04/01/2016 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SB163 | |
| Presentation: Food Security | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | SB 163 | TELECONFERENCED | |
SB 163-NATL. RES. WATER NOMINATION/DESIGNATION
3:30:41 PM
CHAIR GIESSEL announced consideration of SB 163. She said this
is the fifth hearing; the last hearing was on March 16 and
public testimony had been heard and closed.
3:30:46 PM
SENATOR WIELECHOWSKI joined the committee.
SENATOR COSTELLO moved to adopt CSSB 163 ( ), labeled 29-
GS2916\I, as the working document.
CHAIR GIESSEL objected for purposes of explanation.
3:31:25 PM
SENATOR MICCICHE joined the committee.
3:31:31 PM
MICHELLE HALE, Director, Division of Water, Department of
Environmental Conservation (DEC), Anchorage, Alaska, explained
the changes in version I of SB 163 as follows:
1. Page 1, line 7: changes the name of Tier 3 waters
to outstanding state resource waters instead of
national waters.
2. Page 1, lines 9-10: adds that the Legislature may
remove a designation.
3. Page 1, line 12 - page 3, line 7: rather than have
the process for submittal of nomination information
and public notice established in regulation
(AS46.03.085(c) in the original bill), the CS
establishes an eleven point criteria a nomination must
include, and adds a fee (Section 46.03.135(b)(1)
through (11)). The fee for a completeness
determination of the nomination information.
CHAIR GIESSEL asked for a discussion of the fee.
MS. HALE replied the fee language is on page 3, line 7, and it
is $1,000. It is to provide the agency with resources for making
the completeness determination. That's not the analysis, but
just in-taking the information, reviewing it, and making sure
that it adheres to the previous 10 criteria in that section.
3:33:57 PM
4. Page 3, line 9: Adds a six month timeline for the
department to determine that a nomination is complete
in AS 46.03.145
5. Page 3, lines 10-25: Allows for the department to
enter into an agreement with a nominator for the
nominator to reimburse the department for the costs
related to the analyses (not related to the
completeness determination) of the nomination process
including public notice, preparation of the findings,
analyses and determinations related to the nomination
to the legislature. The agreement that the department
would enter into would also include money to reimburse
the other resource agencies for the work that they do.
So ADF&G and DNR would be included in that agreement
and DEC would basically RSA the money to them.
Alternatively, the department can prepare a cost
estimate for processing a nomination and forward that
to the legislature for consideration as a capital
appropriation.
3:35:18 PM
6. Page 3, line 31 - through page 4, line 2: outlines
that the department shall establish a process for
providing public notice, including individual notice
to land owners, and for prioritizing nominations in AS
46.03.155. And provides a process of prioritizing
nominations.
7. Page 4, line 10 - page 5, line 16: Before
transmitting nominations to the legislature, adds that
the department must certify a nomination complete; in
consultation with DNR and DF&G, determine that the
water has exceptional characteristics; in consultation
with DNR and DF&G create a report analyzing certain
factors related to the nomination including analysis
of risk that the water will be degraded, and the pros
and cons of alternatives available to preserve the
water in AS 46.03.165.
3:36:38 PM
8. Page 5, lines 17-23: Clarifies that a list of
nominations from the preceding four calendar years is
submitted to the legislature in the first regular
session of each legislature after January 2018, while
entire nomination packets for nominations certified
complete in the preceding two calendar years are
submitted in AS 46.03.175.
9. Page 5, lines 24-29: Requires the state resource
agencies (DNR and DEC) to submit a report to the
legislature every ten years beginning in 2020 on the
status of designated waters and recommendations on
continuation of the designations.
10. Page 5, line 30 - page 6, line 4: Provides
language describing how the department shall manage a
designated water to maintain its existing water
quality and only allow discharges that result in
temporary lowering of water quality in AS 46.03.185.
11. Page 6, lines 5-7: clarifies that a water cannot
be managed as an outstanding state resource water
until it has been designated as such.
12. Page 6, line 10-14: provides a definition of
"resident" and "waters of the United States" in AS
46.03.195.
13. Page 6, lines 15-19: adds uncodified law that the
department's first submittal of nominations to the
legislature be after 2018.
