might depend as  a tax base could be impacted,  as well as gravel                                                               
pits for  local infrastructure,  road construction,  and building                                                               
materials.  Further,  he added, there are  questions around barge                                                               
traffic  or  fuel  delivery  to  the extent  that  they  are  not                                                               
temporary impacts.                                                                                                              
                                                                                                                                
1:59:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HANNAN inquired  whether AML  looked at  the five                                                               
current  nominations for  rivers and  how many  municipalities or                                                               
organized governments those intersect with.                                                                                     
                                                                                                                                
MR. ANDREASSEN  responded he  has a  forthcoming slide  that will                                                               
address that.                                                                                                                   
                                                                                                                                
2:00:10 PM                                                                                                                    
                                                                                                                                
MR. ANDREASSEN  continued his  presentation and  addressed slides                                                               
5-7.  He said he looked  at the Village Safe Water program, which                                                               
addresses  other  communities  beyond  incorporated  cities  that                                                               
might  have  water and  wastewater  needs,  and that  the  slides                                                               
depict  the priority  projects  listed within  the  program.   He                                                               
pointed out  that a  number of communities  are waiting  on first                                                               
service or upgrades  to service, both of  which could potentially                                                               
add to  discharge related  to waterbodies.   So,  he said,  it is                                                               
incredibly significant  to incorporated  cities and  boroughs and                                                               
communities  around the  state,  including those  that are  still                                                               
waiting for water  and wastewater management.   He suggested that                                                               
this is probably something better for  DEC to follow up on in the                                                               
future as HB 138 is further considered.                                                                                         
                                                                                                                                
REPRESENTATIVE  HANNAN  asked  whether first  service  means  the                                                               
village  currently has  no municipal  or  local government  water                                                               
service and therefore individual  homeowners would be using honey                                                               
buckets or would have septic systems or wells of their own.                                                                     
                                                                                                                                
MR.  ANDREASSEN answered  that  that is  his  understanding.   He                                                               
added, "It  might be less that  there is no municipal  service or                                                               
there  is no  service  in that  community, or  that  there is  an                                                               
expansion of service  in the community different  than an upgrade                                                               
to those facilities."                                                                                                           
                                                                                                                                
2:02:23 PM                                                                                                                    
                                                                                                                                
MR. ANDREASSEN  turned to slide  8 and discussed  the communities                                                               
that  could be  potentially impacted  by the  current nominations                                                               
for Tier 3 designation.  He  qualified he doesn't have the [five]                                                               
Tier 3 nominations  in front of him, but that  the communities on                                                               
slide 8  are near to, or  related to, nominated waterbodies.   He                                                               
said  the slide  illustrates the  different types  of communities                                                               
(different powers, obligations,  and responsibilities) related to                                                               
any one waterbody.  He qualified  he doesn't have a clear picture                                                               
of the Chandalar  River, but noted [Fort  Yukon] is incorporated,                                                               
in  an unorganized  borough,  with  responsibilities [for  water,                                                               
landfill,  and  solid  waste];   and  [Venetie  and  Beaver]  are                                                               
unincorporated  so  don't  have   responsibilities,  and  are  in                                                               
unorganized boroughs.   Regarding the Yakutat  Forelands, he said                                                               
the  City   and  Borough   of  Yakutat  has   a  full   suite  of                                                               
responsibilities [sewer, water,  landfill, ports/harbors, roads],                                                               
and has an ordinance objecting  to the nomination.  Regarding the                                                               
Chilkat River, he stated that  the Haines Borough is incorporated                                                               
[with  responsibilities  of  sewer, piped  water,  ports/harbors,                                                               
roads]  and  that Klukwan  is  unincorporated  in an  unorganized                                                               
borough.   Regarding  the Koktuli  River, he  said the  different                                                               
communities   have  different   responsibilities  [Newhalen   and                                                               
Nondalton  are  each  responsible  for  sewer,  water,  landfill,                                                               
roads, and  Lake and Peninsula Borough  ports/harbors; Iliamna is                                                               
unincorporated  and  in the  Lake  and  Peninsula Borough].    He                                                               
opined  that in  the case  of an  unincorporated community  in an                                                               
unorganized  borough, the  question of  a Tier  3 designation  is                                                               
placed on the legislature as that borough's assembly.                                                                           
                                                                                                                                
