Legislature(2003 - 2004)
03/26/2003 06:36 PM House FSH
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 26, 2003
6:36 p.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Dan Ogg
Representative Ralph Samuels
Representative Ethan Berkowitz
Representative David Guttenberg
MEMBERS ABSENT
Representative Cheryll Heinze
OTHER LEGISLATORS PRESENT
Representative Les Gara
Representative Beth Kerttula
Representative Bill Williams
Representative Kelly Wolf
COMMITTEE CALENDAR
EXECUTIVE ORDER 107 - TRANSFER OF HABITAT FUNCTIONS FROM ADF&G
TO DNR
- HEARD
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
TOM IRWIN, Commissioner
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Testified during the hearing on EO 107,
explaining the reorganization and answering questions previously
submitted for response.
KEVIN DUFFY, Commissioner
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Testified during the hearing on EO 107,
answering questions previously submitted for response.
NANCY WELCH, Deputy Director
Division of Mining, Land and Water
Department of Natural Resources (DNR)
POSITION STATEMENT: Testified on EO 107 and referred to charts
to help explain the reorganization involved with the proposed
changes to the departments.
KERRY HOWARD, Deputy Director
Division of Habitat and Restoration
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Answered questions pertaining to EO 107.
KEVIN BROOKS, Director
Administrative Services
Alaska Department of Fish & Game (ADF&G)
POSITION STATEMENT: Testified on EO 107, answering questions
pertaining to administrative changes.
DALE KELLY, Executive Director
Alaska Trollers Association
Juneau, Alaska
POSITION STATEMENT: Testified on EO 107, expressing concerns
that the permitting process remain a good one, and that the
commissioner's authority be re-engaged.
EARL CHAMPION
Silver Bay Logging
Hoonah, Alaska
POSITION STATEMENT: Testified on EO 107, suggesting that "one-
stop shopping" would minimize delays in permitting.
PAUL SHADURA, President;
Acting Executive Director
Kenai Peninsula Fishermen's Association
Kenai, Alaska
POSITION STATEMENT: Testified on EO 107, expressing concerns
over how the system will function effectively; asked questions
such as how DNR will respond to recommendations made by the
Board of Fisheries.
FRANK RUE
Juneau, Alaska
POSITION STATEMENT: Referred to his previous work experience
for both DNR and ADF&G and testified on behalf of himself in
opposition to EO 107.
CATHERINE POHL
Juneau, Alaska
POSITION STATEMENT: Testified in strong opposition, urging the
committee to overturn EO 107.
STEVE ALBERT, Habitat Biologist
Division of Habitat and Restoration
Alaska Department of Fish & Game (ADF&G)
Eagle River, Alaska
POSITION STATEMENT: Testified on the tangible and intangible
costs involved with EO 107.
BOB CHURCHILL, Member
Anchorage Fish and Game Advisory Committee;
Member, Executive Board
Alaska Fly Fishers
Anchorage, Alaska
POSITION STATEMENT: Testified on EO 107, expressing the need
for accountability to be established under the proposed
structure.
CLEM TILLION, Consultant
Aleut Enterprise Corporation
Adak, Alaska
POSITION STATEMENT: Testified in support of EO 107.
PAULA TERRELL
Alaska Marine Conservation Council
Juneau, Alaska
POSITION STATEMENT: Expressed concerns pertaining to EO 107,
pointing out differences between single versus multiple
permitting, and DNR's versus ADF&G's mission statements.
SETH LITTLE
Alaska Center for the Environment
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to EO 107, urging
the legislature to disapprove EO 107.
BRUCE BAKER, President
Board of Directors
Southeast Alaska Conservation Council (SEACC)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to EO 107, asking
that consideration be given to the long-term health of renewable
resources.
GEOFFREY PARKER, Vice President
State Council of Trout Unlimited;
Counsel to Alaska Sportfishing Association
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to EO 107, offering
suggestions on how to improve it.
