Legislature(2013 - 2014)SENATE FINANCE 532
04/03/2013 01:30 PM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB77 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 18 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 77 | TELECONFERENCED | |
SENATE FINANCE COMMITTEE
April 3, 2013
1:42 p.m.
1:42:42 PM
CALL TO ORDER
Co-Chair Meyer called the Senate Finance Committee meeting
to order at 1:42 p.m.
MEMBERS PRESENT
Senator Pete Kelly, Co-Chair
Senator Kevin Meyer, Co-Chair
Senator Anna Fairclough, Vice-Chair
Senator Click Bishop
Senator Mike Dunleavy
Senator Lyman Hoffman
Senator Donny Olson
MEMBERS ABSENT
None
ALSO PRESENT
Wynn Menefee, Chief of Operations, Division of Mining, Land
& Water, Department of Natural Resources; Daniel Sullivan,
Commissioner, Department of Natural Resources; Melanie
Brown, Self, Bristol Bay; Paul Fuhs, Alaska Sea Farms;
Lindsey Bloom, Alaska Independent Fishermen's Marketing
Association; James Sullivan, Southeast Alaska Conservation
Council; Jennifer Hanlon, Environmental Specialist, Central
Council of the Tlingit & Haida Indian Tribes of Alaska;
Rick Halford, Self.
PRESENT VIA TELECONFERENCE
Levi Hohl, Alaska Fly Anglers Inc., Kodiak; Gina Friccero,
Self, Kodiak; Jody Malus, Self, Bethel; Harold Bhlem, Self,
Valdez; Diann Darnall, Self, Fairbanks; Sylvia Panzarella,
Self, Anchorage; Tim Troll, Executive Director, Bristol Bay
Heritage Land Trust, Anchorage; Brian Kraft, Vice-
President, Katmai Service Providers, Anchorage; Sam Snyder,
Self, Anchorage; Melissa Heuer, Self, Anchorage; Katherine
Huber, Self, Anchorage; Dorothy B. Larson, Tribal
Administrator, Curyung Tribal Council, Dillingham; Bill
Maines, Self, Dillingham; Dan Dunaway, Self, Dillingham;
Tom Tilden, Self, Dillingham; Mike Byerly, Self, Homer;
Jessica Tenhoff, Self, Homer; Lee Tenhoff, Self, Homer; Hal
Shepherd, Center for Water Advocacy, City of Elim, and
Norton Bay Inter-Tribal Watershed Council, Kenai; Michele
Martin, Self, Kenai; Nick Cassara, Self, Mat-Su; Jim
Colver, Self, Mat-Su; Dave Atcheson, Self, Kenai; Nelli
Williams, Trout Unlimited, Anchorage; Rachael Petro,
President and CEO, Alaska State Chamber of Commerce,
Anchorage; Katherine Carscallen, Self, Dillingham; Dwight
Gurley, Self, Anchorage; Kristin Carpenter, Executive
Director, Copper River Watershed Project, Cordova; Joy
Huntington, Tanana Chiefs Conference, Fairbanks; Eric
Nassuk, Native Village of Koyuk, Koyuk; Ronald Barnes,
Indigenous Peoples & Nations Coalition, Dillingham; Ronni
Burnett, Self, Anchorage; Nikos Pastos, Self, Seward; Andy
Rogers, Self, Anchorage; Verner Wilson, Self, Dillingham;
Kim Williams, Self, Dillingham; Jennifer Harrison,
Executive Director, Chickaloon Native Village, Dillingham;
Gayla Woods, Self, Dillingham.
SUMMARY
SB 18 BUDGET: CAPITAL
SB 18 was SCHEDULED but not HEARD.
CSHB 77(RES)
LAND USE/DISP/EXCHANGES; WATER RIGHTS
CSHB 77(RES) was HEARD and HELD in committee
for further consideration.
CS FOR HOUSE BILL NO. 77(RES)
"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."
1:43:02 PM
Co-Chair Meyer observed that the committee would take
public testimony on HB 77 as soon as possible, but that he
wanted to give the administration a chance to finish
explaining the bill first. He added that the administration
had agreed to come back for questions after the public
testimony. He offered apologies to the public for the
delay, but opined that the information would be useful to
testifiers, as well as committee members.
WYNN MENEFEE, CHIEF OF OPERATIONS, DIVISION OF MINING, LAND
& WATER, DEPARTMENT OF NATURAL RESOURCES, began to speak to
the briefing paper (copy on file). He related that the
previous presentation had left off on item 7.
Mr. Menefee began to speak to item 8 and stated that the
current statutes specified that if water was moved from one
hydrologic unit to another without authorization, the
offender would be guilty of a misdemeanor. He clarified
that the Department of Natural Resources (DNR) wanted to
focus on a significant amount of water and pointed out that
the item added "significant amount of water" to the
language. He shared that there were only 6 hydrologic units
in the state and that although there was not a lot of
instances of this offense happening, the department wanted
to clarify the issue to avoid confusion.
Mr. Menefee addressed item 9 of the briefing paper and
stated that it addressed a part of the statutes that dealt
with appeals. He explained that the item changed two things
in the statutes. The first change required an entity to be
involved upfront in the process in order to be eligible to
appeal a decision that the department gave a 30-day notice
on. He explained that the department was trying to get
people to participate in the process so that concerns could
be addressed while the process was still ongoing rather
than doing so after the fact. He stated that currently the
standard for being able to appeal was if someone was
"aggrieved" by the decision and offered that this meant
simply "upset" to most people. He related that people wrote
appeals to the commissioner that expressed dislike of
decisions, but that they did not offer any substantial
reason as to why. He pointed out that the item changed the
language from "aggrieved" to "substantially and adversely
affected." He explained that the word "substantial" ensured
that there would be enough information for the department
to be able to address concerns and that "adversely
affected" was intended to make sure that someone was harmed
or had experienced something that adversely affected them.
Mr. Menefee spoke to item 10 and stated that it clarified
that the opening and closing of the right to file mineral
or mining claims were noticed to the public. He pointed out
that the current statute only referenced mineral closing
orders and that the change would make it so that the
department would also have to notify the public when it
reopened the claim process.
Mr. Menefee discussed item 11 and explained that the state
was the platting authority in the unorganized borough. He
stated that currently DNR had to be approached to subdivide
a parcel of land in the unorganized borough and expounded
that if there were no public easements involved, there were
no public comments because it did not have an effect on
anyone; however, in these instances, the department still
held 30 days of public review and charged the applicant for
the process of notification. He stated that the department
wanted to remove the statutory requirement of the 30-day
public review and posting in the papers for instances in
which there was a subdivision with no easements. He pointed
out that the change would save the applicant costs and
time.
Mr. Menefee addressed item 12, which dealt with DNR's land
sales. He explained that the department conducted auctions
for land sales, many of which were conducted online. He
pointed out that the item clarified the definition of
auction to include online public auctions and added that
the department conducted many of its sales through the
internet.
1:48:44 PM
Mr. Menefee addressed item 13 and stated that it dealt with
best interest determinations for disposals of interest. He
pointed out that currently, the department was only
required to complete one written finding. He reported that
the department often issued two written findings, which
included a preliminary and a final decision. He explained
that the department offered two findings when it thought
that it was appropriate in order to give people an
opportunity to comment on the preliminary decision. He
stated that the change would add in statute that DNR "may"
include two written findings, which would reinforced a
practice that the department was already using to be more
inclusive of the public.
Mr. Menefee reported that there were minor statutory
revisions throughout the bill that consisted of wording
clarifications that were intended to make it easier to read
and understand the statutes.
