Legislature(2001 - 2002)
04/12/2002 03:40 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 420(title am)-REPEAL SUNSET FOR TEMP WATER USE PERMITS
CSHB 421(RES)(title am)-WATER USE ACT PROCEDURES & RECORDS
CHAIRMAN TORGERSON announced that HB 421 and HB 420 are closely
related and that the committee would hear the sponsor statement
for HB 420 first but hear both simultaneously.
MS. JENNIFER YUHAS, staff to Representative Masek, said HB 420
deals with temporary water use permits and HB 421 deals with the
permanent water rights adjudication process. HB 420 was sponsored
by the House Resources Committee to repeal a sunset clause that
was added last year into HB 185. HB 420 will help the state with
some pending lawsuits on the issue.
She explained that last year Representative Masek learned that a
lot of members from the general public were not satisfied with
the process for water rights adjudication, from testimony at
hearings about temporary water permits. People were unable to
access records they thought they should have access to and the
procedure was ambiguous and not standardized. HB 421 will
standardize the procedures for the adjudication of water rights
and provide better access to records. She said the sponsor would
be amenable to anything that would clarify which records the
public could access, what areas have water rights pending and the
status of one's application.
MR. BOB LOEFFLER, Director, Division of Mining, Land and Water,
described the division's temporary water use program as follows.
Water rights is for permanent water uses, for permanent
water needs. It is a property right to the water. Once
you get it, you get to use it until you no longer need
it. That program is not light on its feet. Because of
public notice and other things, it takes 60 days to do
a non-controversial application, a lot longer before HB
185 solved some of our problems.
The temporary water use program is a program which is
much lighter on its feet, if you will. It is for short-
term water needs, that being less than five years and
it's typically used during Alaska's short construction
season by a variety of construction users. It's not a
property right. It is revocable if we have a problem.
The procedures to issue it are: agency notice is
required, a Title 16 permit is required if it's an
anadromous water body, plus there's effective
concurrence by the Department of Fish and Game on our
most important water bodies. Public notice is
discretionary and, in fact, not usually done, because
for a short construction season, public notice is not
usually done. Of the 39 temporary water use permits we
issued on the North Slope, we did do public notice on
25 of those so far this year. Staff, before issuing it,
staff analyzes those permits for effect on fish and
wildlife and other water uses. We don't issue them for
significant effect.
What I'd like to do is give you a sense of who gets
them, how much they're for and how long. There's a
perception that temporary water use permits are for the
North Slope. North Slope is a big part of our
clientele, but it's certainly not the only one. We went
back over the FY01 permits and roughly a third of those
were in the North Slope. The rest of them were spread
throughout the rest of the northern region,
Southcentral and Southeast, with a majority being in
Southcentral. So, two-thirds of them are not on the
North Slope.
With respect to who gets them, in FY01, we issued 90
permits, of which 41 were oil and gas, 17 were for
roads, 3 for mining and 29 for miscellaneous uses - be
they lodges, cross-country travel, exploration, needing
to test a pipeline or whatever. So, roughly 60% or so
are not for oil and gas.
With respect to how long they are, we have 25% -
roughly a third of them are for 4 - 5 years. Those are
mostly on the North Slope. A third of them are for less
than three months and the median, which is to say the
average permit, is for less than a year. So, throughout
Alaska, we have permits that are on average for less
than a year. Except for the North Slope, the average is
50,000 gallons a day. They're spread throughout the
state and they're for a variety of uses.
I would like to give you just two examples of how
they're typically used. One is Icicle Seafoods out on
the Aleutians; their water source dried up. They needed
water to get through the season. We gave them 200,000
gallons per day after comment by Fish and Game so they
could get through the season and then they now applied
for permanent water rights. Our hydro-seeding company -
one applied a few years ago for 10 sources. We approved
five, because of fishery concerns after comments from
Fish and Game. And then we revoked one, actually
because the public felt it was too noisy pulling out of
one particular lake.
So, what I'm trying to leave is the impression that
they are widely used by construction industry - not
just on the North Slope and they're important for
people in our short seasons. We've been criticized for
giving these without public notice and I believe, of
course, that government should tell the people what
it's doing. Because of the devastating effects of
putting a 30 to 60 day delay during our construction
season, I don't believe we can do this for temporary
water use permits.
But the concern that people can't view what the
Department of Natural Resources is doing is a concern
that I would like to address and I believe HB 421
addresses that concern. That is, it says that we need
to put everything we do on the Web such that normal
humans who have access to the Web can understand what
we do, see where we're getting it. If they need to
appeal one or ask for one to be revoked, they can do
that. If they want to see the cumulative impacts, they
can see that, but it is public information in a way
that doesn't get in the way of our short seasons for
revocable temporary permits. So, I'm hoping that that
solves the concern over public notice and that lets
people assess what I think of as the good work that the
Department of Natural Resources does.