3:38:51 PM
SENATOR STOLTZE said Commissioner Hartig talked about finding
the middle ground and asked if she would describe this as middle
ground.
MS. HALE answered yes, adding that they had worked very hard
listening to comments and from the Senate Resources Committee to
find that middle ground.
CHAIR GIESSEL asked her to explained the error in citing the CFR
on page 6, line 14.
MS. HALE said the citation on line 14 is 40 CFR 230.3 and it
should be 40 CFR 122.2. Both are definitions of waters of the
U.S.; they just refer to different parts of the CFR and 122.2 is
more appropriate to point source discharges.
CHAIR GIESSEL said they would correct that after they adopt the
CS.
SENATOR WIELECHOWSKI asked if a tribe can apply for a
designation under this bill.
MS. HALE said the definition of resident of the state is defined
in AS 01.10.055 and it is quite broad. It doesn't specifically
call out tribes, but it does call out organizations and any
person. For example, the chief of a tribe would be a person or
resident of the state.
SENATOR WIELECHOWSKI asked if the CS requires the legislature to
formally consider a nomination after a person has paid the
$1,000 fee.
MS. HALE answered that nothing in the CS requires the
legislature to formally consider that nomination. It just
outlines the process the departments go through for their
analyses and for getting that information to the legislature,
and then it's up to the legislature to decide what they want to
do with it.
CHAIR GIESSEL said the $1000 fee is to pay for staff time used
to make sure the application is complete.
SENATOR WIELECHOWSKI asked how DEC will prioritize the
nominations.
3:41:50 PM
MS. HALE said that DEC would write regulations to clarify that,
but one example of prioritizing those nominations would be the
completeness of it. So, a large report with a lot of detail in
it might have a higher priority than a simple letter.
SENATOR WIELECHOWSKI asked if the DEC believes any waters
deserve protection right now.
MS. HALE said she wouldn't know how to answer that question.
SENATOR WIELECHOWSKI asked if DEC has evaluated any waters and
come to the conclusion that they should be protected as natural
resource waters.
MS. HALE answered no.
3:43:09 PM
SENATOR MICCICHE asked why the administration brought this bill
forward at this time.
ED FOGELS, Deputy Commissioner, Department of Natural Resources
(DNR), Juneau, Alaska, answered that the DEC is lead on this
issue, but from DNR's perspective the Clean Water Act (CWA)
requires the state to have this program. If the state doesn't
develop its own program the concern is that the Environmental
Protection Agency (EPA) could impose its own program.
SENATOR MICCICHE said he wanted to pose that question to DEC, as
well.
3:44:43 PM
MS. HALE said DEC has been through the process over the last
several years of actually putting its anti-degradation
implementation procedures in regulation. It has been a very
public process. The requirement to have a process for
designating Tier 3 waters is in the CFR in the CWA and they are
committed to finalizing it. This bill arose at this time as an
"outgrowth of the work on those anti-degradation implementation
procedures."
SENATOR MICCICHE asked if it is related to the three current
requests that are on the list for Tier 3 waters.
MS. HALE answered the fact that they have those three requests
is separate from the proposed legislation, although they are
related. That is not what drove the legislation.
SENATOR MICCICHE asked if Alaska had a choice in adopting an
anti-degradation policy in 1997 under the CWA.
MS. HALE replied that it is a requirement.
SENATOR WIELECHOWSKI asked if language on page 3, lines 8-16:
"Within six months after receiving a nomination the department
shall determine whether the nomination meets the requirements.
If after six months no determination is made...." means it
automatically is concluded that the nomination meets the
requirements and asked if there is some sort of penalty if the
work isn't done within six months.
MS. HALE replied that she didn't know the answer to that
question.
SENATOR WIELECHOWSKI said if the public nominates a waterway
could they reasonably conclude that if six months passes and a
determination hasn't been made, that it's automatically deemed
to be a complete application.
3:47:48 PM
MS. HALE replied that it would certainly be her intent to meet
that six month deadline, but their attorney could better address
that.
3:47:51 PM
CHRIS PELOSO, Assistant Attorney General, Civil Division,
Commercial and Fair Business Section, Department of Law (DOL),
Juneau, Alaska, said he believed under state law, the nominator
would be able to bring a suit or a complaint against the DEC for
failure to meet its deadlines and a judge could order them to
make a determination.