Co-Chair Meyer noted the committee's attendance.
Senator Hoffman stated that he had accessed the online
report regarding water reservations that were pending and
granted to a person. He observed that in the last 6 years,
money had been given to DNR to address legislators'
concerns regarding the department's lack of progress on
"taking up" permits. He offered that the department had
approved 4 permits in 2012, 11 permits in 2011, and 10
permits in 2010 and pointed out that the number of permits
being issued seemed to be going down. He stated that the
permits that were approved were from the Department of Fish
and Game (ADFG), DNR, and the Bureau of Land Management
(BLM) and opined that the vast majority of permits that
still needed action by the department were from other
entities.
Senator Hoffman inquired what was causing the holdup with
the permits, why there was a downturn in the number being
issued, and where the state was going with permitting. He
further inquired if the state was reducing the number of
permits being issued and wondered what the time frame was
for permits that were pending. He related that there had
been 61 permits approved and that there were 371 still
outstanding, 200 of which were from the fish and wildlife
service. He asked when the department would get caught up
with the backlog of permits and how the legislation would
help accomplish that. He wondered if the department needed
additional funds to address the issue and pointed out that
over the course of the last 4 years, the legislature had
been giving the department money to address the backlog in
the processing of applications.
DANIEL SULLIVAN, COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES, inquired if Senator Hoffman was referring to
water reservation applications. Senator Hoffman replied in
the affirmative.
Commissioner Sullivan responded to Senator Hoffman's
questions and offered that the department had made good
progress on reducing the overall backlog of permits, which
mostly involved mining, land, and water. He stressed that
Senator Hoffman was referring specifically to water
reservation applications and conferred that the department
had made quite a bit of progress on the significant backlog
of those permits. He noted that he would let Mr. Menefee
address the way that the department had prioritized the
permits, but pointed out that most of the permits had been
focused on fish and game and protecting habitat.
Mr. Menefee stated that the prioritization effort occurred
yearly and examined all of the applications, which were
primarily from ADFG; additionally, there were many
applications from the federal government. He confirmed that
there were 361 outstanding water reservation applications.
He reported that the department prioritized the
applications by the potential risk of not having the
reservation, the quality of the data that was collected,
and several other aspects. He stated that DNR conducted the
prioritization with ADFG at an annual meeting in order to
ensure that the applications that needed the prioritization
for a water reservation were processed first. He stated
that the department prioritized about 20 water reservation
applications every year and observed that it had been
issuing about 11 per year on average.
Mr. Menefee continued to address Senator Hoffman's
questions and related that the backlog would take some time
to go through. He pointed out that a primary issue was that
it still took about 5 years of data gathering before a
water reservation could be adjudicated and stressed that
there was a time factor in the evaluation.
1:56:31 PM
Senator Hoffman inquired if the department was aware of a
lawsuit that was filed by the Chuitna Citizens Coalition.
He explained that the coalition had made an application to
DNR for a temporary water permit, but were refused; the
coalition had taken the case to court. He pointed out that
the department had approved a temporary permit, which was
for up to 305,000 gallons of water, for PacRim Coal in a
"mere" eight days. He discussed the Chuitna case and
pointed out that the Alaska Supreme Court had overturned
the department's decision, upholding that it had to
consider the coalition's application for keeping water in
the streams for fish.
Senator Hoffman wondered why the department had not taken
action on the Chuitna Citizens Coalition's application and
had instead decided to fight the lawsuit. He further
inquired what the department's reasoning was for denying
the request to protect the stream for salmon. Mr. Menefee
replied that the primary issue in the lawsuit had been over
when a water reservation had to be adjudicated versus
issuing temporary water-use authorizations. He explained
that because a temporary water-use authorization was a
completely different type of authorization than a water
reservation, was revocable, temporary, modifiable, as well
as certain regulations that explained how to address a
conflict, the department had felt that the appropriate
protections were in place. He offered that the reason the
coalition's reservation had not been dealt with yet was
simply because it had not been prioritized at that point.
Mr. Menefee continued to address the points raised by
Senator Hoffman and reported that the temporary water-use
authorization that the department had issued for
exploration was a need that had to be addressed at the
time; the department had felt that through the fish and
game authorizations and the temporary water-use
authorizations, there were enough restrictions and
considerations in place to protect fish habitat.
Senator Hoffman noted that after the Alaska Supreme Court
had overturned the DNR decision, the Chuitna Citizens
Coalition had made the following statement (copy not on
file):
This decision makes it clear that the State of Alaska
is not in the business of protecting salmon habitat
and the countless families and jobs that salmon
support throughout the state. Instead of following the
rules and protecting salmon habitat, we expect
Governor Parnell now to change the rules of the game
or change the law completely so that Alaskans are
prevented from protecting their salmon resources.
Senator Hoffman requested the department to respond to the
above statement. Mr. Menefee replied that there were
inaccuracies in the statement and that it overlooked the
protections for salmon habitat in the current process. He
pointed out that the court decision did not require the
department to change any laws, but that it did specify that
there was "some requirement for us to look at" and consider
the water reservation; it did not require the department to
adjudicate the reservation fully or finish it.
Senator Hoffman inquired how the application of the Chuitna
Citizens Coalition would be viewed under the bill. Mr.
Menefee responded that the application would qualify as
being from a "person" and that the legislation's change
would require the coalition to find a different public
entity or political subdivision to transfer the application
to because it had not been adjudicated fully yet.
Senator Hoffman queried if the bill would make it harder
for the coalition to get a permit. Mr. Menefee believed
that it would not necessarily be harder because the
application information was all there and related that ADFG
worked with Native corporations and NGOs throughout the
process. He opined that if all the data was gathered for an
application, it was likely that the coalition would be able
to get an agency to adopt the application and move forward
with it.
2:02:18 PM
Co-Chair Meyer noted that there would be more questions for
the administration, but wanted to start the public
testimony because people were in queue to speak to the
bill. He apologized to the public for the delay and
explained that the committee wanted to understand the bill
better.
MELANIE BROWN, SELF, expressed strong concerns about the
bill, particularly regarding the section that pertained to
water reservations. She shared that she was a commercial
fishing permit holder in Bristol Bay and that her family
had been fishing in the bay for five generations. She
pointed out that her family subsisted off the lands and
waters of Bristol Bay. She stated that after listening to
comments of DNR, she became especially concerned with how
the priorities were written in the bill. She shared that
the chief of operations for DNR's Division of Mining, Land
& Water "made it very clear" where the priorities of DNR
were with the following statement:
...if it is in the state's best, we can put another
priority over fish.
Ms. Brown opined that the above statement represented a
misinterpretation of the Alaska State Constitution, which
stated very clearly that the renewable resource of salmon
should be protected for Alaskans. She urged the committee
to seriously scrutinize the section of the bill that
pertained to water reservations, as well as the other
sections of the legislation.
Co-Chair Meyer observed that testimony should be limited to
two minutes and explained that there were a lot of people
signed up to testify on the bill.
PAUL FUHS, ALASKA SEA FARMS, spoke in support of HB 77. He
stated that Alaska Sea Farms had been working with DNR to
rationalize land-use regulations for shellfish,
mariculture, and farming; over the course of this process,
it had become clear that there needed to be a statutory
clarification regarding the renewal of shellfish licenses.
He explained that the reason the clarification was
important was because of the types of species that
shellfish licenses covered. He expounded that when it took
three or four years to grow an oyster and seven to nine
years to grow a geoduct, a lessee that was reaching the end
its lease would be hesitant plant more stock if its license
renewal was uncertain. He explained that the bill clarified
the biology of the animals that Alaska Sea Farms dealt
with. He pointed out that the currently, the issue caused
instability for people who wanted to invest in this
industry.