2:05:47 PM                                                                                                                    
                                                                                                                                
MR. ANDREASSEN displayed slide 9  and related AML's justification                                                               
for legislative approval  related to HB 138.  He  stated that for                                                               
AML it starts in the constitution,  and the members he has talked                                                               
with have  said they would  prefer that power.   As shown  by his                                                               
review of communities related to  the current nominations, making                                                               
it a  local decision  would be challenging,  he continued.   This                                                               
body,   he   said,   gives  those   communities/stakeholders   an                                                               
opportunity to  air the challenges, concerns,  and questions they                                                               
have  in  front  of  policymakers responsible  for  making  those                                                               
decisions.   He pointed  out that the  majority of  APDES [Alaska                                                               
Pollutant  Discharge  Elimination   System]  permits  are  issued                                                               
within  an  organized  borough,  which  has  the  capability  and                                                               
capacity, along with DEC as a  regulator, in a way that might not                                                               
be  had  in the  unorganized  borough.   An  unorganized  borough                                                               
doesn't  have   an  assembly  other  than   the  legislature,  he                                                               
reiterated, which  gives the  legislature a  different obligation                                                               
than  in an  organized borough.    There is  extensive impact  to                                                               
local governments across the state,  he continued, but not all of                                                               
these are regulated  by DEC.  The legislature, he  added, is in a                                                               
strong position to  work with DEC to fully vet  with public input                                                               
any proposal  designating a water  of national significance.   He                                                               
said the naming  of water of national significance  speaks to him                                                               
as going  beyond an agency decision,  and is similar to  the role                                                               
of  the  U.S.  Congress  in   naming  national  parks  and  other                                                               
conservation units.   He maintained  that while the  decision can                                                               
be made  with best science  and public  input, it is  a political                                                               
decision that is appropriate to be made by the legislature.                                                                     
                                                                                                                                
CO-CHAIR  TARR pointed  out that  APDES is  the Alaska  Pollution                                                               
Discharge Elimination  System and  that the  State of  Alaska has                                                               
primacy   under  the   [federal]   Clean  Water   Act  for   that                                                               
responsibility, which  is a  whole part  of this  conversation in                                                               
terms of delegation of authority and who gets to do that.                                                                       
                                                                                                                                
MR. ANDREASSEN turned to slide  10 and continued to discuss AML's                                                               
justification for  legislative approval  related to  HB 138.   He                                                               
stated the  legislature has created and  named conservation units                                                               
in Alaska,  including the  designation of 120  park units  and 13                                                               
marine parks.   Given  this, he said,  it shouldn't  be different                                                               
when it  comes to waters of  national significance.  He  noted he                                                               
was pleased to provide invited  testimony during the bill's first                                                               
hearing and that  public testimony was also taken then.   When it                                                               
moves beyond  hypotheticals to a  designation, he  continued, AML                                                               
will be at  the table to talk  about what it would  look like for                                                               
each community.                                                                                                                 
                                                                                                                                
2:08:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  TUCK asked  whether  a  future legislature  could                                                               
reverse a previous legislature's designation of a Tier 3.                                                                       
                                                                                                                                
MR. CRAPPS replied  that that is not detailed in  the Clean Water                                                               
Act.    He related  that  the  Environmental Protection  Agency's                                                               
(EPA's) opinion  is that there is  no precedent for that,  so the                                                               
possibility  for  a Tier  3  designation  to be  undesignated  is                                                               
available and would be on a case-by-case basis.                                                                                 
                                                                                                                                
2:09:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HANNAN  recounted that this issue  has been around                                                               
for a  while and the AML  has taken a stance  on whether impacted                                                               
communities should  have a formal  stop in  the process.   As the                                                               
bill  is currently  written, she  noted, it  would be  up to  the                                                               
legislature, 60 people  exclusively, to make that  decision.  She                                                               
asked whether  AML believes  communities should  have any  say in                                                               
the  process  as  a formal  check-off,  involvement,  engagement,                                                               
consultation, or should just be  engaged in the political process                                                               
so  a community  that has  power might  have a  say, but  a small                                                               
isolated  community that  is unincorporated  would  have no  say.                                                               
She  further asked  whether the  communities have  weighed in  on                                                               
this element.                                                                                                                   
                                                                                                                                
MR. ANDREASSEN  responded AML has  not tackled  this specifically                                                               
but would be  happy to weigh in on that  at the appropriate point                                                               
in  further consideration  of  HB  138.   He  said the  committee                                                               
structure  of  the  legislature   is  relevant,  meaningful,  and                                                               
produces a lot  of that stakeholder engagement  that makes things                                                               
accessible and  hopefully produces  outcomes consistent  with the                                                               
public interest.                                                                                                                
                                                                                                                                
REPRESENTATIVE HANNAN  recalled Mr.  Andreassen stating  that the                                                               
community of  Yakutat had  issued a  resolution in  opposition to                                                               
Yakutat  Forelands.    She  inquired whether  any  of  the  other                                                               
communities  have   offered  input   into  any  of   those  other                                                               
nominations.   For  example, she  noted, Klukwan  has weighed  in                                                               
with its support of a designation.                                                                                              
                                                                                                                                