ACTION NARRATIVE
TAPE 03-19, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 6:36 p.m. Representatives Seaton,
Ogg, Samuels, Guttenberg, and Berkowitz were present at the call
to order. Representative Wilson arrived as the meeting was in
progress. Also present were Representatives Gara, Kerttula,
Williams, and Wolf.
EXECUTIVE ORDER 107 - TRANSFER OF HABITAT FUNCTIONS FROM ADF&G
TO DNR
Number 0100
CHAIR SEATON announced that the only order of business was
Executive Order (EO) 107, Transfer of Habitat Functions from
ADF&G to DNR. He clarified that the goal of tonight's hearing
was to identify the process, procedure, and structure that
EO 107 would be creating at the Department of Natural Resources
(DNR), to identify problems with that process and to determine
improvements to ensure that habitat and fisheries will be
protected within DNR.
Number 0307
CHAIR SEATON explained that the Alaska Department of Fish & Game
(ADF&G) and DNR would be responding to a list of questions that
had previously been compiled and submitted by the House Special
Committee on Fisheries. [The meeting's agenda consisted of the
following panels testifying before the committee: DNR, ADF&G,
members of industry, former state officials and experts, and
public interest groups.]
Number 0630
TOM IRWIN, Commissioner, Department of Natural Resources (DNR),
expressed appreciation for receiving the questions in advance.
He introduced staff who would testify during the meeting. He
said Commissioner Duffy would address the questions first and
that he himself would follow up.
Number 0705
KEVIN DUFFY, Commissioner, Alaska Department of Fish & Game
(ADF&G), provided the following testimony:
On February 12th, the governor introduced Executive
Order 107, transferring the permitting functions of
the [Division of Habitat and Restoration ("Habitat
Division")] to the DNR. Other functions of the
Habitat Division, including some of the research,
refuge management, and special projects, will remain
in the ADF&G. The administration believes that moving
this function into the DNR creates a more effective
permitting process. Contrary to some of the opinions
that have been expressed in previous hearings, we
believe this move will not negatively affect the
protection of fish and wildlife habitats. Alaska
statutes and regulations protecting habitat are not
being loosened. The same protection afforded habitat
throughout the state will remain, whether along the
coastal areas or in Alaska's vast interior.
Number 0819
COMMISSIONER DUFFY asked and answered the following questions
from his written testimony, which read in part as follows
[original punctuation provided, with some formatting changes]:
Question 2: How many Habitat biologists are being
lost. How will the remaining biologists be organized
around the state?
The number of habitat biologists transferred to DNR
was not a random process, but rather the work product
of a very intense work group that evaluated region-by-
region work loads, staff time dedicated to research
associated with permitting, and regional differences
in the amount of public participation for permitting
issues. The number of Habitat Biologist IV, III, and
IIs and support staff was carefully selected based on
past and present workloads within each region to
adequately address permitting needs. Enclosed is a
copy of the organizational chart showing the various
offices proposed in the Office of Habitat Management
and Permitting in the Department of Natural Resources.
Also included are spreadsheets that list the number
and location of habitat biologists that will be
transferred to DNR, those remaining at [ADF&G], and
those positions that will be laid off or deleted. The
following is an overview of the positions and
functions that will be transferred and those remaining
at Fish and Game:
Functions Moving to DNR: 27 Habitat Biologists and a
total of 36 total positions.
· Title 16 fish passage and anadromous fish stream
permitting
· Anadromous Waters Catalog (regulatory function)
· Project-related research and monitoring
· Consistency reviews, land use plan reviews,
review of 6217 documents, coastal boundaries
atlas
· Forest Resources and Practices Act permitting
Functions internally within the department moving from
Habitat and Restoration Division to Sport Fish: 14.5
Habitat Biologists; 19.5 total positions. One half
indicates a part-time position.