2:06:31 PM
LINDSEY BLOOM, ALASKA INDEPENDENT FISHERMEN'S MARKETING
ASSOCIATION, expressed concerns about HB 77 and suggested
amending the bill. She pointed out that there were several
measures in the legislation that took away the public's
ability to comment and testify during DNR's decision making
process. She explained that the bill would create a general
permitting system in which the commissioner would have the
discretion to issue general permits, without giving public
notice, which he/she determined were unlikely to result in
significant and irreparable harm. She furthered that the
legislation would remove the requirement of public notice
for best-interest findings. She explained that the bill
also "liberalized" the number of temporary water-use
permits and specified that they could be issued to a single
project multiple times and renewed without public notice.
She related that the legislation would change the
eligibility of a person to file an appeal or request
reconsideration with DNR and would change the law's
language so that someone had to be "substantially and
adversely impacted or affected" in order to be a
participant in those processes. She related a hypothetical
example that illustrated her concerns regarding the
difficulty of fisherman proving that they were "directly
impacted" by upstream waster use.
Ms. Bloom pointed out that the zero fiscal note did not
provide additional funds for ADFG and DNR to work with
individuals, tribes, and organizations to apply for
instream-flow reservations. She was unsure how the
administration could ensure that it would be able to deal
with the increased caseload of having to apply on behalf of
the Alaskans without additional resources. She stated that
the primary issue for fisherman was that the bill took away
their rights to protect water, fisheries interests, to be
notified by DNR on actions that might affect fisheries, and
to appeal decisions that could impact fisheries. She urged
the committee to take its time with the bill and offered
that amendments could address some of the concerns.
2:11:14 PM
LEVI HOHL, ALASKA FLY ANGLERS INC., KODIAK (via
teleconference), spoke against HB 77. He related that clean
water and healthy salmon stocks were requisite for his
Alaska-based company to be successful. He shared that the
bill removed the right for citizens to petition for water
rights and denied Alaskans a voice in managing the state's
resources.
GINA FRICCERO, SELF, KODIAK (via teleconference), expressed
strong concerns about HB 77 and stressed that it should not
be passed as it was written. She discussed her family's
long-standing history of fishing in Alaska and expressed
concerns that the legislation limited people's ability to
participate in a meaningful way. She felt that the bill
diminished DNR's process, took away citizens' ability to
ensure protection for fish and game, and removed the right
of the public, tribes, or other entities to apply for water
reservations to maintain sufficient flow for public
interests. She opined that the most concerning provisions
eliminated an individual's and organization's ability to
secure instream reservations of water, removed a mandatory
notice and comment period for preliminary best-interest
findings, and limited who could participate in the
administrative process to challenge flawed decisions.
Ms. Friccero pointed out that a corporation's goal was to
make profits, but reminded the committee that the state's
goal should be to protect Alaska's environment from being
ruined for the sake of corporate profits. She shared that
coastal communities were "once again staring down the
barrels of big guns who are willing to ruin what we have in
order to get what they want, which is more money." She
offered that the state had a responsibility to communities
to make decisions based on the viability of sustaining
resources and opined that there had never been a mine that
had not polluted the ground or water. She urged for the
consideration of fish, citizens, and animals and stressed
that the bill should not be passed as written.
JODY MALUS, SELF, BETHEL (via teleconference), spoke
against HB 77. She stated that it undermined the standards
for fish and wildlife and the ability of Alaskans to
participate in the management of their resources. She
explained that the bill eliminated an individual's or an
organization's ability to request the reservation of water
in a stream, river, or lake for the benefit of fish,
wildlife, recreation, transportation, as well as other
economic and cultural uses. She pointed out that the
legislation also removed mandatory public notice and public
comment periods for preliminary best-interest findings; it
also limited who could participate in challenging "flawed
decisions" that undermined Alaska's hunting and fishing
resources. She urged the committee to fix the bill and
uphold the rights of Alaskans to apply to DNR to reserve
water in rivers, creeks, and streams throughout the state,
including the waters of Bristol Bay. She related that it
was disturbing that the state government was taking an
increasingly lax attitude towards the actions of large
companies and their negative effects; meanwhile, some
legislators favored laws and rules that were becoming more
restrictive towards the rights of individuals.
HAROLD BHLEM, SELF, VALDEZ (via teleconference), testified
in opposition to HB 77. He opined that the bill appeared to
be "another industry power grab" and offered that there had
been too many bills of this type recently. He opined that
some of Alaska's elected and appointed officials felt only
responsible to their "cronies" or whoever appointed them.
He stated that Alaskans needed more opportunities to
preserve salmon and the unique way of life of Rural
Alaskans. He shared that the wording in the bill raised the
possibility of fast tracking a project that had
irreversible and or irremediable consequences. He urged the
committee to fix the bill and concluded that people need
more opportunities to represent themselves and their point
of view rather than fewer opportunities to do so.
2:17:50 PM
DIANN DARNALL, SELF, FAIRBANKS (via teleconference),
expressed opposition to HB 77. She related that the bill
was not in the best interest of the residents of the state,
particularly with respect to Rural Alaskan's. She offered
that bill limited input and gave too much power to the
commissioner of DNR. She discussed the use of the word
"may" in the bill regarding the commissioner's
responsibilities. She pointed out that a notice in the
newspaper would not be an adequate notice for some "bush"
communities. She offered that the legislation had too many
"maybes" and did not have enough substance. She talked
about the requirement of having to be in on the original
process in order to be eligible to appeal a decision by DNR
and pointed out that people might not have been available
at the time of the original process for legitimate reasons.
She opined that the wording change within the legislation
regarding who could appeal was unfair. She pointed out that
the bill needed more work to protect resources for all
citizens of the state and concluded that all Alaskans
should have the right to appeal or give input.
SYLVIA PANZARELLA, SELF, ANCHORAGE (via teleconference),
testified in opposition to HB 77 and opined that the
governor was continuing to take the rights of the public
away by eliminating their ability to speak against the
Pebble Mine and the Pebble Partnership. She explained that
the Pebble Mine's tailings dam would be large enough to
cover downtown Seattle and encompass the Space Needle. She
furthered that the mine would require the monitoring of 1
billion gallons of acid tailings water in perpetuity and
pointed out that even nuclear waste had a half-life. She
applauded people who were not "yes men and yes women" to
the governor or the large corporations that were taking
over Alaska's oil, fish, and state. She warned against
taking away the people's right to speak.
TIM TROLL, EXECUTIVE DIRECTOR, BRISTOL BAY HERITAGE LAND
TRUST, ANCHORAGE (via teleconference), expressed concerns
about HB 77 and encouraged the committee to take its time
with the legislation. He pointed out that over the last 5
years, he had help raise over $1 million to help fund
instream-flow reservations for fish in his capacity as
executive director. He offered that it was ironic that much
of the trust's efforts were targeted for retroactive
cancellation by the State of Alaska, which had encouraged
them to do the work in the first place. He urged the
committee not to rush to approve the bill, but to pause and
make an effort to understand Alaskan law. He discussed the
benefit of private instream-flow reservations to the state.
He explained that the land trust's work was a perfect
example of a public-private partnership. He acknowledged
that ADFG followed most of the instream flow reservations,
but could not be everywhere; the trust assisted in this
effort by raising more than $1 million and collecting the
necessary hydrologic data that ADFG did not have the
resources to collect. He pointed out that the trust did
this at no cost to ADFG.