SENATOR WIELECHOWSKI supposed that a judge did that and added
that then it would still have to go to the legislature. He asked
if a remedy is available if the legislature doesn't take any
action.
MR. PELOSO answered no; neither the DEC nor the courts can force
the legislature to consider or take action on a bill.
SENATOR WIELECHOWSKI asked if this legislation passes, could the
citizens of Alaska designate a water body by ballot initiative.
MR. PELOSO answered that a person could decide to go through the
ballot initiative process.
CHAIR GIESSEL added that the initiative would be submitted to
the lieutenant governor who would then ask the Department of Law
(DOL) if it was legal.
MR. PELOSO said that was correct.
SENATOR WIELECHOWSKI asked if he has an opinion about whether or
not - if this passes and the determination process is turned
over to the legislature - if it fails to act if the people of
Alaska could legally designate a waterway through a ballot
initiative.
MR. PELOSO replied from his understanding of the state
constitution, the legislature is a body that would designate
this type of water body through a number of processes. If a bill
came forward for a water body that clearly didn't meet the
qualifications, it would be incumbent upon the Senate, or the
voters in a ballot initiative, to make the determination that
that waterway didn't deserve protection.
SENATOR WIELECHOWSKI asked if it was his opinion that the people
of Alaska could through a ballot initiative to nominate a
waterway if this bill passes.
MR. PELOSO said he believed that is the case whether or not they
pass the bill.
3:51:31 PM
SENATOR MICCICHE said that issue is worthy of further
discussion. "Doesn't Kelso v. Rivichek in '96 define the fact
that the state has the discretion in developing water quality
regulations?"
MR. PELOSO said he would have to look at that case law.
SENATOR MICCICHE said Mr. Peloso made a statement that he
believes the people have the right to designate water quality
regulations and he wasn't sure that is the case. It is a valid
and important question to which he wanted more information on.
He added that the DEC currently has the authority to designate
an NROW.
MS. HALE answered that there is some real ambiguity in terms of
who has that authority; either it's authority granted to the
legislature by the constitution or the authority is granted to
the DEC through the Water Quality statute.
SENATOR MICCICHE said the governor made the policy choice to
have the designation authority rest with the legislature and not
with the DEC.
3:53:21 PM
MS. HALE said the governor did make the choice to put this bill
forward, but it is also the DEC's belief that the decision to
designate a waterway more appropriately rests with the
legislature.
SENATOR COSTELLO said she wanted to clarify her response to
Senator Wielechowski's question. She understands the way the
bill is written that nominations that are forwarded to the
legislature by the department would be in the form of just a
report, not in the form of a bill.
MS. HALE said that is correct; it would be in the form of a
nomination with the backup information.
SENATOR COSTELLO asked if an administration would be able to
both forward a nomination in the form of a report and a bill
that is introduced on behalf of the administration.
MR. PELOSO answered yes. He thought a bill for nominating a
water body would be simple: amending the statute by adding or
subtracting waters off the list.
3:55:13 PM
SENATOR COSTELLO said if this were to pass, statute would say
that only the legislature could designate an Outstanding State
Natural Resource Water (OSNRW) and asked if it was his opinion
that a citizens' initiative could trump that state statute.
MR. PELOSO replied that he would have to do more research on how
ballot initiatives work.
CHAIR GIESSEL said they would get an opinion from the Department
of Law on that.
SENATOR WIELECHOWSKI said one of the requirements is that the
entirety of the water nominated is a water of the United States
(page 4, line 13) and asked if that means if a river flows
through Canada and comes into Alaska that it could not be
nominated.
MS. HALE answered that it is the "entirety of the water that is
nominated" that needs to be part of the United States.
Frequently one will see segments nominated in other states
rather than the entire reach of the river.
SENATOR WIELECHOWSKI asked when DEC submits its packet of
information to the legislature can they expect a recommendation
to accompany it to make the nomination or not.
MS. HALE answered that it isn't called a recommendation, but
rather a thorough analysis.
3:57:49 PM
SENATOR STOLTZE asked how the $1000 completeness review fee was
determined and if it actually covers the cost of the review.