· Fish stream surveys and database
· Various research and restoration projects (e.g.,
stream bank restoration manuals and assistance,
ATV study and mapping)
· Oil spill contingency plan reviews
· ACMP [Alaska Coastal Management Program] support
to ADF&G Commissioner
· Special Areas Permitting
· Kachemak Bay National Estuarine Research Reserve
(an additional 6.5 Habitat and Fish Biologists;
10.5 total positions)
Internal Functions moving to the Division of Wildlife
Conservation: 3 Habitat Biologists; 4.5 total
positions include:
· Access Defense
· CARA/SWG [Conservation and Reinvestment Act]
· North Slope Grizzly Project
Functions Moving to the Division of Commercial
Fisheries: 3 Habitat Biologists whose functions
include:
· LTF [Log Transfer Facility] Dive Survey
· Mariculture Leases
· Invasive Species
EVOS [Exxon Valdez Oil Spill] (1 position) - staying
within ADF&G
· ARLIS [Alaska Resources Library and Information
Service] Librarian
Number 1112
COMMISSIONER DUFFY continued presenting his written
questions and answers, which read in part [original
punctuation provided, with some formatting changes]:
Layoffs
In addition, we eliminated 30 Full Time and 5 non-
permanent positions - 23 are currently filled. A
number of positions that were eliminated were
management and administrative in nature. We also
added an area office in the Mat-Su Valley and
eliminated two others in Ketchikan and Sitka.
Collective bargaining agreements dictate which
employees are given layoff notices. Consequently,
staff with the least seniority or who were in single
positions that were eliminated received lay off
notices that will become effective May 1st.
Number 1202
Question 3: Specifically, how will permitting be
expedited and maintain standards with less biologists?
Will biologists visit each stream site before
permitting Title 16 permits? Is there a commitment by
the Department of Natural Resources that there would
continue to be the same level of permit monitoring,
compliance and enforcement as previously existed under
ADF&G?
A goal of Executive Order 107 is to improve permit
efficiency. The organizational structure within DNR
for the Office of Habitat Management and Permitting as
well as the Office of Project Management and
Permitting under the deputy commissioner will more
closely align the functions of the habitat biologists,
the Alaska Coastal Management Program, and the large
project permitting teams. The closer working
relationship will increase communication and "problem
solving" that should expedite reviews and permit
issuance - especially for those projects requiring
permits from more than one state agency.
Number 1317
COMMISSIONER DUFFY continued with the next question [original
punctuation provided, with some formatting changes]:
Question 4: How does funding for the new DHMP
[Division of Habitat, Management & Permitting] compare
to past Habitat Div. Funding levels?
Over the last 10 years, Division of Habitat and
Restoration's authorized budget has increased from
$4.36 million to $8.81 million. However, the division
only spent $4.0 to $6.1 million, respectively. The FY
[fiscal year] 2004 proposed budget requests $7.37
million to be authorized; this includes only $2.0
million of General Fund. That comparison is attached
on a spreadsheet.
Number 1401
COMMISSIONER DUFFY addressed question 22, noting that
Commissioner Irwin would be responding to the other questions:
Question 22: Can DNR use federal Dingle-Johnson
monies or only Fish and Game?
The Act (16 U.S.C. § 777 et seq) defines "state fish
and game agency" broadly enough to cover DNR. The Act
also speaks in the singular that one could presume
that it meant for only one such agency in each state.
Number 1429
COMMISSIONER IRWIN testified that he's seen firsthand that DNR
maintains a balance between what should be held for multiple use
- including habitat - and what is developed. In addition, he
said, based on his personal experience with the development of
property both at Fort Knox and True North, when development is
allowed on state land, DNR limits that development to a
footprint that minimizes the overall impact.
Number 1554
COMMISSIONER IRWIN referred to written testimony and responded
to the remaining questions as follows [original punctuation
provided, with some formatting changes]:
Question 1: Who will the Deputy Commissioner be?
Dick LeFebvre holds the existing position of Deputy
Commissioner for DNR. At this point, it is unclear
whether an additional Deputy Commissioner may be
needed for the increased workload associated with the
transfer of two existing programs to DNR - Habitat and
Coastal Zone Management - plus the proposed Office of
Project Management and Permitting. I think the
committee would expect us to approach it from this
standpoint. I don't think that you add and hope you
can fill the work. In business you find out if you
have the workload and then add to it. We understand
there may be a necessity and consequently we're being
straightforward. At this time Dick LeFebvre is Deputy
Commissioner.
