Legislature(2021 - 2022)BUTROVICH 205
04/08/2022 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB227 | |
| SB228 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 227 | TELECONFERENCED | |
| *+ | SB 228 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 177 | TELECONFERENCED | |
SB 228-OUTSTANDING NAT'L RESOURCE WATER
4:35:06 PM
VICE CHAIR MICCICHE announced the consideration of SENATE BILL
NO. 228 "An Act requiring the designation of outstanding
national resource water to occur only by statute; relating to
the management of outstanding national resource water by the
Department of Environmental Conservation; and providing for an
effective date."
4:35:41 PM
RANDY BATES, Director, Division of Water, Department of
Environmental Conservation, Juneau, Alaska, paraphrased prepared
remarks:
[Original punctuation provided.]
Outstanding Natural Resource Waters, ONRWs or Tier 3
waters, are defined as waters of "of exceptional
recreational or ecological significance" which shall
be "maintained and protected" from degradation in
perpetuity. A Tier 3 designation of a waterbody
bestows the highest level of water quality protection
under the federal Clean Water Act and restricts a wide
range of activities on these waters as well as on
adjacent lands. Since 1983, the Clean Water Act has
required that each state establish an ONRW or Tier 3
designation process.
4:36:48 PM
MR. BATES continued.
[Original punctuation provided.]
Alaska has a process in place, formalized in November
2018 in the form of a Department Policy and Procedure,
that essentially reads the same as the bill "The
current process for nominating Tier 3 waters involves
proposing the introduction of legislation to make the
designation. Any such request may go to a legislative
representative or committee for consideration for
introduction as a legislative bill. Typically, a
request to an individual legislator would go to a
legislator whose district contains the proposed Tier 3
water."
Because the designation of a Tier 3 water carries with
it the requirement to maintain and protect the water
quality from degradation in perpetuity, the
designation restricts a wide range of activities on
the waters and adjacent areas, to include
• road and building construction
• recreational activities
• seafood processing
• municipal wastewater discharge and septic systems
• storm water discharge
• landfills
• gravel quarries
• large-scale resource development projects and or any
other activity that might affect the designated water
4:38:12 PM
MR. BATES continued.
[Original punctuation provided.]
Such widespread impacts effectively make Tier 3
designation a de facto land and water use decision,
one that may be based on designation criteria well
outside the Department's expertise and authority. For
illustration purposes, consider a Tier 3 nomination on
any Special River as an example. A party could
nominate that Special River for its exceptional
recreational significance for its sportfishing
opportunities. There is no doubt that this is a
special river and watershed, and it should be managed
accordingly, as all the agencies with expertise and
management authority currently do. However,
designation as a Tier 3 waterbody requires that the
water quality on the Special River be maintained and
protected in perpetuity for the reasons designated and
for the water quality at the time of designation.
What that practically means is that no new or
increased discharges to the river or its tributaries
would be permitted if the discharges would result in
lowering or degrading the water quality. That has
potential long-term if not permanent adjacent and
upstream land-use consequences no new discharge
contributions that lower or degrade water quality,
whether those new discharges meet water quality
standards or not. That would potentially eliminate
road improvements in the area, increased or changed
discharges from municipal wastewater treatment
facilities, increased recreational opportunities,
seafood processing, or anything else that might affect
the water quality.
The designation of a Tier 3 water includes significant use
restrictions and requires a substantial evaluation on the use of
a waterbody that exceeds the Department's statutory authority.
4:40:16 PM
MR. BATES continued.
[Original punctuation provided.]
The Department has proposed this bill to formalize
that the designation of Tier 3 waters would be
accomplished, appropriately, by the legislature
through statute, and having that legislative process
would provide two very important things:
1. A full and public process engaging all the
interested and affected parties, including those
communities, residents, users, developers, and
conservationists, and also those agencies with
oversight responsibilities for the area lands and
waters; and
2. A full discussion on the consequences, restrictions,
or impact to other activities and potential
activities by the designation, including future and
foreseeable activities.
4:41:07 PM
Providing for the designation of a Tier 3 water as
structured in the bill will bring certainty to the
process and would codify in statute a consistent
practice for how lands and waters across the state
would be designated for conservation by legislative
approval rather than by division, department, or
judicial discretion.
