Legislature(2001 - 2002)
03/20/2001 02:45 PM House ARR
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON
ADMINISTRATIVE REGULATION REVIEW
March 20, 2001
2:45 p.m.
HOUSE MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Jeannette James
Representative Joe Hayes
HOUSE MEMBERS ABSENT
All House members present
SENATE MEMBERS PRESENT
Senator Robin Taylor, Vice Chair
Senator Lyda Green
Senator Georgianna Lincoln
SENATE MEMBERS ABSENT
All Senate members present
OTHER LEGISLATORS PRESENT
Representative Drew Scalzi
COMMITTEE CALENDAR
KACHEMAK BAY CLOSURE TO BOTTOM MARICULTURE
(continued from 3/8/01)
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
RODGER PAINTER, Vice President
Alaskan Shellfish Growers Association
PO Box 20704
Juneau, Alaska 99802
POSITION STATEMENT: Testified on the closure of Kachemak Bay to
on-bottom mariculture.
BOB HARTLEY
Alaskan Shellfish Growers Association
PO Box 2284
Homer, Alaska 99603
POSITION STATEMENT: Suggested that other management methods for
the Kachemak Bay area should be reviewed.
ELLEN FRITTS, Deputy Director
Division of Habitat and Restoration,
Alaska Department of Fish & Game
PO Box 25526
Juneau, Alaska 99802-5526
POSITION STATEMENT: Recounted the process that led to the
regulation [to close Kachemak Bay to on-bottom mariculture].
RON LONG
Quetekcak Shellfish Hatchery
Box 2464
Seward, Alaska
POSITION STATEMENT: Expressed concerns.
JOHN AGOSTI, President
Alaskan Shellfish Growers Association
PO Box 2284
Homer, Alaska 99603
POSITION STATEMENT: Expressed concerns.
JEFF PARKER
(No address provided.)
POSITION STATEMENT: Expressed concerns.
GARY SEIMS, President
Kachemak Shellfish Growers Cooperative
PO Box 4213
Homer, Alaska 99603
POSITION STATEMENT: Expressed concerns with the regulations
banning clam farming in Kachemak Bay.
DEBBIE SEIMS, Coordinator
Kachemak Shellfish Growers Cooperative
PO Box 4213
Homer, Alaska 99603
POSITION STATEMENT: Expressed concerns with the regulations
banning clam farming in Kachemak Bay.
LISA NOLAN, Owner
The Homestead Restaurant
PO Box 15282
Fritz Creek, Alaska 99603
POSITION STATEMENT: Expressed concerns with the regulations
banning clam farming in Kachemak Bay.
JIM REEVES, Attorney
for the Clam Farming Industry in Kachemak Bay
1031 W. 4th Avenue
Anchorage, Alaska 99517
POSITION STATEMENT: Testified that the department simply
disagrees with the [aquaculture] policy determined by the
legislature.
ROBERTA HIGHLAND
Kachemak Bay Conservation Society
(No address provided.)
POSITION STATEMENT: Testified in support of the department's
decision to ban on-bottom clam farming in Kachemak Bay.
ACTION NARRATIVE
TAPE 01-8, SIDE A
Number 001
CHAIR LESIL McGUIRE called the Joint Committee on Administrative
Regulation Review to order at 2:45 p.m. All members were in
attendance at the call to order.
KACHEMAK BAY CLOSURE TO BOTTOM MARICULTURE
CHAIR McGUIRE announced that the committee would continue its
March 8, 2001, hearing regarding the closure of bottom
mariculture in Kachemak Bay. She noted that on the morning of
March 9, 2001, Lieutenant Governor Ulmer signed the regulations
[banning on-botton mariculture in Kachemak Bay] into law. Chair
McGuire pointed out that committee members should have a letter
from Lieutenant Governor Ulmer regarding the fact that she
didn't have any knowledge that the committee intended to have
another hearing on this issue.
CHAIR McGUIRE explained that the committee will have to decide
whether or not it is the committee's intention to repeal the
regulations that have been signed into law. That is the
committee's only recourse. However, in the meantime the
committee will continue to hear public testimony on the matter.
Number 0303
RODGER PAINTER, Vice President, Alaskan Shellfish Growers
Association, noted that the committee packet should include two
letters regarding the status of the littleneck clam resource in
Kachemak Bay. The information, which was compiled from [the
Alaska Department of] Fish & Game surveys and harvest
statistics, clearly [illustrates] there is a serious problem
with the littleneck clam resource in Kachemak Bay. He said,
"Unfortunately, the banning of aquatic farming in the critical
habitat area (CHA) will ensure the elimination of any commercial
sources of clams from the bay because I'm quite confident [that]
at some point the Board of Fisheries will close the commercial
harvest in Kachemak Bay." Mr. Painter remarked that all the
beaches on which the department conducted surveys are far beyond
commercial levels and should be closed to commercial harvesting.