Number 1690
Question 5: Commissioner Irwin has stated that
agencies work together more efficiently when they are
housed under the same departmental structure.
Specifically, how will the DHMP issue permits more
efficiently? How will this intra-agency efficiency
between DNR and DHMP be superior to the efficiencies
experienced between DNR, ADF&G, and the Habitat and
Restoration Division?
You have likely heard me reference the Fraser
Institute Report and the overall perception mining
companies have of Alaska. The Fraser Report's figure
3, "Investment Attractiveness Index," encompasses all
the parameters such as infrastructure, policy,
regulations, land issues, wilderness, Native claims,
tax regime, et cetera, that led to that conclusion.
I'm convinced the habitat move will increase the
overall efficiency of the permitting process by
increasing communication and providing the teamwork
necessary and then further defining the regulatory
"sideboards" that will provide the investment
community with additional certainty. This is one
element in changing the "perception" the investment
community has of doing business in Alaska. By moving
the permitting portion of Habitat to DNR, Alaska's
statutes and regulations protecting habitat are not
being loosened and the same protection afforded
habitat throughout the state (coastal and interior)
will remain.
Number 1817
COMMISSIONER IRWIN addressed the next question:
Question 6: There has been a great deal of talk about
the slow turnover time for permits when multiple
agencies are involved. Can you explain the different
procedural approach DNR will take with respect to the
permitting of single-agency and multiple-agency
projects?
A large percentage of the habitat permits are what can
be framed as single agency - where no other state
authorization is needed for the project to proceed.
These single-agency permits can be issued by a habitat
biologist while performing a field inspection or
issued in the office after consideration of the
proposal. While the balance of permit authorizations
may be lesser in number, typically the permits needed
from more than one agency are associated with larger
projects that require more time for acquiring
information, reviewing alternatives to the proposal,
or other considerations. We expect that certain
efficiencies will be gained by having project managers
in the department that can keep the flow of
information necessary to make timely decisions.
Executive Order 107 is the mechanism to move a portion
of the Division of Habitat and Restoration to DNR to
further refine and facilitate the permitting process,
not to subsume one permit under another. The managed
"multiple-agency" review, modeled after the Large Mine
Permitting Team concept, expedites the issuance of
"multiple permits" by establishing closer
communication between disciplines to resolve issues
and solve problems. Conflicting requirements between
disciplines can normally be resolved among the multi-
program team to ensure the resource being considered
is protected and the spirit of the law is met. In the
event of a conflict that cannot be resolved within the
permitting team or by the project manager, the issue
would be elevated to the director of the Office of
Project Management and Permitting and the director of
the Office of Habitat Management and Permitting for
resolution. Further elevation, depending on the
particular issue, might involve the deputy
commissioner and then the commissioner.
Number 2039
COMMISSIONER IRWIN continued:
Question 7: Why is there such a time delay in issuing
water usage permits by DNR? Specifically, what
procedures will ensure that Title 16 permits are free
from similar delays?
The Division of Mining, Land & Water Director, Bob
Loeffler, states that there is NOT a significant time
delay in issuing water use permits. Typical DNR
temporary water rights (outside the coastal zone) are
issued within 20 days: the 20 days includes an agency
review period. Typical water right permits (outside
the coastal zone) are issued within 60 days. That 60
days includes time-consuming procedures that Title 16
permits lack including: a) an agency review period, b)
time for neighbors to receive notice of the water
right application by certified mail, and c) a public
review period. It also includes time for staff to
respond to the public's comments, and to write a brief
decision as well as the permit. Title 16 permits do
NONE of these: no agency comment, no certified mail
requirements, no public notice, and no requirement for
a decision. In general, resource agency
authorizations vary in their complexity, statutory
requirements, and notice provisions; it is not
appropriate to compare one permit to another in terms
of cycle time. Instead, the department looks for ways
to become more efficient in processing applications.