One last point, as I'm not going to go over the North
Slope water use. I believe you've discussed this in
committee before and I'm confident that we do an
excellent job there of protecting the resources. I'm
happy to answer any questions you might have.
SENATOR ELTON asked what process an applicant goes through to get
a temporary water use permit.
MR. LOEFFLER replied that an applicant works with DNR until DNR
is satisfied with the permit application. DNR then sends it to
the Department of Fish and Game for comment; they almost always
comment if there's any fish involved; they send it to DEC who
rarely comments. If there's a hydrologic question, the
hydrologist looks at it. If DNR believes there is enough water,
there will be no impacts on fish and wildlife or on other water
uses, then it issues the permit for up to five years.
SENATOR ELTON asked if applicants fill out a form or whether they
just walk into the office.
MR. LOEFFLER replied that DNR has a temporary water use
application form.
SENATOR ELTON asked how long the process takes.
MR. LOEFFLER replied that it can take many months to process a
controversial large project, but an easy one where there is no
other water use can be issued in one day. If there is an
emergency, DNR can call Fish and Game and be confident that
issuing a permit won't be hurting a resource.
SENATOR ELTON asked what type of an application would take five
years and whether the time period would be considerably
foreshortened if an applicant needed to reapply.
MR. LOEFFLER replied that DNR doesn't like to issue serial
temporary water use permits. The law changed and says they are
non-renewable. If someone needs multiple permits, DNR tries to
issue the permit for the length of time the applicant needs it
for. If it's over five years, the applicant should be applying
for a water right.
CHAIRMAN TORGERSON asked him to review the public notice
procedure.
MR. LOEFFLER replied for water rights, a permanent property right
to the water, DNR does public notice. For temporary water use
permits are typically used during a construction season, which is
short so DNR typically does not do public notice, although they
have on 25 of the 39 North Slope permits issued this year. He
pointed out:
But people have concerns that DNR is not doing a good
job and for them to assess those concerns, I think HB
421 is a solution, because while it doesn't put a 30
day delay during the construction season, it puts
information on the Web so people can see it, appeal the
permit, ask for it to be revoked or see them in concert
with all the others so they can assess whether their
government is doing the work it should.
SENATOR HALFORD asked how far behind DNR is in issuing permanent
water rights permits.
MR. LOEFFLER replied that DNR is very far behind. He expects to
get the backlog cleaned up within five years.
SENATOR HALFORD asked if DNR is more than five years behind.
MR. LOEFFLER said he thought 5 to 6 years is a good number for
some types.
SENATOR HALFORD said for the permanent process, DNR is more than
five years behind; for the temporary process DNR issues permits
for as long as five years. He has heard complaints that DNR can't
seem to get to the long-term process because it is overwhelmed
with the short-term process. He asked:
The temporary process can be on top of the long-term
process, can it not? I mean it isn't traditional, the
uses you're talking about, particularly North Slope,
but it can be.
MR. LOEFFLER said that is correct.
SENATOR HALFORD continued:
Somebody who has five years ago applied for water
rights can lose the effective use of water because a
temporary permit took it away.
MR. LOEFFLER replied, "A water right always takes precedence over
a temporary water use permit."
SENATOR HALFORD interrupted, "You don't have the water right if
you haven't acted on their water right application, do you?"
MR. LOEFFLER responded, "Their water right is good to the
priority date that they applied. The priority date is the date it
comes in."
SENATOR HALFORD asked how DNR knows that when it is assessing a
temporary permit and is five years behind in the permitting.
MR. LOEFFLER explained, "Once that water right comes in, we do
put those on the Web. So, when we're looking at a temporary water
-- that is we put it on our status plats. So when we're looking
at a temporary water use permit application, we'll know that
there are applications for water rights in the vicinity."
CHAIRMAN TORGERSON asked how many temporary water use permits DNR
issues per year.
MR. LOEFFLER replied that DNR did 39 this year. This year will be
an unusually active year and he expects there to be about 150
applications. Most of those are on the North Slope for
construction, mining, testing a pipeline. They try to prioritize
the water right adjudication to those who have immediate need.
CHAIRMAN TORGERSON asked whether DNR or the applicant selects the
source.
MR. LOEFFLER replied that the applicants select the source and
then there's some give and take if DNR thinks that source is
inappropriate.
CHAIRMAN TORGERSON asked about DNR's procedure for streams that
are catalogued as having fish in them versus a glacial lake.
MR. LEOFFLER replied that DNR will work with Fish and Game but
the applicant will need a Title 16 permit on all anadromous water
bodies.