Mr. Painter referred to his March 9, 2001, letter that quotes
Mr. James Brady, Central Regional Supervisor, Division of
Commercial Fisheries, Alaska Department of Fish & Game (ADF&G),
as saying that a productive clam beach has [an average density]
of [at least] 65 clams per square meter, clams that are greater
than legal size. The department's surveys also show that for a
number of years, there have been no beaches with that level of
clams.
MR. PAINTER turned to the public comment on the regulations and
informed the committee that "we" were told by ADF&G that the
basis for the regulations was the literature review prepared by
Dr. William Hauser, Division of Habitat and Restoration, ADF&G.
Several times [the Alaskan Shellfish Growers Association]
requested an explanation in regard to how the department was
recommending a ban when [Dr. Hauser's literature review] doesn't
"do that." He remarked that it is difficult to see which
sections of the literature review support a ban. The only
justification from the department was that [the ban occurred]
due to the department's analysis of the literature study. Mr.
Painter found it interesting that the department's formal
response, after the public comment period, was almost void of
references to Dr. Hauser's paper. Therefore, he believed that
once the study was discredited, the department backed away from
that as a justification for the ban. Mr. Painter related his
belief that it is unfortunate that this regulation has proceeded
in this manner. He hoped that the reason the regulation was
signed after the hearing wasn't to avoid this committee's
involvement in the development or final passage of the
regulation, because that would be an intolerable act of
arrogance.
Number 0691
SENATOR LINCOLN referred to the department's response to the
concerns expressed by Dr. RaLonde and that response seems to
include numerous references to literature Dr. Hauser has written
in other areas.
MR. PAINTER acknowledged that he had that and felt it was a good
case of shooting the messenger who is carrying a message that is
disliked. Mr. Painter noted that he helped prepare an
environmental assessment report regarding the Exxon Valdez
littleneck clam restoration project. That report dealt with all
the issues raised in [Dr. Hauser's] paper. Dr. Hauser was the
lead reviewer of the Exxon Valdez report and he approved the
report.
Number 0841
BOB HARTLEY, Alaskan Shellfish Growers Association, informed the
committee that he is an oyster farmer and has been involved with
mariculture since 1991. Although he doesn't have a clam farm
nor does he intend to apply for such, he felt that there should
be review of ways that allow responsible development in the
Kachemak Bay area. He recalled his first visit to Kachemak Bay
in 1968, when practically everyone in that area made their
living from Kachemak Bay because there were shrimp, crab,
halibut, and salmon. However, today there are no crab or shrimp
and the trees are all dead. "As far as the bay is concerned,
our stewardship has been terrible," he lamented. Kachemak Bay
has been a CHA since 1972. The regulations/plan that the area
currently operates under was written in 1992/1993, 21 years
after the area was identified as a CHA. Although the current
plan recognizes that suspended mariculture is permitted, all new
applications have been suspended by ADF&G. Mr. Hartley said, "I
think we need to look at our stewardship of this area. We have
some distinct problems with the clam populations." Upon review
of the statistics provided by ADF&G, one finds that the harvest
in 1999 was about one-third of what it was in 1995, which he
felt was due to a lack of clams. Furthermore, the surveys done
in Kachemak Bay illustrate that the clam populations in the area
are in decline. Therefore, the banning of clam farming seems to
be a "futile gesture." Clam farming is actually a manner in
which to produce clams on a sustained yield basis, which isn't
being done in Kachemak Bay presently. He felt that clam farming
would provide a base for repopulating some of the beaches in
Kachemak Bay. Returning to ADF&G's statistics, Mr. Hartley
pointed out that those statistics show that the sub-legal clams
in many of the areas are less numerous than the legal clams, and
therefore it indicates that "we're not even replacing what's
there." Thus, Mr. Hartley concluded that other management
methods for this area should be reviewed.
Number 1195
SENATOR LINCOLN inquired as to what Mr. Hartley felt would have
been better stewardship so that the habitat area wouldn't be in
such decline. She asked whether farming clams and having them
go elsewhere could have a detrimental impact on other areas or
the food chain.
MR. HARTLEY replied no. He explained that the clams that will
be planted, the brood stock, will be taken from Kachemak Bay
within a genetic area that includes Prince William Sound. He
informed the committee that the clams stay mobile in the water
for about three weeks and thus can spread through great
distances. The brood stock in the hatchery came from Kachemak
Bay and Prince William Sound. With regard to better
stewardship, Mr. Hartley said that more research could have been
done. One of the problems with the management of stocks in
Kachemak Bay is that things happened which people found out
about after the fact. If there had been monitoring of the
ecosystem on a more continuous basis, the knowledge that
something was wrong would have occurred before [the species was
gone].
