01/20/2006 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB328 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 328 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
January 20, 2006
8:36 a.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Co-Chair
Representative Bill Thomas, Co-Chair
Representative John Harris
Representative Jim Elkins
Representative Mary Kapsner
Representative Woodie Salmon
MEMBERS ABSENT
Representative Peggy Wilson
OTHER LEGISLATORS PRESENT
Senator Gary Stevens
Representative Kurt Olson
COMMITTEE CALENDAR
HOUSE BILL NO. 328
"An Act prohibiting mixing zones in freshwater spawning waters."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 328
SHORT TITLE: BAN MIXING ZONES IN SPAWNING AREAS
SPONSOR(S): REPRESENTATIVE(S) SEATON, OLSON, GATTO, LEDOUX
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) FSH, RES
01/20/06 (H) FSH AT 8:30 AM CAPITOL 124
WITNESS REGISTER
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB328.
MCKIE CAMPBELL, Commissioner
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB328.
KERRY HOWARD, Director
Office of Habitat Management and Permitting (OHM&P)
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB328.
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as prime sponsor of HB 328.
RICHARD HAHN
Soldotna, Alaska
POSITION STATEMENT: Testified in support of HB 328.
REBECCA ROBBINS, Policy Coordinator
Yukon River Drainage Fisheries Association (YRDFA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 328.
JOHN TOPPENBERG, Director
Alaska Wildlife Alliance (AWA)
Soldotna, Alaska
POSITION STATEMENT: Testified in support of HB 328.
GEORGE MATZ, Representative
Cook Inlet Alliance
Homer, Alaska
POSITION STATEMENT: Testified in support of HB 328.
NORMAN VAN VACTOR, Manager
Peter Pan Seafoods, Inc.
Bristol Bay, Alaska
POSITION STATEMENT: Testified in support of HB 328.
ACTION NARRATIVE
CO-CHAIR BILL THOMAS called the House Special Committee on
Fisheries meeting to order at 8:36:00 AM. Representatives
Thomas, LeDoux, Salmon, and Elkins, were present at the call to
order. Representatives Kapsner and Harris arrived as the
meeting was in progress. Also present were Senator Gary Stevens
and Representative Olson.
HB 328-BAN MIXING ZONES IN SPAWNING AREAS
8:36:17 AM
CO-CHAIR THOMAS announced that the only order of business today
would be HOUSE BILL NO. 328 "An Act prohibiting mixing zones in
freshwater spawning waters." He allowed that three state
departments would open testimony, followed with a presentation
by a prime sponsor of the bill, continuing with testimony from
two fishing groups, and finally public witnesses, time
permitting. He expressed his intention to hold the bill in
committee for continued public testimony at next weeks scheduled
meeting.
8:39:45 AM
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), began by stating that the
current regulations provide a prohibition on mixing zones in
spawning areas. She explained that these prohibitive
regulations are "not fair" to facilities that invested in
developing facility infrastructure, and that maintained a permit
from DEC for which [effluent] discharge into an authorized
mixing zone in an area fish subsequently inhabited such that the
zone created a spawning area. She explained that under the
current regulations, DEC is precluded from authorizing a
continued use permit given this scenario. Ms. Kent related that
mixing zones are important to communities across the state.
There are over 400 authorized mixing zones in Alaska of which
157 serve municipal sewage treatment facilities.
8:41:09 AM
MS. KENT explained that DEC is charged with providing water
quality standards that are designed to protect the multiple uses
of Alaskan waters: drinking water; public health safety and
welfare; growth and propagation of aquatic life; domestic,
commercial and industrial uses; and recreational uses. The
water quality standards are the regulatory criteria used to
provide appropriate water purity to protect these multiple uses.
She described a mixing zone as an area where treated wastewater
is discharged and allowed to mix with a [non-treated] water
body; the water quality standards may be exceeded within a
permitted mixing zone but have to be met at the edge of the
mixing zone. She noted that DEC's goal is to protect all uses
of the entire water body. She highlighted that mixing zones
exist in accordance with the federal Clean Water Act and stated
that the Environmental Protection Agency (EPA) has published
guidance standards regarding methods to establish mixing zones.