MR. ANDREASSEN  offered his belief  that others have  weighed in,                                                               
but without having  that before the committee it is  hard for him                                                               
to  poll AML's  members for  that feedback  as it  would be  on a                                                               
case-by-case  basis.   He added  he would  appreciate a  weighted                                                               
consideration when it comes to  municipal government as he thinks                                                               
that would be valuable.                                                                                                         
                                                                                                                                
2:11:20 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  TARR recounted  that when  the  legislature passed  the                                                               
enabling  statutes   after  the  citizen   initiative  legalizing                                                               
marijuana, the  legislature gave a  local option component.   She                                                               
asked whether  this same  kind of model  would be  something that                                                               
AML could support  or whether AML has another  suggestion for how                                                               
giving weighted support to communities could be accomplished.                                                                   
                                                                                                                                
MR.  ANDREASSEN answered  that AML  would definitely  consider an                                                               
elegant solution  like that for  working with the  legislature to                                                               
ensure  local  control  and  voice  in  designating  a  water  of                                                               
national significance.                                                                                                          
                                                                                                                                
CO-CHAIR TARR  pointed out that in  the case of a  designation by                                                               
statute, any  statute can  be repealed  and so  there would  be a                                                               
process for  that.  She  requested clarification from  Mr. Crapps                                                               
regarding  his  statement  that there  isn't  any  precedent  for                                                               
"undesignation."                                                                                                                
                                                                                                                                
2:13:38 PM                                                                                                                    
                                                                                                                                
MR. CRAPPS  replied he was just  speaking to the Clean  Water Act                                                               
and  it doesn't  specify that,  so whatever  is the  process that                                                               
states arrive on is what the Tier 3 process will be.                                                                            
                                                                                                                                
2:14:02 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN clarified that the designation  of a Tier 3 is a                                                               
federal designation  and the federal government  has asked states                                                               
to come  up with a  nomination and  designation process.   So, he                                                               
explained, if  the [Alaska State  Legislature] were to ask  for a                                                               
designation through statute and  then the legislature rolled back                                                               
the  statute,  it  would not  automatically  compel  the  federal                                                               
government to roll back the  designation.  There is nothing right                                                               
now in  federal law that  prevents that, he continued,  but there                                                               
is  also  nothing  that  specifies   a  procedure  or  explicitly                                                               
authorizes [the federal  government] to do that.   He pointed out                                                               
that situations with any ambiguity  and multiple positions on the                                                               
topic are going to  end up in court.  So, he  said, at this point                                                               
it is  a foregone  conclusion that  if the state  were to  have a                                                               
designated Tier 3  and then tried to roll it  back, it would have                                                               
to go to court and get settled there.                                                                                           
                                                                                                                                
CO-CHAIR  LINCOLN noted  that each  committee member  appreciates                                                               
the  importance of  HB 138  and its  topic and  that there  is no                                                               
intention to rush  this process this session.  He  said more will                                                               
be learned during  the interim and HB 138 will  be addressed in a                                                               
responsible way during the next legislative session.                                                                            
                                                                                                                                
[HB 138 was held over.]                                                                                                         