Number 1436
SENATOR LINCOLN asked whether that is what the department is
trying to do now.
MR. HARTLEY pointed out that the department has known about the
clam population decline since 1995. However, the department
hasn't made a proposal to the Board of Fish to reduce the clam
harvest for either sport or commercial use during that time.
Furthermore, the clam surveys have been rather reactionary
versus being instituted by the department.
Number 1499
REPRESENTATIVE JAMES agreed with Mr. Hartley that there
should've been more research. She then turned to Alaska's
constitutional mandate to manage resources for common use on a
sustained yield basis, which she interpreted to mean that "we"
utilize these resources while maintaining them to always be
available. However, the research that was done didn't seem to
be done to maintain a sustained yield, but rather to not be able
to harvest the clams.
MR. HARTLEY related his belief that the department's research
was done in order to adjust harvest levels that led to
eventually not having anything to harvest.
REPRESENTATIVE JAMES surmised that when research illustrates
that there are less than the year before, then the harvest
should be reduced or the growing of the crop should be
increased. Therefore, both harvest reduction and increased crop
are required.
MR. HARTLEY agreed.
Number 1626
CHAIR McGUIRE turned to the issue of predator netting and
explained that the department faces a broad statute that
seemingly ties the department's hands in regard to predator
netting. However, there is some argument that the statute was
meant to limit oil and gas leasing and not address the
mariculture industry. She requested that Mr. Hartley discuss
some of the reports that have involved Dr. Hauser and discuss
the limited impact of predator netting.
MR. HARTLEY noted that Mr. Painter alluded to the Exxon Valdez
research that was performed in regard to repopulating beaches,
particularly in subsistence areas of Prince William Sound,
Nanwalek, and Port Graham. In conducting this project, ADF&G
sponsored the project and thus Dr. Hauser and ADF&G officials
went through an environmental assessment of the project, which
included a discussion of the effects of predator netting on the
surrounding areas. Basically, the report says that predator
netting is a nonfactor and won't cause any harm to any of the
animals. The predators that do utilize clams as part of their
food source can utilize clams elsewhere. This report directly
contradicts what Dr. Hauser included in his later [literature
review].
CHAIR McGUIRE pointed out that [Exxon Valdez research that led
to this] report was completed in 1995. Chair McGuire turned the
gavel over to Senator Taylor.
Number 1785
REPRESENTATIVE SCALZI expressed the need for the committee to
hear a bit of the comments from the Cook Inlet Keeper Program,
as well as comments/ findings from the Department of
Environmental Conservation (DEC) inspections of mariculture
farmers.
MR. HARTLEY explained that the Cook Inlet Keeper Program is
sponsored to maintain water quality in the Cook Inlet region and
to ensure a very clean environment. He recalled that the
program was sponsored by the oil companies as a result of
problems that existed in Cook Inlet. The Cook Inlet Keeper
Program is in favor of mariculture because mariculture cannot
occur without clean water. Once mariculture is in an area, the
water standard is established, which was borne out in court
cases in the State of Washington in the late 1950s and early
1960s. Mr. Hartley reiterated the need for clean water. He
also noted that DEC's PSP (paralytic shellfish poisoning)
testing has, perhaps, saved several people from getting ill
because products out of Kachemak Bay are tested once a week.
Several times the tests have shown PSP is in the water and that
results in the business being closed and warnings going out [to
the public].
Number 1960
MR. HARTLEY, in response to Vice Chair Taylor, explained that
there is a state-of-the-art shellfish hatchery in Seward. This
hatchery was built and supported by Exxon Valdez funds, and
sponsored by ADF&G. This hatchery provides an in-state source
of oyster and clam spat. He thought that this hatchery is the
only place in the United States where one could obtain
littleneck clam spat. In further response to Vice Chair Taylor,
Mr. Hartley agreed that the sale of clam spat is part of the
revenue supporting the hatchery. Part of the management plan
for the hatchery, as established by ADF&G, was that it had to
include littleneck clams, geoducks, and purple-hinged rock
scallops within its business plan. Therefore, the hatcheries
business plan was predicated on that as well as oyster
production. However, the department has made it very difficult
for anyone to do on-bottom aquaculture. In response to Vice
Chair Taylor, Mr. Hartley said that this regulation [banning on-
bottom mariculture] wouldn't shut down his operation. However,
if the hatchery isn't economically viable [due to this
regulation], then spat will have to be obtained from out of
state again.
VICE CHAIR TAYLOR expressed concern with regard to who would
purchase the spat if current and future farms are shut down.
Vice Chair Taylor mentioned that he was one of those involved
with forcing the money from the Exxon Valdez penalties into
projects such as the Sea Life Center and the hatchery.