Mr. Troll opined that if it was the policy of Alaska not to
sacrifice one resource for another, then private instream-
flow reservations could help accomplish that. He wondered
how it could be determined whether fish and mining could
coexist in a particular place and explained that fish and
mines both needed water. He expounded that if the mine took
too much water, the fish died. He pondered how the amount
of water that fish needed to live was determined and
explained that instream-flow reservations required 5 years
of data collection that would be used to calculate how much
water must be left in a lake or river to support fish. He
furthered that an instream-flow reservation let DNR and the
mining permit applicant design a mine according to how much
water would be available. He pointed out that a water
reservation would not necessarily stop the mine and
explained that a mining company could ask DNR to vacate or
modify the water reservation; if a greater public interest
favored the mine, fish could be sacrificed, or if a greater
public interest favored fish, the company would make other
plans. He offered that all a private instream-flow
reservation really did was provide private applicants with
standing in the adjudication process to ensure that the
public interest in fish was represented, that the
commissioner was considering the best available data, and
that if there was choice between fish and another resource,
it would not be made arbitrarily.
2:23:57 PM
BRIAN KRAFT, VICE-PRESIDENT, KATMAI SERVICE PROVIDERS,
ANCHORAGE (via teleconference), testified that HB 77 needed
changes and opined that it was an opportunity for the
governor to push forward the agenda of the mining industry.
He offered that the bill was not a streamlining of the
process to help get permits through quicker and opined that
the backlog was due to a lack of personnel. He discussed a
Fraser Institute annual survey of mining companies that was
sent to over 4100 exploration, development, and other
mining related companies worldwide. He reported that the
survey reflected responses from 742 of those companies and
that the data was sufficient to evaluate 96 jurisdictions.
He explained that the survey's responses were tallied and
that it ranked provinces, states, and countries according
to the extent that the public policy factors encouraged or
discouraged investment; Alaska was in the top 15 worldwide
in terms of being favorable through its permitting system
and other factors as being open for business. He related
that the bill took away the public's opportunity to
participate at a level where it could give input and have
the state consider the public's best interest. He stated
that it was essential for business owners who depended on
water quality to have the opportunity to be notified and
comment on potential water uses that could have an effect
on their industries. He concluded that the committee should
take a close look at HB 77 and be very cautious before
passing it.
SAM SNYDER, SELF, ANCHORAGE (via teleconference), expressed
opposition to HB 77. He related that he was raised in the
desert where water and fish habitat were scarce and stated
that he was an avid sportsman who had been involved in the
community and industry nationwide. He pointed out that he
also had a doctorate in environmental studies with a focus
on water and fisheries related issues. He observed that
Alaska was defined, in large part, by its world class
fisheries. He furthered that anglers from around the world
came to Alaska and envied the state of its fisheries. He
related that Alaska's residents took pride in not only the
robust nature of the state's fisheries, but also in their
ability to have a voice in the management process. He
offered that while other salmon fisheries had been
declining around the world, Alaska remained "above them
all," in part, because of the existing protections and the
ability of the community to engage in the process. He
pointed out that the legislation not only put healthy
salmon runs and fisheries at risk, but also removed the
ability of Alaskan citizens, who were stakeholders that
were dependent on healthy rivers and habitat, to have a
voice in the management and conservation of those
resources.
Mr. Snyder opined that the bill represented an undercutting
of the democratic ideals of the U.S. and a point of pride
for Alaskans, whose constitution mandated the conservation
of fish and habitat for the best interest of state and its
citizens. He pointed out that Section 40 of the bill
removed the ability of individuals and groups to apply for
an instream-flow reservations, which would be a blow to
interests that depended on fisheries; moreover, it put the
protection of fish and habitat at risk. He observed that
DNR had stated that very morning that if it was in the
state's best interest, other priorities could be placed
over fish. He wondered how the state's best interest was
defined if it was not for its citizens and issues like
fisheries. He furthered that Section 40 also gave the
commissioner of DNR "unwarranted" authority to grant
temporary water-use permits at his/her own discretion as
often as needed, as well as general use permits without
necessarily having public input; additionally it reduced
the public's access to the administrative appeal processes
by changing the standard to "substantially and adversely
affected." He was unsure how substantially and adversely
affected" would be defined and defended. He wondered why
the system needed streamlining if it was already robust.
2:29:52 PM
MELISSA HEUER, SELF, ANCHORAGE (via teleconference),
expressed strong concerns with HB 77, especially regarding
the sections of the bill that limited the rights of
individuals. She offered that Sections 4, 40, and 41
removed the rights of individuals and organizations to
apply for and appeal water rights. She pointed out that it
was a constitutional right of Alaskans to be able to
protect their fishing resources and opined that the bill
stripped the state's citizens of their ability to
participate in the process, which was unacceptable. She
offered that healthy water ways were an invaluable resource
to a number of individuals and industries in Alaska. She
did not support any language that removed the individual
rights of Alaskans and placed those rights in the hands of
the commissioner of DNR with little or no say from local
residents. She pointed out that Alaska ranked in the top
third of states in terms of its relaxed policies for mining
development. She opined that Alaska's permitting process
needed more protection for the public and not less. She
requested that the bill be held in committee until its
long-term implications on the permitting system and the
future health of Alaska's waterways could be determined.
KATHERINE HUBER, SELF, ANCHORAGE (via teleconference),
voiced concern regarding HB 77. She related that multiple
portions of the bill would limit the rights of Alaskans to
be involved in resource-use decisions, including those that
impacted salmon resources and fisheries. She offered that
the public needed more opportunities to be involved in
decisions related to the state's resources. She pointed out
that Section 40 of the bill eliminated individuals' and
organizations' ability to request that water remain in a
stream, river, or lake for the benefit of fish, wildlife,
recreations, and/or transportation. She furthered that
Section 42 of the bill gave the commissioner of DNR the
ability to issue temporary water-use authorizations without
public comments. She opined that the legislation's proposed
changes would lessen the public's ability to take part in
managing its resources. She pointed out that she relied on
the state's fish and game resources, particularly on salmon
fisheries and explained that she lived in Alaska because of
the opportunities provided by the land and its abundant
natural resources.
Ms. Huber stated that the Alaska State Constitution and
ADFG regulations mandated the sustainability of Alaska's
resources. She asked the committee to consider Alaska's
Policy for the Management of Sustainable Salmon Fisheries,
which stated that "the Board of Fisheries and ADFG
recognizes that Alaska's salmon fisheries are healthy and
sustainable largely because of abundant pristine habitat
and the application of sound, precautionary conservation-
management practices." She opined that the regulations
clearly stated that public support and involvement for
sustained use and protection of salmon resources should be
sought and encouraged. She urged the committee to fix the
bill to include more public oversight and involvement.
Co-Chair Kelly addressed comments of testifiers that were
made in reference to statements by DNR during the previous
committee meeting. He explained that testifiers had claimed
that DNR had said that the state would prioritize something
over fish if it was in the state's best interest. He
pointed out that the discussion had been under the context
of whether the state would prioritize eight fish over a
project that might be in the best interest of the State of
Alaska. He opined that the headlines would read that DNR
would prioritize projects over fish, but offered that this
was not true.