Document Name Date/Time Subjects
SB43 Sponsor Statement.pdf HRES 5/3/2019 1:00:00 PM
SRES 2/20/2019 3:30:00 PM
SB 43
CSSB 43 (SFIN) - Sectional Summary.pdf HRES 5/3/2019 1:00:00 PM
SB 43
SB 43, Version A.PDF HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
SB 43
CSSB 43, Version B.pdf HRES 5/3/2019 1:00:00 PM
SB 43
SB 43 Work Draft v. M - Explanation.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
SB 43
SB43 Fiscal Note One - DCCED-CBPL 2.15.19.PDF HRES 5/3/2019 1:00:00 PM
SB 43
SB43 Fiscal Note Two - DCCED-CBPL 4.9.19.PDF HRES 5/3/2019 1:00:00 PM
SB 43
SB 43 Letters of Support.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
SB 43
SB 43 Letters of Opposition.pdf HRES 5/3/2019 1:00:00 PM
SFIN 3/13/2019 9:00:00 AM
SFIN 4/9/2019 9:00:00 AM
SB 43
SB 43 DCPL Letter .pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
SB 43
SB 43 Bunch Testimony.pdf HRES 5/3/2019 1:00:00 PM
SFIN 3/13/2019 9:00:00 AM
SFIN 4/9/2019 9:00:00 AM
SB 43
SB 43 Additional Testimony Huttunen.pdf HRES 5/3/2019 1:00:00 PM
SFIN 3/13/2019 9:00:00 AM
SFIN 4/9/2019 9:00:00 AM
SB 43
SB 43 BGCSB Letter of Support 4.03.19.pdf HRES 5/3/2019 1:00:00 PM
SB 43
SB 43 Big Game Commercial Services Board Sunset Review Audit.pdf HRES 5/3/2019 1:00:00 PM
SFIN 3/13/2019 9:00:00 AM
SB 43
SB43 Supporting Document - RHAK Letter House Resources 4.25.19.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
SB 43
HB138 Sponsor Statement version U 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 version A 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Fiscal Note 4.26.19.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HB 138
HB138 40 CFR Part 131 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 18 AAC 70.016 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Supporting Material DEC Tier 3 Water Designation FAQ 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HRES 2/24/2020 1:00:00 PM
HRES 3/9/2020 1:00:00 PM
HRES 3/11/2020 1:00:00 PM
HB 138
HB138 Supporting Material DNR Fact Sheet Legislatively Designated Areas 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HB138 Supporting Material DEC Tier 3 response 4.22.2019.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Supporting Material Commissioner Hartig Letter to Senate 4.22.2019.PDF HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HRES 2/24/2020 1:00:00 PM
HB 138
HR138 Supporting Document EPA Response to DEC 7.26.18.pdf HRES 5/3/2019 1:00:00 PM
HR 138
HB138 Supporting Document - DEC P&P re Tier 3 Nomination 11.21.18.pdf HRES 4/29/2019 1:00:00 PM
HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Supporting Document - AML Presentation Tier 3 Designation Impact 05.03.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Supporting Document - DEC attachment sent to EPA 3.6.2018.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HRES 3/9/2020 1:00:00 PM
HB 138
HB138 Supporting Document - Legal Opinion re HB 138 and Ballot Initiatives 5.1.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HRES 2/24/2020 1:00:00 PM
HRES 3/9/2020 1:00:00 PM
HRES 3/11/2020 1:00:00 PM
HB 138
HB 138 Supporting Documents - SEACC Letter and Reference Material 05.01.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Letters of Opposition 05.02.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Suppporting Document - Doyon Letter of Support 4.26.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HB138 Coalition Letter of Support 4.28.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HB138 Supporting Documents - Chilkat Indian Village 04.26.19.pdf HRES 5/3/2019 1:00:00 PM
HB116 Sponsor Statement 4.15.19.pdf HFSH 4/16/2019 10:00:00 AM
HFSH 4/25/2019 10:00:00 AM
HRES 5/3/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB116 ver U 04.30.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB116 DNR Fiscal Note 04.30.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB116 ver U Sectional Analysis 04.30.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB116 Explanation of Changes ver A to ver U 04.30.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB116 Aquatic Farm Application Review Flow Chart 04.30.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB 116 - AFDF Letter of Support 2019-04-15.pdf HFSH 4/16/2019 10:00:00 AM
HFSH 4/25/2019 10:00:00 AM
HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HB 116
HB116 ASGA Letter of Support 04.15.19.pdf HFSH 4/16/2019 10:00:00 AM
HFSH 4/25/2019 10:00:00 AM
HRES 5/3/2019 1:00:00 PM
HB 116
HB116 Supporting Document- Mariculture Plan.pdf HFSH 4/16/2019 10:00:00 AM
HFSH 4/25/2019 10:00:00 AM
HRES 5/3/2019 1:00:00 PM
HRES 5/6/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB 116 Letter of Opposition-Hillstrand.pdf HFSH 4/25/2019 10:00:00 AM
HRES 5/3/2019 1:00:00 PM
HRES 5/10/2019 1:00:00 PM
HB 116
HB138 Supporting Document - DEC State Tier 3 Review 5.3.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HB138 Supporting Document - EPA to DEC Email 11.23.18.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HRES 2/24/2020 1:00:00 PM
HB 138
HB138 Supporting Document - Legal Opinion re DEC Statutory Authority to Designate Tier 3 Waters 5.2.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HRES 2/24/2020 1:00:00 PM
HRES 3/9/2020 1:00:00 PM
HRES 3/11/2020 1:00:00 PM
HB 138
HB138 Opposing Document - Letter in Opposition to House Resources Committee from SEACC - 5.1.19 (002).pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138
HB138 Supporting Document - Conitz Letter of Opposition 05.02.19.pdf HRES 5/3/2019 1:00:00 PM
HRES 2/10/2020 1:00:00 PM
HRES 2/14/2020 1:00:00 PM
HRES 2/17/2020 1:00:00 PM
HB 138