Number 2141
SENATOR LINCOLN referred to a document regarding the Nanwalek,
Port Graham, Tititlek(ph) restoration that said, "The planting
of the seed of select beaches would be initiated May of '96,
would continue through November '99, and harvest of the planted
clams would commence 2001 and would continue through 2004." She
inquired as to the progress of this project.
MR. HARTLEY answered that the Port Graham portion of the project
is going great and is on schedule. He wasn't aware of any
problems with this project.
MR. PAINTER informed the committee that there were a number of
test plots that were put up in different areas, some of which
were located on stable beaches. Therefore, when the predator
netting was put in place and the beaches shifted around, it was
found that the predator netting resulted in a higher bed than
the rest of the beach because the predator netting was holding
the substrate in place.
VICE CHAIR TAYLOR announced that Ms. Fritts, ADF&G, was the next
witness.
Number 2343
ELLEN FRITTS, Deputy Director, Division of Habitat and
Restoration, Alaska Department of Fish & Game, said that she as
well as others on-line were available to answer questions.
VICE CHAIR TAYLOR recalled that at the last hearing the chair
made it clear that the hearing would be limited. He felt that
the process was going to be ongoing and involve discussions.
Therefore, he inquired as to why this is now a "fact de comple."
MS. FRITTS said that the department undertook an extensive 18-
month process during which there were public meetings and multi-
agency planning team [meetings] that reviewed the regulations,
statute, and the state constitution. During the public comment
periods, there was no significant difference in the kinds of
comments the department received. Furthermore, the department
provided a detailed response, dated February 6, 2001, to the
committee that listed the 28 different kinds of public comments
that were heard. At last week's ARR hearing nothing different
was heard. Prior to the committee requesting a hearing on the
matter, the regulations had been at the Department of Law for a
number of weeks. Ms. Fritts said, "We just did not hear
anything new and different and we did not accelerate or
decelerate what the Department of Law was doing. This [is]
based on a ... very clear law. We didn't stop them from doing
their job."
VICE CHAIR TAYLOR remarked that it wasn't a matter of stopping
the Department of Law from doing their job, but rather it was a
matter of courtesy and commodity between the executive and
legislative branches. "Actions that occurred ... since the last
hearing, to say that's disappointing is an understatement," he
said. He used the Department of Transportation & Public
Facilities' struggle with airport leasing regulations as an
example of how this committee worked well with a department on
difficult regulations. Vice Chair Taylor said, "I was totally
shocked when I was informed that those regulations had been
taken to the lieutenant governor and the lieutenant governor had
expedited them. I can't imagine that there's anything else
occurred other than an expediting of that. To suggest that it
was a matter of course and well it was going to happen anyhow,
is very, very concerning, I think, to all of us."
Number 2522
SENATOR LINCOLN quoted Lieutenant Governor Ulmer's letter dated
March 14, 2001, as saying, "At the time, I did not know that a
specific date had been set for another hearing on these
regulations." Therefore, she didn't believe that there is any
fault on behalf of the lieutenant governor.
VICE CHAIR TAYLOR said he wasn't suggesting that there was any
fault to be placed on the lieutenant governor's shoulders.
However, whomever carried the regulations for the department to
the lieutenant governor's office didn't bother to mention [the
fact that another meeting on the regulations was pending]. He
reiterated his concern with the speed with which the regulations
were signed into law.
Number 2630
RON LONG, Quetekcak Shellfish Hatchery, testified via
teleconference. Mr. Long shared the same concerns as Vice Chair
Taylor regarding the speed with which these regulations were
signed into law. He expressed further concern with the
department's [written] responses to Mr. RaLonde's charges. The
department's response to the four invasive species found on a
farm in Prince William Sound seemed to indicate that the species
were introduced by the farming activities. However, that isn't
the case because those species could have been introduced by any
number of activities. Although Mr. Long agreed with Mr. Hartley
that a little better stewardship could have been done, he noted
the possibility that the critical habitat area plan may need to
be revised because it has conflicting goals. The critical
habitat area plan has the goal, on the one hand, of maintaining
the sustained yield resource, and, on the other hand, making
that resource available to all users, except farmers. Mr. Long
was also troubled by the department's response regarding the
drift pattern. On one hand, the department seems to say that
farming activities won't enhance or seed adjacent beaches
because of current patterns within the critical habitat area
that will carry those seeds out of the area. However, another
part of the document maintains that the [drift pattern] is
important in the area so that the resulting larva from adult
clams on the farm site will enhance adjacent beaches and be
available for common use. Mr. Long pointed out that new
information is coming in. As mentioned earlier the EVOS study
and beach enhancement project show zero or near zero survival of
juvenile clams without predator netting, which has been
evidenced in Port Graham. "Again, it seems inconsistent to
suggest that ... the fact that predator netting will be excluded
in an enhancement project, suggests that the clams are a
expendable resource and that again is inconsistent with the
sustained yield principle." Mr. Long also pondered the urgency
with which these regulations were signed. Mr. Long remarked:
The entire regulatory structure for the rest of the
state is under a re-write right now; raising as many
questions as it is answers. And to do a thorough
analysis and get answers to those questions, is part
of the process to wind up with a workable set of
regulations that protects all the users, and protects
the interests of the farmers as well, and allows for
enhancement project. After that process is complete,
would seem to me to be the appropriate time to apply
the specifics to areas such as the critical habitat
area.