2:35:01 PM
DOROTHY B. LARSON, TRIBAL ADMINISTRATOR, CURYUNG TRIBAL
COUNCIL, DILLINGHAM (via teleconference), testified against
HB 77. She expressed the council's desire to be able to
protect its wildlife and renewable resources for
subsistence, commercial, and residential use, pointed out
that it took that responsibility very seriously. She stated
that habitat protection was a means for people to protect
their resources and opined that it would be a fatal flaw to
eliminate tribal governments' right and authority to apply
for water reservations. She explained that the tribe had
become increasingly critical for all kinds of government
services and that it could continue to assist the state in
growing, prospering, and serving the public uses of
Alaska's resources. Additional, the council was concerned
that the bill seemed to take away tribal governments'
ability to work with the state government. She offered that
tribal governments had already been limited in their
ability to work with the government, but that the
legislation completely stripped that ability away from the
public. She expressed concerns with the "government running
amuck," especially when it related to DNR and the
protection of the state's resources.
BILLY MAINES, SELF, DILLINGHAM (via teleconference), urged
opposition to HB 77 and offered that it was not
constitutional. He discussed Article 8 of the Alaska State
Constitution and opined that the legislation went against
that article. He stated that the legislation also took away
his right as an Alaskan citizen to petition for water
rights and that it would not even allow him to comment on
the issues that were being proposed in the bill.
DAN DUNAWAY, SELF, DILLINGHAM (via teleconference), spoke
against HB 77. He offered that one of the great
"underpinnings" of forming the State of Alaska was the
demand for citizen participation in the management of their
resources and saw the bill as disenfranchising citizens
from the process. He discussed previous comments that
stated that Alaska's permitting was different from other
states and wondered when being different had ever bothered
Alaska. He supported the comments of Tim Troll. He recalled
a situation where, through working as an ADFG biologist,
water reservations had needed to be worked out, but that
the state had been unable to do so in this particular case.
He explained that the Nature Conservancy had stepped in to
help with the situation, the water reservations were worked
out, and the state had finished the process; he offered
this was an excellent example of cooperation that had saved
the state a lot of money. He acknowledged that there were
some parts of the legislation that cleaned up the language
and made it more specific, which he supported. He added
that he did not want to see a reduction in public
participation or information and offered that Senator
Hoffman was correct that requiring a local group to find a
government agency to work with was another obstacle to a
group being able to participate.
2:41:17 PM
TOM TILDEN, SELF, DILLINGHAM (via teleconference),
testified against HB 77 and believed that it sacrificed
salmon to other interests in the state. He remarked on the
previous comments of DNR that other resources might be
prioritized over salmon for the good of the state and
offered that it was a "bad comment"; furthermore, the same
statement had probably been made in California, Oregon, and
Washington. He discussed how California, Oregon, and
Washington had prioritized timber, mining, and hydro
interests over salmon and shared that there were not many
fish left in those states. He pointed out that there were
still significant fish populations in Alaska that needed to
be protected and offered that it was in the best interest
of the state to protect the renewable resources that it
had. He observed that if you looked at the history of the
Alaska before the oil, gas, and mining companies had
arrived, it had been salmon that supported the state. He
opined that it would be salmon that again supported the
state after all the oil and mining was done because
tourists would come to the state to catch salmon and see
Alaska Natives live a subsistence lifestyle. He urged the
protection of salmon and hoped that the governor would not
sacrifice one resource over another.
MIKE BYERLY, SELF, HOMER (via teleconference), voiced
strong opposition to HB 77. He opined that the only reason
the bill existed was the Pebble Mine and other similar
projects. He offered that you did not "throw the baby out
with the bathwater" if you did not like the way a policy
worked. He opined that DNR routinely processed water-use
application for mining, oil, and gas development, but
rarely processed the instream-flow applications that were
needed to keep water in the rivers for fish. He shared that
salmon needed enough water to reach their spawning grounds
upstream. He explained that often spawning grounds were
nothing more than a trickle of water, but that in
aggregate, those trickles over an entire watershed could
produce a very large run. He relayed that the state was
founded on fish and that subsistence fishing continued to
play a large role in the fabric of Alaska. He pointed out
that Alaska's commercial fishing industry was alive and
thriving due to its habitat; most of the state's streams
remained un-dammed and its watersheds were mostly intact.
Mr. Byerly offered that the instream-flow reservations were
essential to ensure that the state left enough water in its
streams for the basic needs of fish. He asserted that the
governor had stated more than once that he would never
trade one resource for another. He stated that if the water
was left in the rivers and the watersheds kept intact,
salmon would continue to return and offered that it was the
"best" and "cheapest" investment the state could make. He
warned against trading fish and the jobs that were
associated with them for a one-time development. He urged
the committee not to pass the bill in any form.
2:46:14 PM
JESSICA TENHOFF, SELF, HOMER (via teleconference), spoke in
opposition to HB 77 and noted that she was against anything
that diminished the ability of citizens to give input on
issues that affected their sustainable life. She relayed
that the legislation altered her ability to affect change
and pointed out that a representative government's first
responsibility should be to protect the right of citizen
participation. She opined that if $10 billion could be
"given away" to oil companies for tax incentives, then
someone else was "owning" the government. She felt that her
voice was being continually diminished and asserted that it
was the legislature's responsibility to strengthen the
citizens' ability to guide their own future.
LEE TENHOFF, SELF, HOMER (via teleconference), expressed
opposition to HB 77 and related that the bill gave too much
power to an elected official. He discussed the bill's use
of the wording "best interest of the state" and opined that
the term was getting away from the "public interest." He
expressed a desire to have his voice heard.
2:48:49 PM
HAL SHEPHERD, CENTER FOR WATER ADVOCACY, CITY OF ELIM, AND
NORTON BAY INTER-TRIBAL WATERSHED COUNCIL, KENAI (via
teleconference), spoke in opposition to HB 77. He stated
that the Norton Bay Native communities and tribal
government were concerned that tribal governments would be
excluded from the processes of protecting and managing
instream-flow reservations as far the application process
was concerned. He pointed out that the bill left out tribal
governments, many of which had already submitted
applications for instream flows; others were currently in
the process of collecting the five years of data required
to apply for an instream flow reservation. He pointed out
that pending applications of these tribal governments would
be "dropped" by the bill. He relayed that the bill would
also eliminate important tribal environmental knowledge,
contemporary data, and a tribe's experience with area. He
shared that he was currently working with tribes to collect
data for an instream-flow reservation. He requested the
committee to oppose the bill in its entirety.
MICHELE MARTIN, SELF, KENAI (via teleconference), spoke in
opposition to HB 77 in its current form. She thought that
the bill, as written, would represent a fast track for
corporations that were largely based out-of-state, which
wanted to use the resources for their own financial gain.
She believed that the money these corporations earned would
not go back into the state's economy. She related that the
state needed water in its streams for fish and that it was
in the state constitution to do so. She discussed the
importance of the fish to the local economy, way of life,
and future sustainability of the Alaska. She pointed out
that other states were spending large amounts of money to
rebuild fisheries that had been destroyed by loss of
habitat and observed that Alaska could learn from the past
and not make the same mistake. She stated that it took a
significant amount of money and resources to rebuild
fisheries after they had been hampered by habitat
degradation and offered that the runs almost never came
back fully after that had occurred.
2:54:19 PM
NICK CASSARA, SELF, MAT-SU (via teleconference), spoke
against HB 77. He discussed his 30 years of work history
protecting and enhancing the fish and wildlife populations
with ADFG. He recalled that Commissioner Sullivan had
indicated that no other state currently allowed individuals
to file for water rights and offered that Alaska's laws and
regulations were better than those of the other states. He
wondered if there was any state in the country that someone
would rather be working in than Alaska. He relayed that the
rest of the country was trying undo damage that had been
done to their watersheds and fisheries, and queried why
Alaska would want to be more like the other 49 states. He
quoted from Article 8, Section 3 of the Alaska State
Constitution as follows:
Wherever occurring in their natural state, fish,
wildlife, and waters are reserved to the people for
common use.