Number 2216
COMMISSIONER DUFFY testified:
Question 8: Will the new DHMP and the Deputy
Commissioner have a separate and different mission
statement than the Department of Natural Resources?
What is the mission statement?
It is interesting that we pulled out DNR's mission
statement relative to the new OHMP [Office of Habitat
Management and Permitting] of the Deputy Commissioner.
We do not believe that the missions of the two are or
should be different. In fact, Article VIII of the
Alaska Constitution requires all the resource agencies
"to encourage the settlement of its land and the
development of its resources by making them available
for maximum use consistent with the public interest."
Further, the constitution makes it clear that "fish,
forests, [and] wildlife . . . shall be utilized,
developed, and maintained on the sustained yield
principle, subject to preferences among beneficial
uses." Resource development is an important part of
the state's economy and it is our goal to ensure that
any economic opportunity is developed and preserved
for all Alaskans, both now and in the future.
Number 2333
COMMISSIONER IRWIN asked and answered the next question as
follows:
Question 9: AS 16.05.870 says the Department of Fish
and Game must provide for "proper protection" of fish
streams. Will the Deputy Commissioner define "proper
protection?" If so, how?
The Legislature has not chosen to enact a definition
of "proper protection," but could do so in the future.
The Department of Fish & Game, in administering this
permit program in the past, has also chosen not to
attempt a regulatory definition of the standard. The
standard has an inherently discretionary element that
would be difficult to reduce to a simple definition.
Since Executive Order 107 does not change the law, but
merely moves it from one department to another, we do
not believe that there is any emphasis or management
intent than to give fish streams "proper protection"
or that the term needs further definition.
Number 2436
COMMISSIONER IRWIN continued:
Question 10: Considering the mission statements of
DNR and the new DHMP, will federal agencies (EPA, Dep.
Of Interior) accept the DHMP permits without
additional federal permitting?
The legal relationships between the state and federal
governments on habitat management issues will not
change. Also note that in chapter 124 of the 2002
Session Laws, both DNR and ADF&G Habitat have
conservation as part of their statutory mission:
"The mission of the Division of Habitat and
Restoration is to protect, maintain, enhance, and
restore habitat for fish and wildlife consistent with
sound CONSERVATION and sustained yield principles.
"The mission of the Department of Natural
Resources is to develop, CONSERVE, and maximize the
use of Alaska's natural resources consistent with the
public interest."
Number 2542
COMMISSIONER IRWIN testified:
Question 11: What is the legal relationship between
the Deputy Director and the Commissioner in reference
to the permit appeals process? Will DNR develop
appeals regulations with respect to in-stream permits?
What will those regulations include?
Attached is the answer to this question that was
addressed by the Department of Law for the Senate
Resources Committee. Also included are several charts
that depict the external appeal process as well as the
internal conflict resolution between the Division of
Forestry and the Office of Habitat Management and
Permitting. I'd like Nancy Welch to go over those
charts for us.
Number 2639
NANCY WELCH, Deputy Director, Division of Mining, Land and
Water, Department of Natural Resources (DNR), referred to three
charts contained in the committee packet: "[AS 16.05.840]
("840") Permits -- Appeal Procedures," "[AS 16.05.870] ("870")
Permits -- APA Appeal Procedures," and "Conflict Resolution
Between Forestry and Habitat"; she labeled those charts "A, B,
and C," respectively. She noted that boxes color-coded in red
referred to the "decision makers," and said that regarding 840
permits, in most cases, those don't go through an appeals
process.
Number 2839
MS. WELCH referred to the second chart, "870 permits -- APA
Appeal Procedures." She explained that this "trumps the
statutory provision that we have for appeals in our regulatory
process." She pointed out that neither ADF&G nor DNR has its
own hearing officer; regardless of who the hearing officer is,
he/she makes a recommendation to the commissioner, who, in this
case, is the final administrative decision maker. That decision
can be appealed in court. An APA appeal procedure, much like a
judicial process, allows for evidentiary information. She noted
that not many 870 permits go through that process.