VICE CHAIR TAYLOR asked Mr. Long if he was concerned about the
economic viability of the Quetekcak Shellfish Hatchery in light
of this closure.
MR. LONG pointed out that there are no permitted littleneck clam
farms in the CHA and thus the immediate impact can't be
measured. However, over the future, the hatchery and applicants
have anticipated being able to conduct on-bottom farming
activities within a CHA, and therefore that would be critical to
the [hatchery's] viability.
JOHN AGOSTI, President, Alaskan Shellfish Growers Association,
testified via teleconference. He read the following testimony:
In December '99 many Alaskans testified in support of
on-bottom shellfish farming in Kachemak Bay at several
public hearings held by [ADF&G], specifically they
were hearings ... on both personal watercraft and on-
bottom farming in the Kachemak Critical Habitat Area.
At the Homer hearing itself, 50 percent more people
spoke in favor of on-bottom farming and ... the
favorable testimony highlighted the many
rehabilitative and enhancing benefits of aquatic
farming. We also pointed out that the present
management plan for the critical habitat [area]
specifically and repeatedly discusses ... permitting
aquatic farming in the bay. This January we've
learned that Kachemak Bay oyster farm applicants'
applications were summarily denied.
TAPE 01-8, SIDE B
MR. AGOSTI continued:
... department, to date, had involved one form of
aquatic farming, that of on-bottom farming, in one
specific bay, Kachemak Bay. Now we're learning that
suddenly all types of aquatic farming have been banned
from all critical habitat [areas] statewide. There
was no public explanation or public process and this
seems counter [to] the Kachemak Bay plan, which
specifically discusses permitting aquatic farming
presently. I would contend that this seems to violate
public process requirements of our state
administrative code. I would also feel that the
statutory mandate to maintain and enhance shellfish
populations and their habitats in the bay is not
happening. ... The littleneck clam population there
experience heavy recreational and natural predation
pressure with pronounced depletions or absences on
various beaches .... This is a concern of many
people, especially the residences there in the area
.... I would say the department's own data published
last summer shows that of 277 beach samples analyzed
over two years on 12 different beaches, three-quarters
of them had less than ten clams, legal or sub-legal
clams, per square foot. And that, ... I would
characterize as [a] depleted population. A quarter of
those samples had zero or only one clam per square
foot, which I would say is virtually nonexistent.
These data show that populations are very low on many
beaches around the bay .... Of those 277 samples,
only 6 percent had clam density equal to the levels
that are commonly reared on clam farms, ... which is,
for reference, is about 30 to 75 legal and sub-legal
clams per square foot.
MR. AGOSTI concluded:
One other point I'd like to make is that the
protection of public access of the shellfish resource
in the bay is mandated by the management plan,
includes all Alaskans not just the few people who
presently manage to get to the beaches to dig them. I
think the department's policy is effectively limiting
access to the relatively few who can manage to get to
the beaches. ... To draw a parallel, the allocation
of the majority of our state's fin fisheries operate
in recognition of the principle that access for the
greater public through the fin fisheries is greatly
increased by the commercial fisheries supply of
product to the greater public. This is being
prevented by the present policy that disallows aquatic
farming, which would make shellfish in the bay much
more widely available to a great demand.
Finally, I would like to conclude with a comment that
the department apparently wants to prevent even
specific research in the habitat designed to determine
exactly what effects may occur with aquatic farming in
Kachemak Bay. Twice in 1999, an application for a
research project was submitted to ... investigate the
ecological impacts of clam farming on a small plot of
beach in Seldovia Bay that has depleted of all clams.
This would have been the first research done in this
specific habitat. Instead of merely reviewing
literature and other areas, this research would've
specifically answered questions on what real effects
may happen in Kachemak Bay with clam farming. And the
department twice denied that. So, I would interpret
that as the department really does not want real
knowledge of the effects to occur to be made public.
Number 2747
JEFF PARKER, testifying via teleconference, informed the
committee that although he is a member of the Board of Alaska
Sport Fishing Association and the Anchorage Fish & Game Advisory
Committee, as well as Vice President of the State Council of
Trout Unlimited, he is speaking on his own behalf. The
aforementioned bodies haven't had an opportunity to consider
this issue. On this issue, he felt that there is a difference
in the existing mariculture in Kachemak Bay versus what is being
proposed. The proposal is to take certain lands, for purposes
of on-bottom farming, out of production as a public resource,
which is different from the in-water mariculture that exists.