4:41:49 PM
SENATOR KIEHL asked whether the courts have created a Tier 3
designation in the absence of a structure or framework.
MR. BATES said he was unaware of any judicial decision. He
explained that DEC's Tier 3 decisions could potentially be
litigated. DEC would prefer to have land use decisions made by
the legislature, not have them made by an agency or the courts.
SENATOR KIEHL said he understood the arguments about impacts on
adjacent lands, but these are not land use decisions but are
water quality decisions under the Clean Water Act.
MR. BATES answered that the reasons for Tier 3 designations
could go beyond simple water quality to recreational or
ecological purposes. He referred to his earlier example of a
special river, relating that a waterbody could be designated as
Tier 3 because of its extraordinary fishery or the rafting
opportunities. However, those reasons fall well outside the
bounds of the expertise and authority of the Division of Water,
which focuses on water quality.
4:44:01 PM
SENATOR KIEHL commented that it was an interesting dilemma. He
offered his belief that the legislature provides various state
agencies with significantly more authority than this. For
example, DNR can sell land, which would impact land use. DOT&PF
can construct a highway, creating significant rights-of-way. He
said it always seems strange when a bill says the legislature
can pass a bill.
4:45:13 PM
VICE CHAIR MICCICHE asked why the administration brought the
bill to the legislature.
MR. BATES answered that DEC believes the legislature is the
proper forum to consider the broader implications of Tier 3
designations. He emphasized that the Tier 3 designation locks in
the water quality. This means there cannot be any increased
contribution that would degrade water quality. Suppose there was
a publicly-owned wastewater facility located upstream of a Tier
3 river. It would mean that the surrounding population cannot
increase because it would increase the discharge from the
publicly-owned utility and contribute some pollutants beyond the
water quality classification of a Tier 3 river. It would also
mean that recreational user opportunities could not be increased
in the area. He opined that the Tier 3 designation has the
potential to lock up waters and preserve them in perpetuity. He
acknowledged that might be appropriate in some circumstances.
Still, it is a major decision that would prevent and preclude
the development of any other activity that would contribute to
the degradation of the water quality of the Tier 3 river, even
if the permitting process could mitigate the impacts. He
emphasized that a Tier 3 designation means that the activity
cannot degrade or contribute to water quality degradation of the
Tier 3 waterbody.
4:47:35 PM
MR. BATES said DEC believes this goes beyond the bounds of DEC's
authority, focus and discretion because it may require
designating areas for subsistence, fishery, or recreational use
and tread on another agency's authority. The legislature
designates critical habitat areas, and that same process should
be used for Tier 3 designations.
4:48:25 PM
SENATOR KIEHL related his understanding that temporary impacts
to water resulting from building or improving roads were
permitted and that roads have been improved through Tier 3
watersheds elsewhere in the country.
MR. BATES responded that temporary and de minimis activities are
allowed so long as the activities do not contribute to poor
water quality. Thus, temporary impacts related to road
construction could be accommodated for short periods. However,
if the road results in increased stormwater runoff or
contributes to nonpoint source pollution, DEC could not permit
the road building activity or construction of a mall at the end
of the road.
4:49:57 PM
SENATOR KAWASAKI asked if Tier 3 designations could ever be
amended or removed.
MR. BATES answered that he was unaware of a process to withdraw
a designation. He related that his division had queried other
states, and no one had attempted to do so.
SENATOR KAWASAKI commented that the dimensions of water bodies
occur because of climate change. He asked how that would affect
a Tier 3 designation.
MR. BATES acknowledged that was a fair point. He explained that
the Division of Water only has the authority to control
permitted activities and, to the extent it can, nonpoint source
activities that contain material that enters the water bodies.
He offered his view that if climate change impacts result in
increased turbidity, DEC we need to develop a management plan to
address it. For example, a highly sulfuric warm spring with a
temperature of 104 degrees Fahrenheit could be designated as a
Tier 3 waterbody. He was unsure how DEC would respond if the
temperature increased to 108 degrees.