Mr. Cassara opined that the state's constitution clearly
set out the rights of the people and communicated those
rights to water. He urged the committee not to make
shortsighted changes to the state's regulations.
2:56:11 PM
JIM COLVER, SELF, MAT-SU (via teleconference), stated that
HB 77 needed to be amended. He pointed out that DNR was the
platting authority for unorganized areas in Alaska and
stated that Section 28 of the bill streamlined the process
for the vacation of property lines; he offered that this
section could use a lot more streamlining. He relayed that
his firm was working on a plat for a school and village in
Western Alaska and that DNR was the platting authority. He
explained that the plat would vacate some property lines
and a portion of several streets to accommodate a village
office and a school septic system. He pointed out that the
petitioners owned most of the surrounding land, the plat
had been submitted for 2 months, and that after repeated
requests, there was still no confirmed schedule for a
hearing and decision on the right-of-way vacation. He
pointed it was expected that it would be another 20 weeks
before a decision was finalized, which may be too late to
conduct field work in the upcoming summer.
Mr. Colver shared that in municipalities, the vacation of a
street or easement was a straightforward process that did
not exceed 75 days for approval, including a 45-day period
until the plat is heard and 30-period that was designated
in statute. He offered that Section 28 needed to be amended
to streamline the process of vacating right-of-ways and
easements to be similar to the process that municipalities
used. He pointed out that the problem was that DNR handled
street vacations similarly to section-line vacations, which
took a lot more agency coordination. He offered that he
could help on an amendment to the bill and that he had just
re-written the Mat-Su Borough platting code. He concluded
that the section of law that Section 28 dealt with could be
addressed in the bill.
DAVE ATCHESON, SELF, KENAI (via teleconference), testified
that HB 77 needed to be abandoned or rewritten. He pointed
out that Alaska was proud of its commercial and sport
fishing, but warned that the same thing that happened in
the Lower-48 could happen in Alaska. He opined that in his
30 years of living in the state, he had seen the beginnings
of what happened in the Lower-48 in Alaska. He opined that
HB 77 was one factor that was leading Alaska towards the
direction of the Lower-48's fisheries. He stated that the
bill eliminated the ability for entities to obtain
instream-flow reservations, which allowed for the
sustainability of a variety of activities, while also
protecting fish and wildlife habitat. He noted that
removing the mandatory notice and comment period for best
interest filings was concerning and offered that it was not
good policy or government to exclude the public from this
process. He opined that the reason the state had great
fisheries was their inaccessibility, and expressed that the
state needed to be careful with its fisheries.
NELLI WILLIAMS, TROUT UNLIMITED, ANCHORAGE (via
teleconference), spoke against HB 77. She related that the
legislation undermined sound management, salmon and trout
habitat, and inhibited or removed the public's ability to
help shape land-management decisions. She pointed out that
Trout Unlimited had 15 staff and over 800 members in Alaska
and that it worked to protect fish or fix rivers where
people fished. She offered that the legislation would harm
the fish and rivers that Trout Unlimited's members depended
on to run businesses, for recreation, and to put food on
the table. She pointed out that the bill would eliminate
the ability of an individual Alaskan, a business, or an
organization to keep water in a stream for fish habitat,
economic purposes, and cultural reasons. She opined that
the legislation would put every day Alaskans at a
disadvantage to industry.
Ms. Williams shared that Trout Unlimited had spent tens of
thousands of dollars over the past several years to
establish instream-flow reservations and that those efforts
would be nulled by the bill. She offered that Alaska's
permitting process already helped pave the way for industry
in Alaska and that the bill took steps to make the process
even easier at the expense of the public. She reported that
the Fraser Institute ranked Alaska in the top third among
states and countries with the most relaxed policies for
mineral development. She asserted that several DNR
employees had publicly stated that the Alaska permitting
system was "basically a cake walk" and was set up to say
yes to resource development projects. She concluded that
the legislation would cut out public involvement in
decisions that affected public resource management and
would make it harder for Alaskans to voice concerns about a
project in a meaningful way.
3:04:48 PM
RACHAEL PETRO, PRESIDENT & CEO, ALASKA STATE CHAMBER OF
COMMERCE, ANCHORAGE (via teleconference), spoke in support
of provisions within HB 77. She related that the chamber's
primary mission was to advocate for polices that improved
Alaska's business climate and pointed out that efficient,
predictable, and common sense regulations and permitting
processes were integral to creating an environment in which
businesses could succeed. She stated that the chamber's
members had expressed strong support for Alaska's policies
and regulations that guided the development of Alaska's
natural resources while still protecting the environment.
She pointed out that the chamber had also advocated for
streamlining the regulations and policies in which
bureaucratic and business efficiencies could be gained. She
referenced the Fraser Institute's study that had been
addressed by earlier testifiers and related that
internationally, Alaska ranked just below Kazakhstan and
just above Columbia regarding uncertainty with
environmental regulations; furthermore, with regard to
regulation duplication and inconsistencies, Alaska ranked
below Honduras and above Niger. She concluded that the bill
was a common sense piece of legislation that should receive
broad support.
3:07:12 PM
KATHERINE CARSCALLEN, SELF, DILLINGHAM (via
teleconference), testified against HB 77. She stated that
Section 40 of the bill took away the ability of a person,
tribal government, city, or other group to apply for
instream-flow reservations. She pointed out that Alaska had
sustainable fisheries and management that were the envy of
the rest of the country, which were driven by public
participation and a precautionary approach to management.
She stated that the regulations that applied to upstream of
the fisheries were lacking and pointed out that there were
already no automatic instream-flow requirements for salmon.
She opined that the burden of protecting fish was already
on the public and that removing the right of individuals to
apply for instream-flow reservations was a move in the
wrong direction. She pointed out that it was easy to see
how trading fish "here or there" or a few thousand acres of
wetlands for the greater good of Alaska could be justified
by the state, which was a reality Bristol Bay was being
faced with. She was not willing to give up her personal
rights to keep tabs on water applications, apply for
instream flow-reservations, and contest decisions by DNR.
Ms. Carscallen concluded that as Bristol Bay was being
faced with new development prospects, the people were
seeing their priorities diverge from those of the state and
offered that Alaskans needed to keep their ability to look
out for the best long-term interests of their region and
state.
DWIGHT GURLEY, SELF, ANCHORAGE (via teleconference),
testified against HB 77. He offered that part of the intent
of the bill was to exclude an individual's application for
instream-flow reservations. He thought that the state
needed more participation from individuals who had vested
interests that were smaller than the corporate interests.
He pointed out that Alaska's pristine habitat was a
treasure that relied on abundant, clean water and offered
that building a fishery that would be as sustainable as the
ones that Alaska currently had would be a complex and
gargantuan project.
3:11:16 PM
KRISTIN CARPENTER, EXECUTIVE DIRECTOR, COPPER RIVER
WATERSHED PROJECT, CORDOVA (via teleconference), testified
against HB 77 in its current form. She pointed out that the
Copper River region supported commercial, subsistence, and
sport salmon fishing economies and discussed her
experiences on the Cordova City Council. She loved that
Alaska had a history of keeping decision making accessible
to citizens. She felt the bill had the potential to injure
fisheries resources by severely limiting public
participation and pointed out that the fishing sector of
the state's economy employed more people than any other
sector; it did not generate more revenue, but employed more
people. She related that the Copper River Watershed Project
had submitted an application to maintain enough water in
Eyak Lake for salmon and pointed out that the lake
generated over $1 million per year in Sockeye and Coho ex-
vessel seafood sales. She offered that the bill was
intended to benefit certain projects, but that it would
have significant potential for unintended consequences. She
concluded that the bill needed more analysis.