From that he has three concerns. [He expressed concern that]
the [proposal] is an appropriation of clams from public to
private use and thus amounts to an exclusive use issue that
could raise constitutional questions that don't arise in other
forms of mariculture. Furthermore, there is the issue regarding
whether or not [the state's] resources are appropriated to a
specific set of people. He also expected that the Anchorage
Fish & Game Advisory Committee would have concerns regarding
predator nets.
MR. PARKER then turned to the issue of stewardship. He
explained that most of the stewardship issues arising in Cook
Inlet and Kachemak Bay arise because the resources in those
areas are already fully allocated. That is the case with salmon
and shellfish in those areas. The problems arising in relation
to sustained yield, conservation, and public use and dividing
the public use tend to arise when there is too much commercial
pressure on a limited resource. In the present situation, there
is a combination of commercial and recreational harvest and
allocation of a wild resource to those two groups, which is
similar to the situation in the salmon fisheries. However, the
proposal is different in that it would allocate certain areas of
wild and reared stock to a limited set of users. Therefore, Mr.
Parker felt that such a proposal would result in exclusive use.
Mr. Parker reiterated that the stewardship issue usually arises
when there is too much use, usually too much commercial use and
thus he hoped [the committee] would think about understanding
the department's actions.
Number 2566
MR. PARKER, in response to Vice Chair Taylor, affirmed that he
is familiar with the area being discussed. He then turned to
Vice Chair Taylor's question regarding his thoughts as to why
clams in the [Kachemak Bay] area have steadily declined over the
past six years. Mr. Parker informed the committee that the
Board of Fisheries has closed some beaches to commercial
harvest.
Number 2488
GARY SEIMS, President, Kachemak Shellfish Growers Cooperative,
testified via teleconference. Mr. Seims provided the following
testimony:
As the President of Kachemak Shellfish Growers
Cooperative, I'm concerned by the current closure for
new applications for aquatic farm sites in Kachemak
Bay, as well as these regulations closing on-bottom
aquatic farming. ... The diversity of product in
aquatic farming is important to the success of our
industry. Our environmentally friendly industry has
created jobs and economic growth where there was none
before. The shellfish that our cooperative members
provide is the only fresh product harvested year round
in Kachemak Bay for wholesale and retail seafood
markets. A hundred and twenty-five thousand dollars
in cooperative sales last year, is just a small
percentage of what the overall potential is. We have
15 members in the cooperative who supplement their
annual income with the revenues generated by these
aquatic farms. The ability to diversify to allow for
the farming of littleneck clams would create a more
sustainable industry with the benefit of more year
round jobs. Unless [the Alaska Department of] Fish &
Game changes the direction they are currently going
with the new regulations and closures, our members are
very concerned that the aquatic farming that we have
developed over the past 12 years may not be here after
the next permitting and lease renewal. The Kachemak
Shellfish Growers Cooperative believes that aquatic
farming is a benefit to the economic diversity of our
coastal community.
Number 2395
DEBBIE SEIMS, Coordinator, Kachemak Shellfish Growers
Cooperative, testified via teleconference. Ms. Seims informed
the committee that she regularly receives calls from businesses
wanting fresh Kachemak Bay clams. She pointed out that most of
the local markets and restaurants in the [Kachemak Bay] area are
forced to obtain their clams from other areas such as Puget
Sound and British Columbia, Canada. Ms. Seims felt that the
local markets should be able to obtain what they need year round
from Kachemak Bay.
LISA NOLAN, Owner, The Homestead Restaurant, had her letter
[included in the committee packet] read to the committee by Ms.
Seims. Ms. Nolan's letter reads as follows:
In the nine years that we have owned The Homestead
Restaurant, we have had the pleasure [of] serving
fresh clams, mussels and oysters from our pristine
Kachemak Bay. Our customers travel from Europe, Asia,
the lower 48 and the interior of Alaska to dine with
us. The well traveled customers tell us repeatedly
that the shellfish is the best that they have ever
enjoyed anywhere in the world, and the customer from
middle American that have grown up eating Mrs. Paul's
frozen fish filet take delight in eating the oysters
on the half shell. This is no small feat! The
Kachemak Bay shellfish are a rare and wonderful
product that needs to be nurtured.
I fell that I must address the need to cultivate and
support the [mariculture] in Kachemak Bay. Last week,
Lieutenant Gov. Fran Ulmer signed a regulation banning
clam farming in the bay. To coin an old phrase, this
... feels as though we are throwing the baby out with
the bath water. Regulations are needed to keep the
fisheries in check. However, banning yet another
source of the economic base in our area further rocks
this delicate balance. [Mariculture] has no negative
impact on the waters and surrounding lands; they use
no fertilizers, pesticides or heavy equipment and the
amount of acreage used is minimal.