8:42:28 AM
MS. KENT explained how mixing zones are engineered and the
parameters that DEC employs to authorize them. She then
explained that, once authorized, the permittee may be required
to monitor their discharge and the surrounding waters of the
mixing zone to ensure compliance to regulatory standards. In
addition, DEC has an inspection and monitoring program under
which it takes appropriate enforcement actions. Ms. Kent
pointed out that mixing zones have been utilized in Alaska for
the past 30 years, and are only managed by permitted wastewater
facilities which are subject to public review and comment.
8:43:14 AM
MS. KENT directed the committee's attention to the DEC packet
handout number 3 entitled, "Division of Water, Water Quality
Standards, 2003-2006 Triennial Review." Ms. Kent proceeded by
reading the following bulleted points:
In determining whether to authorize a mixing zone, DEC
must consider:
·the characteristics of the receiving water
·the characteristics of the effluent
·the effects, including cumulative effects of multiple
discharges, along with nonpoint sources of pollution
on the uses of the water
·any measures that would mitigate potential adverse
effects to aquatic resources
·any other relevant factors
In order to authorize a mixing zone DEC must find that
the:
·effluent will be treated to remove, reduce and
disperse the pollutants using the most effective
methods that are technologically and economically
feasible, at a minimum consistent with statutory and
regulatory treatment requirements
·designated and existing uses of the waterbody as a
whole will be maintained and protected
·overall biological integrity of the waterbody will
not be impaired
·mixing zone is as small as practicable
To obtain a mixing zone approval, the mixing zone can
not
·result in a toxic effect in the water column,
sediments, or biota outside the boundaries of the
mixing zone
·create a public health hazard that would preclude or
limit existing uses of the waterbody for water supply
or contact recreation
·preclude or limit established processing activities,
commercial, sport, personal-use, or subsistence fish
and shellfish harvesting
·result in a reduction in fish or shellfish population
levels
·result in permanent or irreparable displacement of
indigenous organisms
·adversely affect threatened or endangered species
except as authorized under the Endangered Species Act
·form a barrier to migratory species or fish passage
·contain pollutants that bioaccumulate,
bioconcentrate, or persist above natural levels in
sediments, water, or biota
·present an unacceptable risk to human health from
carcinogenic, mutagenic, teratogenic, or other effects
·settle to form objectionable deposits
·produce floating debris, oil, scum and other material
in concentrations that form nuisances
·result in undesirable or nuisance aquatic life
·produce objectionable color, taste, or odor in
aquatic resources harvested from the area for human
consumption
·cause lethality to passing organisms
·exceed acute aquatic life criteria beyond a smaller
initial mixing zone near the outfall
8:46:07 AM
MS. KENT explained that mixing zones are integral to the
operation of facilities such as sewage treatment plants or
seafood processors, who discharge waste water to a surface water
body. She directed the committee's attention to page 4 of the
DEC handout, which contains a pie chart of mixing zones in
Alaska and names the six statewide usages in order of
importance: Municipalities, seafood processing, placer mines,
oil and gas related facilities, larger mines, and a fertilizer
plant.
8:46:50 AM
MS. KENT proceeded to page 5, and provided examples of three
types of mixing zones in current operation. She detailed the
profiles of a general seafood processing facility; the
Mendenhall Wastewater Treatment Plant, Juneau; and the Soldotna
Wastewater Treatment Facility, Soldotna.
8:48:36 AM
MS. KENT pointed out that many types of wastewater, given
today's technology, could meet water quality standards at the
end of the pipe [eliminating the need for the mixing zone].
However, she noted, that this level of treatment can be
prohibitively expensive for the permittee. She explained that
mixing zones are considered a regulatory tool to keep treatment
costs reasonable while protecting human health and the
environment.
8:49:06 AM
MS. KENT stated that the department's federally required
triennial review revealed, in part, the need for the proposed
changes. She said that DEC's existing regulations contain a
prohibition on mixing zones in spawning areas of streams and
rivers with anadromous fish, and some specifically listed
resident fish. Subsequent to the addition of the aforementioned
prohibition being added to the DEC regulations in 1995, there
were various attempts to provide for exceptions, although none
were adopted. She pointed out that the review process, covering
the potential changes to the mixing zone regulations, allowed
161 days for public comment.