MS. HALE answered that the department has a lot of fees for
services and is accustomed to the extent of work that can be
done with a fee. The fee is a rough estimate based on how
similar to other work it is.
SENATOR STOLTZE said it's easy to get waiver variances for
things like septic or discharge systems and asked if the fee is
to discourage frivolous applications or does it come anywhere
near covering staff cost for the review.
MS. HALE said she is familiar with the kind of analysis the
engineers do for those types of waivers and this work is very
different in nature - a completeness determination and not an
engineering analysis. The workload is similar, though.
SENATOR STOLTZE asked if it is a similar staff commitment to
review a septic system for a small lot as to analyze and review
a river application that is permanent. Would $1000 cover all
staff time and public process required or was it just a nominal
fee to have some skin in the game? He was trying to develop an
understanding.
MS. HALE pointed to Section AS 46.03.145 on page 3, lines 8-25,
that says the analysis and public notice costs he is describing
would not be covered by the $1000 fee. The purpose of the
$1,000-fee is simply to determine if the 11 criteria in the
original section are met. Other costs for public notice and in-
depth analysis would be covered in a negotiated agreement that
the department would negotiate with the nominator.
CHAIR GIESSEL said that was helpful and added that the final
sentence says a capital appropriation would be needed and that
would be the fiscal note.
MS. HALE added that the fiscal note does not contain a capital
appropriation. It is a multi-year operating appropriation for
statutorily designated program receipts. So, it's essentially an
empty appropriation until the negotiation is agreed to and
signed. The program receipts would then be used to fund the DEC
work or to RSA to DNR and ADF&G.
CHAIR GIESSEL said although that is true, this certainly leaves
a potential for future fiscal notes related to this kind of
legislation. It appears that one can negotiate, because line 13
says the "resident shall reimburse the department for the costs
or a portion of the costs incurred by the department or another
state agency related to the nomination process."
MS. HALE said further on they will talk about this potential
capital appropriation, but right now they are in the situation
of not knowing what the budget is going to be forever or how
each negotiation will work out. So, there is an attempt to
provide some flexibility.
4:04:38 PM
SENATOR WIELECHOWSKI said it appears that the bill's whole focus
is on nominations from residents and asked if it is possible for
the governor, the legislature, a legislator, or a committee to
nominate a waterway. Could a community such as Juneau or Haines
nominate a water way?
MS. HALE answered that she didn't have the definitions in AS
01.10.060 with her, but "resident" is defined quite broadly in
that section. "Resident of the state" in the definition section
means "an individual who establishes residency under AS
01.10.055," and .060 has the actual definition of resident that
includes, for example, organizations.
SENATOR WIELECHOWSKI asked if the governor or a legislator has
to write a check for $1,000 if they want to nominate a waterway.
He said the whole bill seems geared towards private citizens as
opposed to "sort of the normal legislative process."
MS. HALE answered that it has been DEC's understanding that if
the legislature wanted to designate a water body as a Tier 3 or
an ONRW water, they could do that themselves without this
process. The governor could probably introduce a bill.
4:06:28 PM
SENATOR MICCICHE asked DNR Deputy Commissioner Fogels if he
could recall a 2014 ballot initiative on Bristol Bay watershed
and what it asked about that watershed.
MR. FOGELS answered that he remembered it requiring legislative
approval of any large mining development in the Bristol Bay
watershed after all the permits are issued.
SENATOR MICCICHE said a similar effort is sort of going on here.
MR. FOGELS responded that it is similar in that a significant
decision is being deferred to the legislature, but he didn't
know the thinking of the folks who put that initiative forward.
SENATOR MICCICHE said he would try to contact them and find out.
SENATOR COSTELLO said language on page 1, lines 7-10, say that
only the legislature can designate, but page 11 talks about a
nomination and its requirements and asked if the legislature
were to designate a water body would the requirements apply to a
bill. Common sense says that it would, but the language of the
bill doesn't really cover that.
4:09:40 PM
MS. HALE answered the requirements for the nomination are just
that; the purpose is to make sure there is sufficient analysis
and that information gets presented to the legislature. Then it
is up to the legislature to do what they want; they could
include the information in the designation or they might do
something else. For example, Commissioner Hartig has spoken of
the fact that the legislature has broad powers, so they may
designate something that is slightly less protected than a Tier
3 water but very protected still.