4:52:25 PM
VICE CHAIR MICCICHE stated that the committee previously
discussed SB 227, which requests Section 404, Clean Water Act
primacy. He wondered if this bill punts the issue to the
legislature and how the legislature would handle Tier 3
determinations since DEC uses a science-based approach to make
them.
MR. BATES offered his view that DEC has an exceptionally
skilled, science-based staff that permits, evaluates, and
mitigates water quality to avoid negative impacts and meet water
quality standards to move projects forward. DEC conducts
fieldwork and samples water throughout the state. He noted that
DEC's website explains these activities. Instead of punting, DEC
would bring a level of expertise and science to the legislative
process related to Tier 3 designations. However, Tier 3
designations carry an opportunity to adversely impact activities
beyond water quality, such as fishery management, which fall
outside their area of expertise. He said DEC would like to
participate in the process related to water quality. He offered
to expand his response to address Section 404 permits if
desired.
4:55:40 PM
VICE CHAIR MICCICHE was unsure how the process would work under
SB 228. He asked if the bill were to pass, how the legislature
would make the Tier 3 determinations: if legislators would
decide a water body should be designated and introduce a bill.
He wondered if the goal was never to have an outstanding
national resource waterbody.
4:57:17 PM
MR. BATES stated that if SB 228 were to pass, a legislator or a
committee could introduce a bill on behalf of a constituent that
would identify the boundaries of a special river as a Tier 3
waterbody and list the reasons, including a minimum amount of
background information to support the request. This would mirror
DEC's current process. He surmised that testimony would reveal
the science, policy, and justification during the public
process. For example, ADF&G could testify on matters related to
fisheries management, DNR on navigability and allowable
watercraft, DEC on water quality aspects, and landowners along
the river would weigh in on resource development activities that
could contribute to the river's water quality degradation. He
characterized the legislative process as a robust one.
MR. BATES responded to Senator Micciche's question on how
science affects Section 404 permitting, relating that DEC's
staff is exceptionally skilled in evaluating, permitting, and
conditioning projects. Under the Section 404 permitting process,
DEC imposes jurisdictional determinations, and the US Corps of
Engineers implements them. He related that to determine if the
activity is in US waters as defined under federal law, DEC would
evaluate the hydrology, flora, and fauna typically found in
wetlands, which are considered waters of the US. He
characterized the process DEC uses to determine whether the
activity requires a Section 404 permit as a prescriptive
scientific process.
5:00:34 PM
SENATOR BISHOP said suppose the administration or a legislator
were to bring a bill forward to nominate a Tier 3 waterbody.
Suppose the waterbody consisted of a 10-mile waterway connected
to the Yukon River. He asked for an estimate of the cost to
perform the background to bring a bill forward, noting that
while the department has its experts, the legislature also has
its experts.
MR. BATES offered to research this and report to the committee.
However, the legislature currently considers bills ranging from
simple to complex ones. He surmised that someone who would
nominate a 10-mile stretch of water would likely compile several
years of data and provide justification to support designating
the river as Tier 3 to allow the legislature to make a rational
decision. Under the current process, DEC would want to know why
the Tier 3 designation was necessary, any associated costs, what
outreach was done to assess development activities in the area,
and what activities could be precluded to understand the
consequences of the Tier 3 designation.
5:03:35 PM
SENATOR KIEHL said suppose a Tier 3 waterbody is somehow
designated, but it shouldn't have been. He wondered whether it
could be undesignated. He asked Mr. Bates to clarify that no
other state has a process to de-designate a Tier 3 designation.
He stated that three years ago, the Division of Water testified
that the Environmental Protection Agency doesn't have any rules
against it. EPA's correspondence to DEC indicated the agency
didn't have any objections to having it delisted or de-
designated. He asked whether there was any conflict or if both
were accurate.
MR. BATES answered that he does not see any conflict. He said he
is unaware another state has a de-designation process. He
further responded that he was aware that EPA does not have a
prohibition against de-designating a Tier 3 waterbody. He
offered to follow up with the committee.
5:05:28 PM
VICE CHAIR MICCICHE opened public testimony SB 228.