MS. KENT stated three reasons that DEC has proposed these
changes. First, the prohibition on mixing zones in spawning
areas goes beyond what is scientifically necessary to protect
fish, and many protections for fish already exist. Second, the
existing regulations present an unfairness for permittees who
have invested in a facility, received a mixing zone permit, and
subsequently experienced the zone transforming into a spawning
area, resulting in costly and lengthy re-permitting processes.
Third, the current regulations do not reflect the integrated
process by which DEC synchronizes with Alaska Department of Fish
& Game (ADF&G), and the Department of Natural Resources (DNR),
utilizing combined authority to identify spawning areas and
protect fish/habitat.
8:50:43 AM
MS. KENT, addressing the "unfairness" reference, described the
Valdez sewage treatment facility, which now has salmon spawning
in its manmade discharge ditch. She also described the Palmer
sewage treatment plant that discharges into the Matanuska River,
which now supports a salmon run in its mixing zone. She went on
to discuss the Pogo mine, which discharges its domestic
wastewater into the Goodpaster River and the challenges that
mining officials faced in efforts to comply with the existing
regulations. Ms. Kent explained the "convoluted and costly
efforts" that each of these situations present and the
difficulties involved for the named parties to receive and renew
their mixing zone permits.
8:52:48 AM
MS. KENT directed the committee's attention to page 1 of the
packet and explained that, for purposes of discussing the
proposed regulations, she would use the term "non-salmon" for
"other specifically listed fish." She stated that the revised
regulations have retained the prohibition on mixing zones and
spawning areas of all fresh waters for salmon, with the only
change being the addition of lakes to the list. For non-salmon,
she continued, the prohibition was also retained for all fresh
waters, again adding lakes, but allowing for two potential
exceptions.
MS. KENT explained that the first exception allows DEC to
authorize a mixing zone in a non-spawning area, but only where
all water quality standards for protection of aquatic life are
met. Page 6, of the handout, she pointed out, provides a
comparison of drinking water criteria to aquatic life criteria
in order to illustrate how implementing this exception would not
have an adverse effect on fish, but would allow DEC to authorize
a mixing zone in a non-salmon spawning area.
8:54:43 AM
MS. KENT described the second exception in which DEC could
authorize a mixing zone in a non-salmon spawning area provided
that ADF&G or DNR has approved a mitigation plan in accordance
with the appropriate department's regulatory requirements. She
explained that in cases where a non-spawning waterway
subsequently becomes a spawning area, DEC would be allowed to
reauthorize the mixing zone permit so long as all other
provisions of the regulations are met. The aforementioned will
allow the Valdez and Palmer sewage treatment facilities to
continue to operate without costly facility reconstruction.
8:55:40 AM
MS. KENT reiterated DEC's position that by effecting the
proposed regulations: mixing zones can be appropriately
authorized in spawning areas; fish can be protected; and that
protections may go beyond what science dictates as necessary.
She maintained that HB 328 and DEC's regulations take similar
approaches to prohibiting mixing zones in salmon spawning areas,
however, for non-salmon species, the two differ. She explained
that HB 328 proposes to prohibit mixing zones in non-salmon
spawning areas, whereas DEC regulations rely on sound science
and existing ADF&G and DNR protection policies [to allow
appropriate water body usage]. She pointed out that HB 328
would allow a mixing zone only in new manmade waterways where
fish have begun to spawn, but would disallow a mixing zone in
natural waterways which later become spawning areas. The DEC's
revised regulations provide the flexibility that would allow for
resolution of both of these special situations. The situations
being experienced, by the municipalities of Valdez and Palmer,
she concluded, could be reasonably resolved utilizing the
proposed regulations.
8:57:31 AM
COMMISSIONER CAMPBELL, Commissioner, Alaska Department of Fish &
Game (ADF&G), stated that the proposed regulations provide fish
all the necessary levels of protection without needlessly adding
layers of regulation that impinge on other uses of the
waterways. He conceded that the inclusion, in HB 328, of fish
spawning in lakes is an addition that heretofore has been
needed. He pointed out that as long as the state has been
regulating activities in spawning areas, the identification of
what is a spawning area has been done spatially and temporally.
These practices focused on ascertaining where and when a given
activity is occurring in a watershed and will remain unchanged
in the proposed DEC regulations as well as under HB 328.
9:02:32 AM
COMMISSIONER CAMPBELL stated that it has always been past
practice, but not regulation, to ensure that wastewater
discharges do not adversely affect spawning areas. He noted
that in the proposed regulations, no discharge will be allowed
which can adversely effect the future capability of that area to
be used for spawning. He opined that the revised regulations do
not present a loophole, but are an improvement toward regulating
usage and providing spawning area protection. Further, he
charged the committee to closely review the new DEC regulations
and discern that, through the process, the administration has
done a responsible job in creating regulation that both protects
fish and allows for appropriate other usage. He maintained that
creating statute around this regulatory issue is unnecessary and
may set a precedent for implementing regulations in the future.
9:06:27 AM
REPRESENTATIVE SALMON asked Commissioner Campbell if he is
supporting HB 328 or the old DEC regulations.
COMMISSIONER CAMPBELL clarified that his testimony is in support
of the new DEC regulations. He stated that he believes the
mixing zone matter is "best and most fully addressed in
regulation" and that "there are at least some considerable
political risks to the fish" by pursuing it [implementing
statute]. Responding to other questions, he stated that in
recent years the Division of Habitat Protection was transferred
to DNR, which established the previous long-term ADF&G personnel
as DNR staff. He opined that this reorganization has proven a
benefit to the departmental workings. He further answered that
ADF&G is not staffed to patrol each mixing zone, but is
adequately staffed to "pay attention to issues that seem to be
of particular concern to us." He explained that it is ADF&G's
area of interest, but not the department's jurisdiction, to
implement case-by-case checks. He maintained that the
departments work closely together to oversee areas of concern.
9:10:24 AM
KERRY HOWARD, Director, Office of Habitat Management and
Permitting (OHM&P), Department of Natural Resources (DNR),
stated that OHM&P has 37 biologists statewide, and described how
the combined efforts of the involved departments multiply the
effectiveness of the biologists' work. Given the synergistic
relationship of the departments, she said she has not, nor does
she expect to experience, oversight problems. The OHM&P staff
does significant "up front" reviews on applications, although
the staff is not expansive enough to physically view each
project that is permitted. For projects that "push the
envelope", that is require regular monitoring, arrangements are
made with the companies to provide data/reports to the
department, or the department may dispatch staff to the site.
9:13:25 AM
REPRESENTATIVE KAPSNER inquired as to the number of mixing zone
applicants prior to the regulations being changed, and if there
has been any difference realized in the acceptance/denial level
of applications following the change in regulations.
MS. HOWARD explained that wastewater discharge permits are
renewed on a five-year basis, which translates to one fifth of
the existing facilities [listed in the packet] coming due for
permit renewal in any given year. Additionally, she added,
every year realizes new project applications.
COMMISSIONER CAMPBELL clarified that the old regulations are in
effect. He opined that he did not expect to see any
[significant] increase in the number of applications approved as
a result of adopting the proposed regulations. He stated that
given the continued mitigation requirements and strict
standards, applicants will not find it easier to receive
permits; the process will remain stringent.
9:16:26 AM
REPRESENTATIVE KAPSNER asked if there might be potential for a
single operation, with the possibility to cause "devastating
[environmental] effects" to receive approval.
COMMISSIONER CAMPBELL assured the committee that such a scenario
would not be a possibility. He pointed out that any exceptions
require an adequate mitigation sequence, which has been in
place, with ADF&G, for decades.
9:18:38 AM
REPRESENTATIVE SEATON asked how many freshwater mixing zones
exist, the number that require constant monitoring, and the
level of inspections conducted in the last year.
MS. HOWARD recollected that a few of the seafood processors, all
of the placer mines, and the three large mines discharge to
fresh water. In further response, she stated that monitoring
requirements are based on the potential risk to the environment
and differ between permits. Also, DEC shares the permitting and
inspection requirements with EPA. She offered to provide the
exact numbers at a later time.
9:20:20 AM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, as prime
sponsor, explained the differences in the current versus the
proposed DEC regulations, in regard to fish specifications and
relating to spawning areas. He went on to explain that HB 328
disallows mixing zones in any spawning areas, and expands the
number of fish species protected under DEC regulations. He
pointed out the public concern for protecting the vitality of
Alaska's fish species and marketability, and indicated the large
packet of support accumulated for HB 328. He further explained
that HB 328 allows that a settling pond, once constructed and
subsequently inhabited by fish, would not involve
reclassification requiring the permittees to apply for an
exception, but instead allow the facility to continue seamless
operation under their original mixing zone permit. He pointed
out that, under the proposed regulations, temporal permits could
present a problem. A company providing mixing zone information
to DEC for permitting purposes might observe a stream mid-winter
[non-spawning season] and note no fish spawning, resulting in a
temporal permit being granted. This permit could potentially be
extended and re-permitted ad infinitum under the proposed
regulations. With the appropriate statutory definition, he said
he expects to be able to eliminate this sort of scenario.
9:24:49 AM
REPRESENTATIVE SEATON declared that the intent of HB 328 is to
ensure that Alaska's waters and fish species remain healthy and
vibrant. He pointed out that the oil companies have stated that
they do not want or need regulatory changes to the mixing zone
requirements, and that the majority of the mines do not require
mixing zones. However, he warned the committee to be aware of
the different environmental impacts and concerns that placer
mines create. Suspended solids are the main concern with these
mines. He pointed out that a separate section of DEC regulates
the site-specific criteria required to address the discharge
from placer mines. However, he reminded the committee that for
the purpose of HB 328, only freshwater and spawning areas, where
currently there are no mixing zones, are being addressed.
9:27:42 AM
REPRESENTATIVE HARRIS asked if there is any on record opposition
to HB 328.
REPRESENTATIVE SEATON acknowledged that a letter dated January
10, 2006, was received from the [Alaska Miners Association,
Inc.]. He summarized that the letter expressed a general
concern for mines to maintain the ability to apply for mixing
zones in spawning areas. In addition, he stated that the Donlin
Creek Mine has been the only mine to contact him and relate that
working within the site-specific exemptions has proven
difficult. He clarified that the only exemption for discharge
of a mixing zone into a spawning area, which HB 328 allows,
would be for a man-made ditch or a settling pond. These man-
made waterways, as HB 328 provides, would never be reclassified
as spawning areas, as is the current problem in the Valdez area.
However, he professed the need to include language in HB 328
which would exempt municipalities even though they may represent
discharge into a natural water system. He envisions that these
situations can be handled within the bill.
REPRESENTATIVE SALMON questioned if larger watersheds [migratory
routes versus spawning areas], such as the Kuskokwim and Yukon
Rivers, would be protected from harmful discharge under HB 328.
REPRESENTATIVE SEATON responded that the current regulations
allow for mixing zones to be applied for in non-spawning areas,
and this bill does not go further than what is already in place
for those [migratory] waterways. In response to further
questions, he pointed out that establishing a time limit for
municipalities to become compliant with water quality standards
rather than issuing random waivers might be a point to review,
as it is not part of what HB 328 currently proposes. Also,
regarding deadlocked/stocked lakes, he said that introduced
species would not necessarily profit from HB 328; the lake must
represent a spawning area of fish species specifically listed
for protection in the bill.
REPRESENTATIVE KAPSNER asked for a definition of the following
terms in the proposed regulations: "technologically and
economically feasible", "significantly adverse levels", and
"spatially and temporally".
MS. KENT referenced the proposed DEC regulations and read number
[18 AAC 70.] 240 (c) (1), [packet page 1]. She explained that
minimum treatment requirements are established by both federal
and state regulations. Once these basic requirements have been
met, this language provides DEC the ability to require treatment
that may go beyond the minimum standards as long as it is
technologically and economically "doable." The determination of
what is technologically and economically feasible is based on
the specific types of discharge and what has been employed
elsewhere to treat similar contaminants. She explained that
there are processes that, although proven in the laboratory,
could not economically be employed in actual operations. For
example:
We have the technological capability to treat sewage
to drinking water levels but I don't think you or I
want to pay the amount it would take to flush a toilet
each time, to achieve that standard.
9:39:50 AM
MS. KENT addressed the regulatory language [18 AAC 70.240
(d)(1)] used to describe acceptable adverse levels of pollutants
in a mixing zone. She explained that DEC has established a
risk-based level for human health, and this regulation prohibits
the pollutants exceeding that level.
9:41:49 AM
COMMISSIONER CAMPBELL explained that the terms spatially and
temporally [18 AAC 70.240 (j)] were added to the proposed
regulations to clarify what the process would be for determining
a spawning area. To illustrate, he offered that placer mines
operate under timing restrictions to avoid [disturbance of]
spawning areas primarily for grayling. The areas are defined as
spawning areas, disallowing discharge or physical disturbance,
when spawning fish, eggs, or alevins are present. He stated
that nearly all placer mines discharge, under this definition,
save for the period of time, about one and one-half months, that
grayling are spawning.
9:44:49 AM
REPRESENTATIVE SEATON requested that the administration provide
him the correct and extensive definition of spawning, beyond
what the administrative code supplies. He also requested
written clarification that "temporally mixing zones in salmon
... spawning areas would not then be issued for the other times
of the year." Additionally, he requested information on
temporal permits that have been issued since 1995, and asked
that the report distinguish between a temporal permit that would
provide access for logging type work [creating temporary stream
disruption] versus a continuous pollutant discharge type mixing
zone.
9:46:34 AM
RICHARD HAHN stated support for HB 328, but expressed concern
about the temporal permit description in the proposed DEC
regulations. He stated that spawning streams are year round
hatcheries and that "no ... private hatchery would allow any
kind of pollution dilution of its water." He said that statute,
allowing for the possibility of court settlement, will better
serve to protect spawning areas.
9:51:46 AM
REBECCA ROBBINS, Policy Coordinator, Yukon River Drainage
Fisheries Association (YRDFA), stated opposition to the new DEC
regulations and support for HB 328. She described the Yukon
River fisheries, how the communities of the areas depend on
those fisheries for personal and commercial use, and she
expanded the scope to include all species of fish common to the
Yukon River area. She said that mixing zones and water quality
standards, as allowed in the proposed DEC regulations would:
provide for levels of pollution otherwise prohibited; pose a
threat to anadromous and freshwater fish; compromise Alaska
salmon product marketing; impact the subsistence food supply for
humans as well as sled dogs; impair departmental accountability;
compromise protection for non salmon species; allow for spawning
ground permits to be granted on a mitigation plan proviso; and
tender placer mine impacts on grayling habitat. The YRDFA views
HB 328 as a means for continued and expanded protection of the
Yukon River fishery, she related.
9:54:08 AM
JOHN TOPPENBERG, Director, Alaska Wildlife Alliance, said that
the current regulations are unclear. He asked what is meant by
the regulatory reference to "they cannot represent an
unacceptable risk to human health"; how is this risk defined and
will that threshold change with new biomedical discoveries.
Further, he asked should such a standard change occur, will
those experiencing subsequent health consequences have civil
recourse. He asked whether fisheries would be subject to
similar potential problems. He also questioned the statement
that the department does not have staff necessary [to conduct
inspections], which he said is cause for concern in regard to
the potential abuse [of the system]. He opined that statute
would clarify and take care of the current regulatory loopholes.
9:56:07 AM
GEORGE MATZ, Representative, Cook Inlet Alliance (CIA), stated
support for HB 328, by paraphrasing from the following written
remarks [original punctuation provided, with some formatting
changes]:
The Cook Inlet Alliance wants to thank you for your
attention to constituent concerns regarding mixing-
zone regulations and for introducing HB 328 as a
practical, no nonsense solution to this dilemma.
Even though the Department of Environmental
Conservation (DEC) adopted modified mixing zone
regulations earlier this week, we think HB 328 is
still needed for two compelling reasons:
to eliminate ambiguity and possible loopholes that
still exist with DEC's adopted regulations, and
to protect spawning areas for all species of
anadromous fish as well as resident fish.
As you know, there have been a few instances where a
wastewater discharge permit was issued that allowed a
mixing zone and afterwards, salmon started spawning in
the zone. While these situations obviously need
attention, regulations proposed twice by DEC to
correct the problem were essentially throwing the baby
out with the bath. The regulations that DEC adopted
th
on January 12 are less objectionable with respect
only to salmon, but still allow open-ended questions
that could turn into loopholes. This lack of
certainty gives the impression that a wastewater
discharge permit is a negotiated process, not one to
meet a specified standard of water quality. Four
problems we see are:
1. Who defines a spawning area? The adopted
regulations say that DEC will defer to the Department
of Natural Resources "or" the Department of Fish and
Game. These two departments have different missions
and often different perspectives on resource
development/conservation issues, which is the way it
should be. Putting "or" in the regulations creates a
situation where DEC could arbitrarily decide which to
pick, thereby introducing bias into the permit
process.
2. Spawning areas need year around protection. These
areas are used throughout the year for incubation and
rearing as well spawning. Nevertheless, the adopted
regulations leave open to question the spatial and
temporal definition of a spawning area. Any attempt
at narrowly defining a spawning area might benefit a
permit applicant, but not water quality or fish.
3. DEC's regulations do not describe what happens
when a wastewater discharge permit is requested for a
water body that is not in the Catalog of Waters
Important for Spawning, Rearing or Migration of
Anadromous Fishes. As described on DF&G's web site,
"The Catalog and Atlas are important because they
specify which streams, rivers and lakes are important
to anadromous fish species and therefore afforded
protection under AS 41.14.870. Water bodies that are
not 'specified' within the Catalog and Atlas are not
afforded that protection…. Based upon thorough
surveys of a few drainages it is believed that
[specified water bodies] represents less than 50% of
the streams, rivers and lakes actually used by
anadromous species."
While large projects that need an Environmental Impact
Statement may provide this information if it did not
previously exist, our concern is more about the
cumulative impacts from many smaller projects that
need wastewater discharge permits but don't have the
means or requirement to undertake expensive fish
habitat studies. If mixing zones in spawning areas
are to be allowed, the Catalog needs to be completed.
Hence, the fiscal impact of allowing mixing zones for
anadromous fish other than Pacific salmon should have
been included in this regulation.
4. DEC's adopted regulations are unnecessarily
convoluted. Section (f) says that "a mixing zone will
not be authorized in a spawning area for" several
species of fish, but then says in (g) that it "may
authorize a mixing zone in a spawning area" for these
very same species, but certain conditions have to be
met. But if they can't be met, a mitigation plan is
acceptable "using the methods established in 11 AAC
195.010." When you read the Catalog of Waters
Important for Spawning, Rearing or Migration of
Anadromous Fishes referred to in 11 AAC 195.010, you
don't find any methods. The closest thing you find is
a section that describes the information needed when
applying for a Fish Habitat Permit. This falls short
of being a method.
Because of its obvious importance, the mixing zone
issue needs to be firmly resolved via legislative
statute, not confusing administrative regulation.
What you propose in HB 328 is a simple, straight-
forward resolution to this problem. It provides a
clear policy statement that should become law.
Furthermore, HB 328 protects the spawning areas for
all species of anadromous fish (not just Pacific
salmon) as well as resident fish. Interest in this
issue extends to those who sport and subsistence fish
as well as those who commercially fish and are
primarily interested in salmon. Sport and subsistence
fishers want a sustainable harvest from clean,
unpolluted water of all species of anadromous fish as
well as resident fish. Without HB 328 that might be
jeopardized in areas where mixing zones are allowed.
We thank you for this opportunity to testify.
9:59:47 AM
NORMAN VAN VACTOR, Manager, Peter Pan Seafoods, Inc., stated,
echoed Ms. Robbins concerns, in his support of HB 328, and
stated, "If it ain't broke, why are we trying to change
something." He said he opposes the proposed DEC regulations,
and expects that HB 328 will close some significant regulatory
loopholes.
[HB 328 was held over.]
10:01:13 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 10:01
a.m.
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