Number 3019
MS. WELCH concluded by referring to the chart, "Conflict
Resolution Between Forestry and Habitat," which was similarly
color-coded. A conflict would be directed to the state forester
and the division director of habitat and restoration, and if
resolution wasn't reached, it would be taken to the
commissioners. If resolution wasn't reached at that level, if
it was in the coastal zone, it would go to the Coastal Policy
Council; otherwise, it would go to the governor's office for
resolution. She referred to the left-hand side of the chart,
"After Transfer" and pointed out that the decision maker would
be the state forester for situations involving the so-called
Forest Practices Act (FPA); otherwise, it would be handled by
the division director. If resolution wasn't reached, the
commissioner would be the final decision maker for the
administration process. She added that with the transfer, the
governor's office is not involved, and a layer at the level of
division director would be eliminated.
Number 3233
COMMISSIONER IRWIN continued addressing question 11 as follows:
DNR has department-wide appeal regulations; thus no
additional regulations are required for 840 permits.
Appeals of 870 permits will continue to be governed by
the Administrative Procedure Act, although some of the
DNR appeal regulations are applicable. After further
study, DNR may decide to amend its appeal regulations
in 11 AAC 02 to provide specific guidance on 870
permit appeals.
Number 3255
COMMISSIONER IRWIN continued:
Question 12: Considering the potential passage of HB
86, would there be any appeals process without "new
scientific information or newly recognized local
traditional knowledge?"
There has already been an amendment since the initial
set of questions was posed to DNR. It is, therefore,
only speculative at this time as to what effect HB 86
will have on DNR's appeals process, if any. Further,
any effect on appeal rights would presumably be the
same regardless of whether EO 107 went into effect.
Number 3442
COMMISSIONER IRWIN testified:
Question 13: Since the Commissioner is a part of the
appeals process for permits issued by the Deputy
Commissioner, is the commissioner effectively
eliminated as arbitrator between DHMP and the Chief
Forester?
The commissioner, by statute, is the principal
executive officer of the department. As such, the
commissioner is not legally precluded from being
involved in the matters of the department. Executive
Order 107 was crafted with the intent of the
commissioner being the final arbiter of internal
disputes between the Offices of Habitat Management &
Permitting and the Division of Forestry. This
conflict resolution provides an excellent example of
the permit streamlining expected by the transfer of
Title 16 permitting to DNR. Moreover, I can
participate in a variety of decisions that are
assigned by statute to the Director of the Division of
Lands.
Additionally, the position of Deputy Commissioner in
the statutes is not a new idea. "Through
administrative reorganization, the Department of
Natural Resources has eliminated the division of
lands. Duties and responsibilities given to the
division of lands under Alaska Statutes Title 38, have
been assigned to the deputy commissioner for
operations, who has been given the additional title
'director of lands.'"
Number 3520
COMMISSIONER IRWIN addressed the next question:
Question 14: Will public notices be required for all
of the new permits now issued by DNR? Will DNR
include the in-stream permits under the public notice
provisions of AS 38.05.945?
Under Executive Order 107, the law regarding public
notices for anadromous stream permits and fishway
permits will not change in any way. Nor does DNR
expect to include 840 or 870 permits under the
provisions of AS 38.05.945. Since public notices
under this statute are required for disposals of state
interest, by their very nature, 840 and 870 permits
are excluded from this notice requirement.
However, I would expect that 840 and 870 permits would
receive public notice when associated with a "major
project." Major projects are given public notice
primarily because of the scope of the project, the
resources that may be impacted, or the variety of
authorizations that may be required and their
associated statutory requirements for notice. As a
matter of course, any notice that is published
typically lists the agency authorizations that may be
required for the project to be approved. Accordingly,
we foresee that the most significant fish stream
permits would receive "public notice," even though
there is not a statutory requirement to do so.
Number 3650
COMMISSIONER IRWIN testified:
Question 15: Because the Forest Practices Act only
applies to state lands, will there continue to be any
authority for salmon stream buffers on federal lands?
The Forest Resources Practices Act applies to more
than just state lands. Under AS 41.17.119, it applies
to "other public land." Under AS 41.17.900, it
expressly applies to state, municipal, private and
federal lands. Nothing changes by virtue of the
reorganization.
Number 3732
COMMISSIONER IRWIN continued:
Question 16: What is the Memorandum of Understanding
between DNR-DHMP and ADF&G?
Frankly we haven't had time to sit down and work on
that; none has yet been drafted.
I'd like to make an additional comment: With this
administration and the cooperation between
commissioners, this will be beneficial to the state
because we understand that we have responsibilities to
protect and to respect certain areas. It's been a
privilege to work with Commissioner Duffy.
Number 3812
COMMISSIONER IRWIN continued:
Question 17: Would the DNR Commissioner continue the
historical practice of the Fish and Game Commissioner
to delegate the authority for making the initial
permitting decisions to the habitat biologists? Would
these decisions therefore become subject to the
process for appeals to the DNR Commissioner?
The execution of daily activities, including permit
issuance, is not expected to be any different than any
other programs administered by DNR. Historically,
decision-making is delegated to the lowest level that
is prudent. And that's good business. DNR does not
plan any change with the current delegations to
habitat biologists. Such decisions would be subject
to appeal to the commissioner.
In ADF&G, there was no formal structure for an
internal appeal of 840 permits, but in DNR there is a
structure - see 11 AAC 02 - and that would be
followed. As mentioned earlier, with respect to 870
permits, the appeal process is governed by the
Administrative Procedure Act at the ADF&G and will
continue to be governed by that law when transferred
to DNR.
Number 3933
COMMISSIONER IRWIN testified:
Questions 18: Under EO 107, the DNR Commissioner or
the Deputy Commissioner would have broad discretion to
interpret the Anadromous Fish Act. For example, the
Commissioner/Deputy Commissioner would "determine the
waters in the state that are important for the
rearing, spawning, and migration of anadromous fish,"
and the DNR Commissioner/Deputy Commissioner would
decide what constitutes "important habitat," and what
constitutes "proper protection" for the rearing,
spawning, and migration of anadromous fish in
"important" streams. Similar discretion is afforded
under the Fishway Act. Given the differing mandates
of the Department of Natural Resources and the
Department of Fish and Game, what safeguards would
prevent this discretion from becoming unduly
conflicted or compromised because it would now reside
with the DNR Commissioner/Deputy Commissioner?
Both ADF&G and DNR have conservation as part of their
core mission. Broadly speaking, the Alaska Statutes
assign ADF&G management of fish and wildlife
populations and assign DNR management of the land,
tideland, parkland, forest, and so on that fish and
wildlife inhabit. In the past, there have been some
exceptions to this broad division, including the
assignment of management of stream bottoms to ADF&G in
AS 16.05.840 and AS 16.05.870. EO 107 will change
management of these submerged lands to DNR,
eliminating a divergence between ownership and control
and bringing this area into the more general
management pattern used in Alaska. In many of DNR's
missions, like those of other agencies, there are
competing values to be balanced. This does not create
a conflict. Note that the opinion furnished to
members of the committee by the Legislative Counsel
concurs in the absence of a conflict.
Number 4147
COMMISSIONER IRWIN continued with his testimony:
Question 19: The National Oceanic and Atmospheric
Administration (NOAA) under the Department of Commerce
has a similar structure as is being proposed by EO
107. For example, NOAA Fisheries is responsible for
both the promotion of fisheries in federal waters and
the protection of fisheries resources. It has been
suggested that this has caused increased litigation,
introduced costly delays, and contributed to agency
gridlock. How would DNR avoid similar problems?
The statutory role of NOAA is so different from those
of state agencies, and the federal laws giving rise to
litigation are so different from Alaska law, that it
is difficult for us to pursue this comparison.
Moreover, while there is litigation surrounding
federal fisheries management, we are not aware that
this would be lessened by splitting the management
function among competing agencies. If the member of
the committee submitting this question has more
specific information on NOAA that it wishes to have us
examine, we would be happy to review it.