JOY HUNTINGTON, TANANA CHIEFS CONFERENCE, FAIRBANKS (via
teleconference), supported adding an amendment to Section
40 of HB 77 that included federally recognized tribes
and/or tribal organizations. She appreciated Commissioner
Sullivan's efforts to work with tribal entities and
indicated that he was very responsive to correspondences.
She pointed out that water reservations were not the only
way to protect fish and game, but that the matter involved
local government inclusion. She relayed that in over half
of Alaska's communities, the tribe was the only local
government and public agency; they provided healthcare,
public safety, family services, and helped with certain
judicial aspects. She stated that excluding tribal
governments left many communities out of the process and
offered that tribes often had more capacity than cities.
She relayed that tribes were not inherently anti-
development and opined that allowing tribes to submit
applications did not represent an anti-development effort.
She concluded that the state should recognize tribes as
local governing bodies and trust the local process;
furthermore, including federally recognized tribes and/or
tribal organizations was logical.
3:17:04 PM
ERIC NASSUK, NATIVE VILLAGE OF KOYUK, KOYUK (via
teleconference), expressed opposition to HB 77 and related
that it concerned the village. He relayed the importance of
subsistence and commercial fishing around Koyuk and offered
that the bill would negatively affect the village's efforts
to continue its lifestyle. He stated that Koyuk was opposed
to the bill because instream water-right issues occurred at
the headwaters where the fish spawned. He concluded that
the village lived a lifestyle that reaped benefits for
future generations and that the legislation did not reflect
that.
RONALD BARNES, INDIGENOUS PEOPLES & NATIONS COALITION,
DILLINGHAM (via teleconference), testified in opposition to
HB 77. He discussed a recent United Nations reports by the
Special Rapporteur on the Rights of Indigenous Peoples, who
had recently visited Alaska. He stated that the special
rapporteur had asserted in his report that the indigenous
peoples of Alaska had not consented to the creation of a
federal state, which was a violation of an indigenous
people's right to self-determination. He relayed that the
report had also stated that the Alaska Native Claims
Settlement Act was in question, which was supported by an
earlier report by Erica-Irene Daes. He offered that the
1867 Treaty of Cession did not provide ownership or
jurisdiction to the Unites States of America. He opined
that HB 77 and the history of law and legislation that
created the State of Alaska were in violation of the
constitution of the United States. He pointed out that,
based on the constitution, adopting or rendering
legislation that libeled those who held title and
jurisdiction could result in liabilities for public
officials or enforcers of the violations in the form of
physical and economic damages.
RONNI BURNETT, SELF, ANCHORAGE (via teleconference),
testified in opposition to HB 77. He offered that the bill
stripped Alaskans of the rights for clean water and healthy
fisheries. He related that the Chuitna Citizens Coalition's
intention in filing for the instream-flow reservation for
Middle Creek was to ensure that those fish always had
enough water to grow and return to the ocean. He opined
that PacRim Coal had no reason to believe that the fish
were needed and related the importance of the Chuit River
watershed to a nearby village. He believed that people
should have the right to be heard regarding situations that
concerned thousands of people and offered that the bill
should be scrapped. He opined that the governor was using
the legislation to fight against the Chuitna Citizens
Coalition's instream flow reservation.
3:23:49 PM
NIKOS PASTOS, SELF, SEWARD (via teleconference), expressed
opposition to HB 77 and offered that it violated humans'
right to water; specifically, it took away the right to
public participation by individuals, communities, and
tribal governments or tribal organizations. He offered that
the legislation was not a good way to create a healthy
democracy and related that water was a resource that must
be shared by everyone. He opined that limiting public
participation and review, as well as alienating half of the
communities in Alaska was not a good way to share water. He
pointed out that removing instream-flow reservations made
it much easier for development projects to be streamlined
or hurried, and opined that federally recognized tribal
governments had every right reserved under federal
statutes, especially regarding the Clean Water Act. He
stated that it was a problem that the state did not want to
share water with half of the communities in Alaska. He
pointed out that federal agencies had duties to tribal
communities to uphold water quality and quantity standards.
He opined that the bill was bad legislation.
ANDY ROGERS, SELF, ANCHORAGE (via teleconference),
testified in support of the HB 77. He was pleased that DNR
was looking for efficiencies and ways to improve and
streamline its processes. He agreed with the comments of an
earlier testify that had discussed the challenges in the
platting process and stated that there was a lot
frustration and delay associated with some of the current
regulations.
JAMES SULLIVAN, SOUTHEAST ALASKA CONSERVATION COUNCIL,
expressed the council's opposition to HB 77. He offered
that the legislation had been presented as a simple
streamlining bill that was intended to help Alaska with its
permitting problems, but opined that this was not the case.
He offered that the bill presented a very important policy
question to the legislature regarding value. He asserted
that the issue was whether the legislature valued the
rights and lifestyles of individuals within Alaska and
whether those who lived a subsistence lifestyle had the
right to apply for an instream-flow reservation. He
acknowledged the value of water uses for the activities of
different corporations, but asked the legislature to take
time to recognize the unique value that Alaskan Native
organizations and tribes had. He opined that that Alaskan
Native organizations and tribes should have the opportunity
to apply for instream-flow reservations to enable them to
live their lifestyle.
3:30:16 PM
JENNIFER HANLON, ENVIRONMENTAL SPECIALIST, CENTRAL COUNCIL
OF THE TLINGIT & HAIDA INDIAN TRIBES OF ALASKA, expressed
the council's opposition to HB 77. She explained that the
bill removed that council's ability to apply for instream-
flow reservations and would affect its traditional
subsistence economies. She stated that many tribal citizens
depended on water rights for commercial fisheries and other
industries that relied on sufficient amounts of water. She
pointed out that the legislation would also limit tribal
governments' ability to participate in the decision making
process regarding issues that affected the habitat of
traditional hunting and fishing resources. She reported
that DNR had asserted that tribes would be able to solicit
different agencies to apply for water rights on their
behalf, but expressed concerns regarding assurances that
state agencies would properly represent tribal interests.
She felt that although there were currently no instream-
flow reservations for tribes in Southeast Alaska, the
legislation would affect the council's ability to apply for
water rights in the future. She expressed concerns that the
bill would make it more difficult for tribes to be notified
and comment on development projects. She stated that
Tlingit and Haida traditional values included environmental
stewardship and consideration for how actions affected
future generations. She continued that given DNR's removal
of "conservation in future generations" from its mission
statement, there were concerns whether its threshold of
significant and irreparable harm would be similar to that
of the tribes.
RICK HALFORD, SELF, testified against HB 77. He pointed out
that the state's constitution was clear that, other than
public water supply, the first priority of water use was
for fish and wildlife, and opined that DNR had been making
the issue seem smaller than it really was. He relayed that
Alaska had 23 years of history of private instream-flow
applications and that millions of dollars had been spent
based on those applications, most of which were done with
the help of ADFG and DNR. He pointed out that the system
had been working without problems and that the
administration had not adjudicated any of "those." He added
that the administration had the ability to say no and
stated that tribal groups would go to the federal
government for help if they were unable to participate in
the process. He pointed out that the federal government
would still be able to apply for instream-flow reservations
and that involving them would bring back other arguments
that were unnecessary to get into. He observed that
although the water right unperfected was not a property
right, the priority of its application date may be a
property right under new case law; there was a priority for
adjudication based on the date of the application. He
thought that a retroactive repeal after hundreds of
thousands of dollars had been spent would end up in court
and offered that the repeal was not necessary.