CHAIRMAN TORGERSON asked if he tells that to everyone who comes
in.
MR. LOEFFLER replied yes, and that he couldn't always guarantee
that his staff does, but they should be.
SENATOR HALFORD asked Mr. Loeffler is he would object to
requiring that the applicant have a Title 16 permit before the
DNR permit can be valid.
MR. LOEFFLER said he wouldn't.
CHAIRMAN TORGERSON announced that will be amendment 1 and asked
Mr. Loeffler if he was okay with that amendment.
MR. LOEFFLER replied that he was okay with amendment 1.
CHAIRMAN TORGERSON asked him about the second amendment.
MR. LOEFFLER responded that the second amendment requires that
temporary water use applications once they're completed be put on
the Web so people can see them. He felt that is consistent with
his previous statement that the public would be able to view what
DNR is doing but it will not create a time delay during the short
construction season.
CHAIRMAN TORGERSON took public testimony.
MR. TADD OWENS, Executive Director, Resource Development Council
(RDC), strongly supported HB 420. The RDC believes that a
permanent repeal of the sunset clause that applies to temporary
water use authorizations and retention of DNR's authority to
assess fees for administration of the water program is very
important. DNR's ability to issue temporary water use
authorizations is important for a host of commercial and private
activities throughout Alaska that don't require a permanent water
right. DNR has issued temporary water use authorizations for
almost 20 years for a variety of projects across the state. DNR
has always consulted with DEC and ADF&G before issuing water use
authorizations and there has been no evidence of harm to Alaska's
fish and wildlife resources or any significant environmental
impact due to temporary water use authorization. The RDC believes
this is a regulatory program that works to support economic
development without compromising environmental protection.
MS. MARILYN CROCKETT, Deputy Director, Alaska Oil and Gas
Association (AOGA), fully supported Tadd Owens' comments and
supported HB 420.
MR. JAN KONIGSBERG, Trout Unlimited, said he was speaking on
behalf of the Alaska Public Waters Coalition, which includes
sport fishing groups, conservation organizations, former members
of the Alaska Water Board and other individuals. All are
concerned about the executive branch actions affecting the
disposition of Alaska's water resources. They do not support HB
420 and believe the temporary water use program should sunset on
July 2002 as provided in the original enabling legislation. They
don't object to a temporary water use program to provide for
truly temporary and truly unanticipated water use for a period
less than one year. Otherwise the public deserves notice and
determination of public interest. He stated:
The beneficial use of Alaska's public waters has always
been free. Even though water is every bit as valuable
as other public resources such as gravel, industrial
users aren't charged for the water, but now the
temporary water use program offers an extra bonus -
freedom from the public interest determination under
the statute. Since there is no public notice, and since
no public interest determination is required, there is
really no way other than agency discretion that users
will know how they might be affected until after the
temporary water use permit is authorized and similarly
there is no way to know the impacts to fish and
wildlife and their habitats until after the fact…
MR. KONIGSBERG noted that they submitted proposed amendments to
the committee that insure public notice, require that [indisc.]
restrict the water source, restore the definition of hydrologic
[indisc.] that is used by the other 49 states and the federal
government and require due diligence in resource monitoring.
MR. KEITH BAYHA, Chairman, Alaska Public Waters Coalition, said
everyone he represents is, "concerned about executive actions and
legislative and regulatory initiatives affecting Alaska's water
resources that would further special interests at the expense of
public interest."
He said they are generally pleased with the changes in HB 421,
but believe there is room for further improvement. Their
principal concern is that the term 'standardized procedure' lacks
definition. He said there is no procedure for evaluating and
determining public interest criteria. By establishing these
procedures in regulation they will be formalized, standardized
and clear to the public as well as to agency staff. He supported
HB 421, especially if their proposed amendments are adopted. He
offered to read them to the committee, but they already had them
in writing.
MR. CHIP DENNERLEIN, Director, Division of Habitat and
Restoration, ADF&G, said he was available to address questions.
He concurred with Mr. Loeffler's description of the process,
particularly with the North Slope. He also supported the
amendments.
SENATOR HALFORD moved to adopt amendments 1 and 2 as one
amendment to HB 421.
CHAIRMAN TORGERSON asked Mr. Loeffler if the amendment would add
an extra burden for him.
MR. LOEFFLER replied that they are already doing part 1 and part
2. They are minor burdens, but give transparency to the program
and he didn't object.
CHAIRMAN TORGERSON noted that there were no objections and
amendment 1 was adopted.
SENATOR HALFORD moved to pass SCS CSHB 421(RES) from committee.
There were no objections and it was so ordered.
SENATOR HALFORD moved to pass HB 420(Title am) from committee
with individual recommendations. There were no objections and it
was so ordered.
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