5:05:50 PM
LINDSEY BLOOM, Campaign Strategist, SalmonState, Juneau, Alaska,
spoke in opposition to SB 228. SalmonState is a nonprofit
organization working throughout Alaska, focused on salmon and
fishery conservation issues. She surmised from the questions
asked that many committee members are familiar with the issues.
She stated that she had been part of that application in the
past and was willing to discuss her experience.
MS. BLOOM stated that SalmonState believes that DEC has the
authority and in-house expertise to process applications and use
its highly skilled staff to review the criteria and determine
whether the waterbody should be designated as Tier 3. She noted
that DEC wants to punt this to the legislature and politicize
the issue. Tier 3 designations should be based on a scientific
process. She stated that requiring the legislature to designate
the outstanding national resource waters is the wrong direction
to go.
5:08:10 PM
SENATOR STEVENS said he is always concerned about water quality
and protecting the environment. Still, he is also worried about
imposing restrictions on industry, which could bring fisheries
ashore instead of at sea. He asked whether some of these
restrictions could damage the industry.
MS. BLOOM answered that she was not concerned. As Mr. Bates
stated, there would be allowances for temporary and de minimis
discharges to Tier 3 designated waterbodies. She said Bristol
Bay is one of the fisheries she had participated in on the
Naknek River. She suggested if that river were designated as a
Tier 3 river, it would mean economic activity could not occur
that would permanently impair the waterbody and affect seafood
processors. She offered her belief that the fishing industry's
discharges would fall within the temporary and de minimis
category. She offered her view that the state should protect
many salmon streams, so their water quality is not diminished
and compromised because many of Alaska's coastal communities
depend on these fisheries.
5:10:04 PM
SENATOR STEVENS wondered why Ms. Bloom was in opposition to SB
228.
MS. BLOOM responded that she opposes SB 228 because the agency
has been negligent in its responsibility to process applications
and make decisions on Tier 3 determinations. She related that
she was specifically involved in a Tier 3 application for Solara
Creek, a salmon-producing headwater in the Bristol Bay watershed
that was nominated years ago. DEC rejected the application
because DEC refused to create the process necessary to approve
or deny these applications. She emphasized that the agency
should focus on the scientific criteria, and if a nomination
meets the criteria, the waterbody should be protected and
designated. She offered her belief that the process does not
need additional layers of political and legislative debate
because it does not serve Alaskans.
5:11:53 PM
AARON BRAKEL, Inside Passage Waters Program Manager, Southeast
Alaska Conservation Council, Juneau, Alaska, spoke in opposition
to having a legislative-only approach to designating Tier 3
waterbodies in SB 228.
MR. BRAKEL stated that the legislature could delegate its
authority, which is appropriate in this instance. He clarified
that he was not opposed to the legislature introducing a bill to
designate a specific river or stream as outstanding national
resource water. Still, there should be a scientific, community-
based process to identify a waterbody as ONRW and go through a
state and scientific process to designate the water.
MR. BRAKEL suggested that if this Division of Water director
doesn't believe it's within his jurisdiction to designate ONRWs,
perhaps the next one might. He stated that Alaskans don't always
experience the Division of Water's permitting process the same
way the director represents it. He expressed concern about the
permitting process. For example, he reviewed a mining permit,
where it was clear to him that the State of Alaska had stepped
back and allowed a discharge of metals to continue. However, he
offered his view that a scientific process can be used for Tier
3 designations. He urged members not to pass the bill.
5:15:00 PM
SENATOR BISHOP said he is a miner. He said he guarantees that
DEC does not step back from the mining industry on the water
quality going back into the streams.
5:15:37 PM
VICE CHAIR MICCICHE closed public testimony on SB 228.
VICE CHAIR MICCICHE held SB 228 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 228 Fiscal Note DEC 1.25.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 228 Letter of Opposition Molly Dischner 4.6.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 228 Sectional Analysis 4.6.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 228 Tier III Waters Transmittal Letter 3.10.2022.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 228 |
| SB 227 Fiscal Note DNR 3.10.22.pdf |
SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Sponsor Statement 3.10.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Sectional Analysis 3.15.22.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Presentation Submerged Lands 4.8.22.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |