Legislature(2023 - 2024)GRUENBERG 120
03/23/2023 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB95 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 95 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 23, 2023
10:00 a.m.
MEMBERS PRESENT
Representative Sarah Vance, Chair
Representative Ben Carpenter
Representative Craig Johnson
Representative Louise Stutes
Representative Rebecca Himschoot
MEMBERS ABSENT
Representative Kevin McCabe
Representative CJ McCormick
COMMITTEE CALENDAR
HOUSE BILL NO. 95
"An Act relating to designation of state water as outstanding
national resource water; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 95
SHORT TITLE: NATL. RES. WATER NOMINATION/DESIGNATION
SPONSOR(s): REPRESENTATIVE(s) RAUSCHER
03/06/23 (H) READ THE FIRST TIME - REFERRALS
03/06/23 (H) FSH, RES
03/23/23 (H) FSH AT 10:00 AM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE GEORGE RAUSCHER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As the prime sponsor, presented HB 95.
RYAN MCKEE, Staff
Representative George Rauscher
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided further explanation of HB 95, on
behalf of Representative Rauscher, prime sponsor.
RANDY BATES, Director
Division of Water
Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: Provided invited testimony in support of HB
95 and answered questions.
LEILA KIMBRELL, Executive Director
Resource Development Council
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of HB
95.
ACTION NARRATIVE
10:00:47 AM
CHAIR SARAH VANCE called the House Special Committee on
Fisheries meeting to order at 10:00 a.m. Representatives
Himschoot, C. Johnson, and Vance were present at the call to
order. Representatives Stutes and Carpenter arrived as the
meeting was in progress.
HB 95-NATL. RES. WATER NOMINATION/DESIGNATION
10:01:05 AM
CHAIR VANCE announced that the only order of business would be
HOUSE BILL NO. 95, "An Act relating to designation of state
water as outstanding national resource water; and providing for
an effective date."
10:01:17 AM
The committee took an at-ease from 10:01 a.m. to 10:04 a.m.
10:04:21 AM
REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, as
prime sponsor, introduced HB 95 via a PowerPoint presentation
[hard copy included in the committee packet]. He stated that HB
95 is a reiteration of past legislation, and its purpose is to
give the legislature the authority to designate bodies of water
as Tier III, under the federal Clean Water Act standards. He
explained the history of the Clean Water Act, and he said that
it mandates states to have a water-quality based control program
known as Water Quality Standards, which must include water
quality criteria and an antidegradation policy, ranked in a tier
structure. On slide 4, he pointed out the tier system. He
explained that Tier I and Tier II waters still accept pollution
discharges, while Tier III waters do not accept pollution, as
they are deemed "the best of the best." This highest level of
protection is meant to protect a state's most outstanding
waterbodies from pollutants. He pointed out the federal
regulation which outlines high quality water.
10:08:42 AM
REPRESENTATIVE RAUSCHER continued to the next slide, which
described the state's Department of Environmental Conservation
(DEC) policy in designating bodies of water as Tier III. He
moved to slide 7 which showed a map of the state's potential
Tier III waters. He stated that HB 95 would quicken the process
of designating these bodies of water.
10:10:23 AM
RYAN MCKEE, Staff, Representative George Rauscher, Alaska State
Legislature, on behalf of Representative Rauscher, prime
sponsor, provided further explanation of HB 95. He pointed out
on slide 8 and slide 9 the provisions in Article 8, Section 2
and Section 13 of the state's constitution which gives the state
the power to classify the bodies of water. He summarized that
the proposed legislation would codify DEC's current tier policy.
He explained that doing this could expedite the current
nominated bodies of water.
10:11:40 AM
REPRESENTATIVE STUTES questioned who would nominate the bodies
of water to the legislature.
REPRESENTATIVE RAUSCHER responded that any group of people could
make these recommendations to their legislators.
REPRESENTATIVE STUTES, with a follow-up question, asked whether
scientific information would be required.
REPRESENTATIVE RAUSCHER expressed the understanding that the
legislature has not required scientific research. He continued
that it would do due diligence by looking into the facts, but
the entity making the request would present the facts. The
process in the legislature would move the request through
committees. He stated there would be public testimony, which
would also bring out the facts. He suggested that the process
would be nonpolitical.
10:14:06 AM
REPRESENTATIVE STUTES expressed the understanding that there are
no real scientific studies required to establish a body of water
as Tier III.
MR. MCKEE stated that the nominator of the body of water would
be responsible for providing all the information and the
associated costs of gathering the information. In response to a
follow-up question, he reiterated that there is no specific
checklist of scientific data required to make these
designations.
10:16:02 AM
RANDY BATES, Director, Division of Water, Department of
Environmental Conservation, expressed DEC's support of HB 95.
He defined Tier III waters as having exceptional recreational
and ecological significance, with these qualities maintained and
protected from degradation in perpetuity. He continued that
Tier III would bestow the highest level of water quality
protection under the federal Clean Water Act, as it restricts a
wide range of activities. He stated that these restrictions
include road building, construction, recreational activities,
seafood processing, municipal wastewater discharge, stormwater
discharge, land fill activities, gravel quarry activities, and
any other activity which would affect the water.
10:18:58 AM
MR. BATES said the designation of a Tier III body of water would
require that the quality of the water and area be maintained and
protected, and any current quality should reflect the reasons
for designation at the time of designation. In response to
Representative Stutes' earlier question, he stated that a
designation request must at least include information in
relation to the water quality at the time of designation. He
continued that there is no law which requires science to be
behind tier designation; however, there would need to be enough
information so DEC would know how to manage the water, such as
the quality of the temperature or clarity. He explained that
this would mean there would be no new or increased discharges
into the waterbody if the discharge would result in the
degradation of the water. He advised that this also has long
term effects on the adjacent land.
MR. BATES expressed the opinion that the widespread impacts of a
Tier III designation would move the land and water usage outside
the criteria of DEC's expertise. He stated that DEC supports
the proposed legislation for three reasons: (1) the legislative
process would provide a full public process to evaluate the
designations, involving all interested parties; (2) the
legislative process would allow a full discussion of the
consequences, restrictions, or impacts of other activities,
including future, un foreseeable activities; and (3) the
legislative body is the proper forum to establish land and water
use designation.
MR. BATES continued that HB 95 would codify the consistent
practice of how lands and waters across the state would be
designated for conservation. He expressed the importance of the
legislature having control over this, so it would not be in the
hands of a single division director, commissioner, or at the
discretion of the courts.
10:22:48 AM
MR. BATES, in response to a series of questions from
Representative Stutes, stated that there have been five proposed
designations of Tier III waters. He stated that the oldest
request was in 2012 and the latest was in 2017. He stated that
DEC has responded to all the proposers, with the recommendation
that it go through the legislative process. In response, he
stated that there have been no Tier III designations. He
reiterated that the ramifications of a Tier III designation are
so significant that it would exceed DEC's authority to establish
a limit on land use applications, and this is one of the major
components of the proposed legislation. He expressed DEC's
belief that the power for state appropriation and land use
designations would be properly vested by the legislature.
MR. BATES, in response to Representative Stutes, stated that
nothing in law relates to the fact that a Tier III designation
could not be reversed. He expressed the understanding that if
the legislature oversees these designations, determinations
would be made on science and available knowledge, and this
information would be presented by the designators to the
legislature. He stated that if a designation is reversed, the
legislature would then use this previously presented information
to determine how the conditions have changed.
10:28:34 AM
CHAIR VANCE expressed the understanding that this would be
similar to the legislative authority for designating land usage
for parks.
MR. BATES responded in the affirmative. He continued that DEC
uses similar types of designations for restricted land use in
terms of parks and habitat. In response to a follow-up question
concerning any possible change to the federal regulation, he
expressed the understanding that the federal rule has not
changed since implementation in 1983. He sought to clarify the
Clean Water Act. He reiterated the designations of the three
tiers and pointed out that the federal rule requires states to
have a process to designate Tier III waters; however, how this
is managed is specific to the state's program, which is the
antidegradation process found in the regulations in Alaska.
CHAIR VANCE expressed the desire to ensure any federal code or
statute change would not have unintended effects. She expressed
the understanding that it would be highly unlikely to change the
Tier III designation process.
MR. BATES responded in the affirmative. He stated that there
are much higher profile federal rules coming out, and he
expressed the understanding that there is no talk about rule
changes on this provision.
10:33:50 AM
REPRESENTATIVE HIMSCHOOT questioned the reasoning behind the
proposed legislation.
MR. BATES responded that the bill would move the designation
authority out of DEC's purview. He reiterated that it has to do
with land use designation, such as a park, and this exceeds
DEC's authority. He suggested that also a public process is
needed, and this exists in the legislature. In response to a
follow-up question, he stated that this is the reason the
prospective bodies of water have not been through the Tier III
process. These petitions have been submitted to DEC, but DEC
has recommended that these petitioners pursue and avenue through
the legislature.
REPRESENTATIVE HIMSCHOOT questioned his recommendations for
inputting science in the process.
MR. BATES responded that this would depend on the designation in
the area, as each area would have key criteria. For example, if
the water were being gauged by temperature, the water would be
managed specifically so any activities would not impact the
temperature. He stated that whatever the water quality
criterium is, the water would be managed for this. The criteria
could include, for example, the presence of a [high mineral
count], temperature variation, residue, clarity, or recreational
purposes. He stated that there are multiple reasons for
designating areas. He suggested that the designator would want
to include enough information to identify why the designation
would be appropriate and what the designation is for, so DEC can
manage the water accordingly.
10:39:52 AM
REPRESENTATIVE HIMSCHOOT expressed appreciation for the use of
local expertise. She requested an explanation of Tier I and
some examples.
MR. BATES responded that there are different sources of
information concerning Tier I. He referred to the handout
included in the committee packet, titled "Developing a Tier III
Nomination and Designation Process in Alaska." He pointed out
that on page 4 there is an explanation of the three tiers, with
the description for Tier I being waters which do not currently
meet water quality standards for one or more parameters. He
said this could be because of temperature, a highly mineralized
area, or a human pollutant. He said most of the waters in
Alaska are Tier II waters, and Tier I would be a step below
this. He stated that these tiers are not listed, but the tiers
are looked at when there is a project review or activity permit
request.
10:42:18 AM
REPRESENTATIVE STUTES, concerning a Tier III designation,
questioned whether there could be development upstream.
MR. BATES responded in the affirmative; however, this would
concern the impact of the activity in that it cannot degrade or
contribute to a change in the water quality.
10:44:33 AM
CHAIR VANCE, per the current five requests for Tier III water
status in the state, questioned the reasoning behind these
requests.
MR. BATES responded that he would provide a list to the
committee members after the meeting. He briefly went through
the list. Concerning Southeast Alaska, he pointed out the
Chilkat River around Haines. He stated that this request was
submitted by the Village of Klukwan for cultural significance,
ecological importance, economic importance, subsistence
importance, recreational use, and constitutional
responsibilities. He stated that another Tier III designation
was submitted by the Yakutat Tlingit Tribe for the Yakutat
Foreland, and it was submitted for the interconnected wetland
which functions as a watershed for the protection of fish
habitat.
10:47:48 AM
CHAIR VANCE posited that there would be a variety of reasons,
and she questioned whether only a portion of a river could be
designated.
MR. BATES responded that the designation could be any portion of
or the entire waterbody.
MR. BATES continued reviewing the list and stated that the
Koktuli River in the Bristol Bay area was proposed for a
designation of Tier III status, and this was submitted in a 50-
page report by a number of interested parties. This river
system was described in the summary as an "ecological
powerhouse" located in the headwaters of the Bristal Bay
watershed, which is considered the most productive sockeye
salmon fishery in the world. He next addressed the proposal for
the Chandalar River. This was proposed by two individuals,
submitted on a single page, with the reasoning that it is a
spawning bed for chum salmon and ecological significance for the
entire area. He stated that the fifth request is for the Donjek
River in Northeaster Alaska because it has exceptional
ecological value for recreational uses and sustains rich
resources, which support the local Indigenous culture. He
stated that there is scientific information included in this
request. He pointed out that this shows the range of the
designation requests so far.
CHAIR VANCE questioned any minimum thresholds which must be
reached before a proposal is considered.
MR. BATES said there is no minimum threshold. He stated that
the burden would be on the proposer to present the information
collected to make a compelling case for the designation, as DEC
does not have written rules on this. The decisions would be
made on a case-by-case basis.
10:52:26 AM
REPRESENTATIVE HIMSCHOOT questioned whether a Tier III
designation would affect rivers that are also in Canada.
MR. BATES expressed uncertainty. He stated that he would report
back to the committee on this. He stated that DEC is involved
in a review of Canada's activities, but it does not have
permitting authorities there. He added that what many states do
not have, that Alaska has, is water rights rules, water quality
standards, and fish habitat rules. He stated that because of
this the different agencies communicate and coordinate on
reviews, which may have an effect on bodies of waters in the
state.
10:53:53 AM
CHAIR VANCE supposed that an adjacent river to Canada was
designated as a Tier III body of water and activity in Canada
affected the water quality. She questioned who would be
responsible for maintaining the water quality.
MR. BATES responded that this question is beyond the scope of
what he prepared for; however, he acknowledged the engaged
process DEC has with Canada in a bilateral working group. He
stated that water quality monitoring has taken place for years,
and at this point no water quality issues have been reported.
He stated that the entities in Canada would notify the agency of
any mining or road building which may affect the area. He
stated that the water quality standards in British Columbia is
very comparable to Alaska's standards.
10:57:02 AM
LEILA KIMBRELL, Executive Director, Resource Development Council
(RDC), provided invited testimony on HB 95. She stated that for
47 years RDC has advocated for diversity in the state's private
economic sectors and to expand the state's economic base through
the responsible development of its natural resources. She
stated that RDC is a statewide trade association made up of the
fishing, tourism, forestry, mining, and oil and gas industries,
and it collaborates with its partners and with policy makers to
ensure Alaska has a strong and diverse economy through
responsible development. On behalf of RDC, she expressed
support for HB 95, as it would provide a solution to codifying
the federal requirements. She reiterated the description of the
tier system.
MS. KIMBRELL expressed the opinion that the federal requirements
for clean water maintenance already exist in Alaska, and a Tier
III designation would take this a step further without any added
benefit to the environment. She expressed the opinion that any
economic activity which would potentially degrade Tier II waters
would be prohibited. She listed the activities that a Tier III
designation would impact. She advised that a Tier III
designation could become a tool for antidevelopment interest, as
seen in the five proposals discussed. She pointed out that
mining, oil and gas, federal land planning, and Alaska Native
corporate land selection as been seen as threats to certain
bodies of water. She continued that a further problem is that a
Tier III designation would not just apply to the water, but to
the land and tributaries around it. She expressed the opinion
that this would prohibit development; therefore, RDC supports
that this responsibility be solely on the legislature, as it
makes many other similar land designations.
11:01:53 AM
MS. KIMBRELL expressed the understanding that DEC already has
existing policies; however, for federal compliance this would
need to be codified. She provided a description of the process
of designating a body of water through the legislature, and she
stated that this complies with the Clean Water Act, and HB 95 is
a "simple housekeeping measure." She stated that the
legislature having the power to designate the bodies of water as
Tier III is consistent with the state's constitution in setting
aside state waters and lands for development. She urged the
committee to move the bill forward.
11:03:52 AM
REPRESENTATIVE CARPENTER questioned whether the Tier III
designation would enable litigation which otherwise would not be
allowed.
MR. BATES responded that if the designation decision were to
come from DEC, the decision would be subject to judicial review.
He reiterated this concern, and he expressed the understanding
that if the legislature made the decision, it would not be
challengeable in court. He added that this question might be
outside of his bounds; however, this is DEC's position.
REPRESENTATIVE CARPENTER stated that he meant to direct this
question to ongoing activities on industrial lands. He
questioned whether an entity would be exposed to litigation with
a Tier III water designation even if the activity is not
affecting the water quality.
MR. BATES expressed uncertainty and said that he would report to
the committee with an answer.
11:06:45 AM
CHAIR VANCE announced that HB 95 was held over.
11:07:59 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 11:08
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 95 - Sponsor Statement.pdf |
HFSH 3/23/2023 10:00:00 AM HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 - v.A.PDF |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - Sectional Analysis.pdf |
HFSH 3/23/2023 10:00:00 AM HRES 3/29/2023 1:00:00 PM |
HB 95 |
| HB 95 - Fiscal Note - DNR.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - Fiscal Note - DEC.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - Final Tier 3 Guidance 11-21-2018.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - Tier 3 Outreach Report 9 01 17.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - Tier-3-Factsheet-032018.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - 50 States ONRW Policies and Implementation Methods Table 2019.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |
| HB 95 - ecfr-40-131-12a.pdf |
HFSH 3/23/2023 10:00:00 AM |
HB 95 |