SENATOR COSTELLO thanked her, but said it didn't get to the
point of her question which is if the designation were entirely
generated from the legislative branch absent a nomination with
all of the information, could the legislature designate a Tier 3
without meeting the requirements set out, for example, on page
2, line 14, that it has exceptional ecological, economic, or
recreational significance.
MS. HALE replied that it is her understanding that the
legislature can do whatever it wants to. The Tier 3 definition
is very broad and talks about these exceptional characteristics,
but they have also talked about a very high level of water
quality or something that is unique, for example, Mono Lake in
California.
SENATOR STOLTZE said given ADF&G's constitutional and legal
responsibilities of sustainability and habitat protection and
DNR's constitutional responsibility under Article 8, he wanted
to know if either department has any concerns about this
legislation compromising their mission.
4:12:39 PM
MR. FOGELS answered that the department supports SB 163 and it
will be able to continue fulfilling its mission of managing
Alaska's water and other natural resources for the good of the
people if it passes. They want to make sure if they are going to
designate Tier 3 waters that the legislature and the people
understand what that means and what restrictions might be placed
on that water, so that that decision can be made very carefully,
because it could have implications down the road.
KEVIN BROOKS, Deputy Commissioner, Alaska Department of Fish and
Game (ADF&G), said he also supported SB 163 and Mr. Fogels'
comments. They feel the bill provides the department an
opportunity to bring its valuable expertise on water bodies to
the table.
SENATOR STOLTZE asked if any provisions of this legislation
would be deleterious or harmful to their ability to manage fish
resources.
MR. BROOKS replied that although a compromised water body would
certainly affect fish, this bill provides a process for dealing
with that.
4:15:11 PM
CHAIR GIESSEL noted an incorrect CFR citation on page 6, line 14
that was a drafting error brought to their attention by DEC.
SENATOR STEDMAN moved conceptual Amendment 1 on page 6, line 14,
of CSSB 168, version I, to delete "230.3" and inserting "122.2".
So it would read "2. Waters of the United States has the meaning
given in 40 CFR 122.2, as that section read on the effective
date of this act".
4:16:44 PM
CHAIR GIESSEL said they needed to adopt the CS first and asked
if there was objection to adopting CSSB 168, version \I. There
were no objections and it was so ordered.
SENATOR STEDMAN moved to conceptually amend the previous
amendment. There were no objections and it was so ordered.
SENATOR WIELECHOWSKI asked if there is a different definition of
waters of the United States that 40 CFR 230.3 didn't cover.
CHAIR GIESSEL objected for discussion and invited Ms. Hale to
clarify.
MS. HALE said the waters of the US rule, which is currently
stayed because of litigation, has a definition of "waters of the
US" at 230.3, but there are numerous other definitions of
"waters of the US" throughout the CFR. The definition at 122.2
is the more appropriate definition of the purposes here: point
source discharges, for example, and discharges under the
National Pollutant Discharge Elimination System Program.
SENATOR WIELECHOWSKI asked what 40 CFR 230 deals with.
MS. HALE answered that 40 CFR 230.3 deals with the Dredge and
Fill Program.
4:19:00 PM
SENATOR COSTELLO asked if the committee could get both
definitions in 40 CFR 122.2 and 230.3 just to see them side by
side at some point.
CHAIR GIESSEL said absolutely and asked Ms. Hale to get them.
She removed her objection and asked if there was further
objection to adopting the amendment.
SENATOR WIELECHOWSKI asked if it would be possible to wait until
they get the two definitions side-by-side.
CHAIR GIESSEL replied that she was planning to set the bill
aside as soon as they determine what to do with the amendment
and tomorrow Ms. Hale can get the definitions for them.
SENATOR WIELECHOWSKI reiterated it seems that the committee
should wait to make the decision on the amendment until they had
the definitions.
CHAIR GIESSEL said the committee could amend it tomorrow if he
found the definition is incorrect. Finding no further objections
and said the amendment was adopted. She held SB 163 in committee
awaiting the definitions from Ms. Hale.