We have watched while far too many of the other
natural resources disappeared from the bay because the
regulations came too late. Please, take the time to
examine the situation, the area and the wonderful
foods that are in our Kachemak Bay and make the
regulations that will provide the avenue to keep them
and the economic concerns all moving in a positive
direction for us all. A reasonable and working
compromise can be reached; a ban does not utilize, nor
protect this Bay's bounties.
Respectfully,
Lisa S. Nolan
[Punctuation provided.]
Number 2171
JIM REEVES, Attorney for the clam farming industry in Kachemak
Bay, testified via teleconference. He informed the committee
that the clam farming industry is merely four individuals who
reside in the Kachemak Bay area. These four individuals
responded to a policy to encourage the development of aquatic
farming in Kachemak Bay. That policy was adopted by the
legislature, affirmed in a number of statutes, and expressed in
some regulations adopted by several different departments. That
policy was very clearly expressed in the Kachemak Bay Critical
Habitat Area plan. Therefore, these individuals set out, over
two years ago, to obtain permission from the state government to
do a renewable resource project.
MR. REEVES informed the committee that he didn't believe the
timing of the filing of these regulations with the lieutenant
governor's office was coincidence. He saw the filing as an "end
run" around this committee in the hope that the committee would
find it unnecessary to scrutinize what the department had done.
MR. REEVES returned to the applications of the aforementioned
four individuals. These individuals waited a year before the
department issued decisions on their applications. Mr. Reeves
remarked, "We now know that the department disagrees with the
legislature's policy and objects to the idea of aquatic
farming." After the one year wait, the department denied the
applications. Therefore, these individuals requested a hearing
because under the applicable law, these individuals were
entitled to a hearing by an independent hearing officer who
would objectively scrutinize the situation and decide whether
the department was doing what the legislature authorized. These
individuals waited another year for a hearing. Now that these
individuals have approached the threshold of a hearing, the
department has "attempted to pull the rug out of the entire
operation by categorically prohibiting an activity that the
legislature ..., the state constitution ..., and that the
Critical Habitat Management Plan has authorized and encouraged."
MR. REEVES turned to the issue of separation of powers and noted
that he has been skeptical of the role of the legislature and
this committee, and their oversight of state agencies that are
administering state laws and promulgating regulations. However,
he said:
This is a classic example of a department that just
simply disagrees with what the legislature determined
as the policy of the State of Alaska. It just plain
disagrees with what the constitution and the statutes
say. And rather than doing it the honest way, by
coming to the legislature with a proposal to amend the
law to prohibit aquatic farming, and giving the
legislature the opportunity to make that policy
decision, the department tried to preempt the
legislature by adopting a regulation that is contrary
to the statutes. And they did it a manner that was
obviously, flagrantly, shamelessly designed to do an
end run around this committee in the hope that they
could do it without your scrutiny.
MR. REEVES related his clients' pleasure that they have this
committee and its legislators taking the time to determine what
happened and whether some action should be taken by the
legislature in response.
Number 1841
MR. REEVES, in response to Vice Chair Taylor, affirmed that [he
and his clients] are pursuing an appeal of the department's
decision of the denial of permit applications under the existing
statutes, regulations, and CHA management plan. That appeal is
pending. He noted his belief that the department's adoption of
the regulation is to "short-circuit" the appeal, in effect
terminate the appeal before there is a hearing.
VICE CHAIR TAYLOR related his understanding that if that is the
case, then the clients would lose even if they won the appeal
because the law would've been changed to prohibit the activity
of the appeal.
MR. REEVES agreed.
VICE CHAIR TAYLOR asked if the appeal was moving with some
dispatch, and thus could've been a motivating factor for the
department to expedite this matter.
MR. REEVES noted that the appeal was assigned to an appeal
officer named Roger Dubrock(ph), a former Southeast judge. A
pre-hearing conference was held with the hearing officer about
three weeks ago. The next step would've been to schedule a
hearing. Therefore, "the timing of this is curious," he noted.
VICE CHAIR TAYLOR announced that some committee members had to
leave due to other appointments. However, he noted that he,
Senator Lincoln, and Representative Scalzi were still in
attendance.
Number 1720
ROBERTA HIGHLAND, Kachemak Bay Conservation Society, testified
via teleconference. Ms. Highland inquired as to why there is no
Homer biologist online to answer some of the questions and
comments. She alluded to the notion that commercial clamming
probably had something to do with the decline of clam
populations. Ms. Highland wondered whether there has been any
new information during this hearing process because it seems
that this is rehashing things that have already been done in the
prior 18 months.