Mr. Halford related an additional concern that the bill
changed the standard for standing, appeal, and notification
within the agency; however, the standard was still the same
under the court system. He expounded that an individual
could not appeal to DNR for a decision that they felt
aggrieved by, but that the standard in the court system was
still "aggrieved"; therefore, an individual could go
directly through the court system instead of DNR. He
explained that the court system wanted someone to use the
administrative process first in order to build a record and
that the bill only passed a convenience to DNR at the
expense of the court system and court cases; furthermore,
if the rule was being changed, there would need to a court
rule change. He added that the ultimate rule would be the
court's determination and opined that the bill would cause
problems with the court system and the state system in
general.
Mr. Halford stated that the notice provision for the
disposal of land or an interest in land, in which water was
included, was a clear constitutional requirement that did
not depend on statute. He opined that trying to avoid that
part of the constitution was a fallacy. He offered that
some of bill's changes to land disposal and other
clarifications made the system better, but that they were
combined with aspects that changed balances that had taken
a long time to formulate and were not a problem. He offered
that the bill should be sent to a subcommittee for further
study and opined that there was no emergency. He stated
that the land disposal, auction, and survey questions were
much simpler and could be worked out; however, legal
questions should not be worked out in a bill that had never
been in either the House or Senate Judiciary Committee and
which had been given to the committee in the last ten days
of session.
3:39:27 PM
VERNER WILSON, SELF, DILLINGHAM (via teleconference),
expressed disappointment that there was only a one-day
notice on public testimony for HB 77 and stated that the
bill should not be passed. He believed that DNR did not
provide the public proper notice regarding public hearings
on the Bristol Bay Area Plan and opined that it was a shame
that he trusted interests in the Lower-48 to listen to his
concerns more than fellow Alaskans. He stated that the
legislation should not be rushed and that it invited
federal intervention on important Alaskan issues. He
offered that the bill was not needed and believed that it
was unconstitutional. He urged the committee not to shut
the public out of important issues and stated that people
should have the right to speak up and petition the
government to protect the great salmon fishery in Bristol
Bay and the clean water thousands of people depended on.
KIM WILLIAMS, SELF, DILLINGHAM (via teleconference),
testified in opposition to HB 77 in its current form and
suggested making amendments to the bill. She discussed
earlier comments by the administration that mentioned a bi-
partisan effort across the country to serve the public
better, but offered that the legislation affected that
effort. She recalled serving on the Curyung Tribal Council
and pointed out that the legislation would impact her
tribe. She stated that DNR and ADFG had not sat down with
her tribe in a bi-partisan effort to address what the tribe
saw as critical to maintain water in streams for salmon,
nor did they consult the tribe regarding the drafting of
the bill. She relayed that pending Curyung Tribal Council
applications would be impacted by Section 40 of the
legislation and pointed out that the council had filed for
instream-flow reservations on the Nushagak River very
selectively; the council had looked at the Koktuli,
Mulchatna, and Stuyahok rivers because they had King
Salmon. She offered that the legislation went against the
common sense of people in Rural Alaska and stated that it
impacted the temporary-use water permits that extractive
industries needed for mineral development in Bristol Bay.
She added that the streams that had water, salmon, and
wildlife would be impacted because the bill would take away
her tribe's ability to file for instream-flow reservations.
She requested the committee to add an amendment that
allowed tribal governments to hold standing so that they
could protect salmon and subsistence resources into the
future.
3:43:42 PM
JENNIFER HARRISON, EXECUTIVE DIRECTOR, CHICKALOON NATIVE
VILLAGE, DILLINGHAM (via teleconference), opposed HB 77 in
its current form, but supported adding amendments that
added federally recognized tribes or tribal entities to the
list of government agencies. She requested the committee to
take action to protect salmon habitat and not destroy
existing salmon protections. She relayed that the village
had relied on plentiful Moose Creek salmon for centuries,
but stated that since the 1920s, coal mines, railroads, and
industrialization had created several waterfalls, including
one impassible fall that limited salmon to the lower three
miles of the creek. She reported that between 2005 and
2007, the village had been working with U.S. Fish and
Wildlife Service, the National Atmospheric and Oceanic
Administration (NOAA), and ConocoPhillips to realign Moose
creek to its historic, pre-mining location by bypassing the
impassible waterfall. She relayed that immediately salmon
had been photographed swimming upstream to habitats that
had been unutilized for many generations.
Ms. Harrison stated that in 2007, Chickaloon Village had
hired the U.S. Geological Survey (USGS) to gauge Moose
Creek's stream flow in an effort to collect the necessary
data for an application. She stated that with funding
support from USGS, the U.S. Fish and Wildlife Service,
ADFG, and the Bureau of Indian Affairs the gauge data had
been collected. She continued that in 2009, the village had
submitted an application for an instream-flow reservation
to ensure that there would be enough water for salmon. She
reported that the village and its partners had spent nearly
$200,000 compiling the mandatory data and submitting the
application, but that the passage of the bill would strip
away the village's efforts to restore and protect the
salmon of Moose Creek. She pointed out that the village had
taken on the responsibility of the restoring the creek when
no one else would. She discussed the numerous threats
globally to salmon and offered that protecting instream
flows was one way Alaskan citizens could help salmon. She
concluded that the bill would take away the existing rights
of Alaskan citizens to protect instream flows and requested
the committee to fix the language in order maintain the
current levels of protection for fish habitat.
GAYLA WOODS, SELF, DILLINGHAM (via teleconference),
expressed opposition to HB 77. She stressed the importance
of giving the residents of Alaska a voice.
3:47:30 PM
AT EASE
3:49:32 PM
RECONVENED
3:50:25 PM
Co-Chair Meyer CLOSED public testimony.
Senator Olson noted that there were a lot more people
opposed to the bill than for it during the public testimony
and expressed concerns regarding the legislation. He
offered that the bill could be assigned to a subcommittee
in order to work on it and address concerns that were
raised by Alaskans during public testimony.
Co-Chair Meyer noted that a subcommittee referral could be
an option, but that he wanted to give the sponsor of the
bill a chance to defend, discuss, and elaborate on the
issues that had been raised.
Senator Olson pointed out that it was a sensitive issue
that was engendering a lot of concerns and that there had
been a lot of testimony against the bill. He added that he
would not necessarily want to be on the subcommittee, but
wanted it to be known as an option.
CSHB 77(RES) was HEARD and HELD in committee for further
consideration.
SB 18 was SCHEDULED but not HEARD.
ADJOURNMENT
3:52:24 PM
The meeting was adjourned at 3:52 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 77 BBNA pg1.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 BBNA pg2.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Constitutional Convention Proposal.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 FW Please oppose Schaad.msg |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition - Johnson.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition Letter Aulukestai.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition Letter Packet 1.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition Letter Packet 2.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition Letter Packet 3.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition Letter Packet 4.pdf |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| HB 77 Opposition - Parr.msg |
SFIN 4/3/2013 1:30:00 PM |
HB 77 |
| SB088-DHSS-HCMS-4-1-13.pdf |
SFIN 4/3/2013 1:30:00 PM |
SB 88 |
| SB088-DOR-TRS-04-01-13.pdf |
SFIN 4/3/2013 1:30:00 PM |
SB 88 |
| SB088-DOA-DAS-4-2-13.pdf |
SFIN 4/3/2013 1:30:00 PM |
SB 88 |