MS. HIGHLAND announced that the Kachemak Bay Conservation
Society supports the department's decision to ban on-bottom clam
farming in Kachemak Bay for the following reasons:
[Kachemak] Bay is a critical habitat [area] and it
does merit special attention. And in my opinion, clam
farming flies in the face of a critical habitat
designation. Also, [Kachemak] Bay is a very popular
destination and is already fully utilized for claming,
fishing, and recreation, including the public beaches
which would be literally placed into private
ownership. Number three, private clam farms would
place existing publicly owned beaches off limits to
all other clammers. The issue has had thorough study
and review by [ADF&G] and extensive public review and
comment. And I say, let the experts do their job.
Last-minute intervention by the legislature in this
process seems, to me, unwarranted and poor public
process. Number six, there is no limit on how many of
these permits will be issued. How much of our private
beaches will be privatized for the economic interests
of just a few? Who would be responsible for
monitoring the impacts of these commercial clam farms?
Certainly, there will not be any state money
available. And, as we know, asking permit holders to
monitor themselves doesn't work. So, at this point, I
say that these beaches should remain public for all to
use and be allowed to replenish its numbers in a
natural way.
VICE CHAIR TAYLOR announced that the committee was out of time
and thus he suggested that those who weren't able to provide
testimony today could offer written testimony for the record.
Number 1528
SENATOR LINCOLN inquired as to the plan with regard to going
forward on this. She recalled that Chair McGuire had mentioned
that short of repealing the regulations, the committee can do
nothing else but hear testimony.
[Upon Chair McGuire's return, Vice Chair Taylor returned the
gavel to her.]
CHAIR McGUIRE announced that she would leave it up to the
committee as to whether there is interest in pursuing this.
Short of legislation repealing the regulations, the committee
can't do anything. However, she didn't believe that the
decision to pursue this or not should be made now but rather
another meeting should discuss that option in further detail.
Number 1341
SENATOR TAYLOR agreed with Chair McGuire that this issue has
been rendered moot due to the actions of the department.
Senator Taylor said:
I believe there's only one appropriate response to
that and that's a budget we still have in front of us.
And if this legislature doesn't have the courage to
assert its role as the third ... branch of government
around here in light of that type of arrogance, then
we all ought ... to ... stay home because you're not
worth the salt to have you here. Either you're going
to stand up for what this legislature is all about and
assert the right of the people to have an open hearing
and a decent process and have some recourse for giving
direction to the executive branch, which is what we do
by policy - that's why we pass these laws in the very
first place -....
SENATOR LINCOLN said that although she could understand the
frustration, she didn't believe that the legislature should look
to further punish those that receive the benefit of the ADF&G
budget. "I just beg of this committee, let's not punish our
Alaskans," she requested.
Number 1197
CHAIR McGUIRE noted that she has been asked why the Joint
Committee on Administrative Regulation Review is spending so
much time on mariculture. To that she pointed out that this
committee's job is to oversee the regulatory process and ensure
that the regulations comport with the legislature's original
intent. Therefore, she felt that if legislation to repeal the
regulations isn't drafted, then the committee, at the very
least, should draft a letter that outlines the department's
interpretation of two key statutes. Those statutes being the
one dealing with the critical habitat area and the one dealing
with the Aquatic Farming Act. Chair McGuire said that she is
trying to interject the legislature into the process to review
the intention of the aforementioned statutes. Although she
understood that a process was in place with these regulations,
she was disturbed that the regulations were filed when the
committee raised issues. There should've been respect for the
legislature to at least finish the hearing and listen to the
concerns of those in Kachemak Bay whose livelihoods will be
impacted. Therefore, in spite of the fact that this process may
have been deemed moot, she wanted to continue the public
process.
Number 0975
REPRESENTATIVE JAMES remarked that she has been involved with
regulations issues for nine years and it, the [regulation]
system, is a flawed system that doesn't meet public input. She
mentioned that the negotiated rulemaking law should have been
utilized with this issue. Representative James emphasized that
she is present to protect habitat, environment and to have clean
water, air, et cetera. However, that doesn't disallow economic
development. There have to be jobs to make a living in this
state, and it has to be done correctly. That was precluded in
this case, which is upsetting. If the committee files
legislation to annul these regulations, then there will be
discussion regarding [the intent of the CHAs and the Aquatic
Farming Act]. She expressed her desire to [file legislation].
REPRESENTATIVE JAMES remarked that the biggest problem with the
regulations process is that people testifying don't know whether
anyone is listening. There is no response to the witnesses.
Although she isn't happy with this situation, she acknowledged
that there are always at least two sides to the story.
Therefore, she noted her willingness to listen to all sides of
the story, which she felt would be accomplished when there is
legislation before the committee.
ADJOURNMENT
There being no further business before the committee, the Joint
Committee on Administrative Regulation Review meeting was
adjourned at 4:15 p.m.
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