Number 4302
COMMISSIONER IRWIN continued by asking and answering the next
question:
Questions 20: The Governor and the Acting
Commissioner of Fish and Game - now, the Commissioner
of Fish and Game - and the Commissioner of the
Department of Natural Resources have assured the
public on several occasions that "the same level of
environmental protection will continue to be provided
for Alaska's fish and wildlife." Under EO 107, the
Habitat Division authority for issuing permits and for
the monitoring, compliance and enforcement of these
permits would now be the responsibility of DNR, with
fewer biologists.
Is there a commitment by the Governor that the habitat
biologists who are being transferred from the Alaska
Department of Fish and Game would be "housed" in the
newly formed Office of Habitat Management and
Permitting?
That is the plan that has been outlined [by] the
governor and as presented on the organizational chart
enclosed in the committee packets.
Number 4456
CHAIR SEATON asked about the deputy commissioner's not being
listed on the chart.
COMMISSIONER IRWIN explained that the commissioner and deputy
commissioner were "lumped together."
Number 4532
COMMISSIONER IRWIN continued:
Questions 21: Is there a commitment by the Department
of Natural Resources to require the State Forester to
grant "due deference" under the Forest Practices Act
to the Office of Habitat Management and Permitting on
issues relating to the harvest of trees from within
the 66 foot stream buffers on salmon streams on
private land?
Under Section 23 of Executive Order 107, the State
Forester is still required to give due deference to
the deputy commissioner - who will supervise a staff
of habitat biologists - as it relates to fish habitat,
including variations to riparian standards,
designation of alternative site-specific riparian
protection plans, and road location decisions within
riparian areas. The legislative mandate has not
changed, other than to assign the lead responsibility
to an agent within DNR.
Number 4658
COMMISSIONER IRWIN addressed question 23 [question 22 had
previously been answered by Commissioner Duffy]:
Question 23: Within DNR, how will positions be filled
once a biologist leaves the position and how do we
guarantee that biologist will be hired to fill vacant
positions? Presently, personnel in ADF&G have
Position Control Numbers [PCNs] and Personnel
Description Questionnaires [PDQs] that define the
requirements for the position and the duties of the
job. When a vacant position becomes available the PCN
hiring requirements and PDQ responsibilities can be
rewritten. Therefore, DNR can, after a period of
time, rewrite these positions to have non-biologist -
environmental engineers, foresters, or water quality
backgrounds - fill them.
TAPE 03-19, SIDE B
Number 4643
COMMISSIONER IRWIN continued with question 23:
After a period of time, biologists could represent a
small group in DNR, as opposed to the 20-30 biologists
who are being transferred today. What assurances can
we have that prohibits this long-term reduction in
force of people who care about the resources and are
knowledgeable about them?
DNR plans to leave these positions classified as
habitat biologists. As DNR's missions and measures
are driven in large part by legislative budget
approvals and statute amendments, I cannot guarantee
that the program or the people that manage that
program won't change over time. I do believe,
however, that the scientific knowledge, skills, and
abilities that these habitat biologists bring to DNR
are necessary for the proper management and protection
of habitat.
Number 4603
COMMISSIONER IRWIN concluded with the last question:
Question 24: How will the structure of DNR be formed
to avoid targeted budget reductions? Next year the
governor could eliminate the whole DNR budget for
biologists if Executive Order 107 creates a separate
layoff structure in DNR. Again, biologists would be
reduced in number and after a number of years duties
could be transferred to people in other Divisions of
DNR who are less qualified.
DNR cannot make itself immune from budget cuts enacted
by the legislature, and does not seek to do so. The
administration supports a strong, adequately funded
habitat protection program.
Number 4450
CHAIR SEATON thanked the commissioners and pointed out that the
questions came from a number of sources. He referred to the
meeting's agenda and announced that the next panels would be DNR
and ADF&G.
Number 4236
REPRESENTATIVE BERKOWITZ asked if thought had been given to
keeping all of the biologists by simply moving them from ADF&G
to DNR.
COMMISSIONER IRWIN replied that a lot of discussion had been
focused on what was needed in DNR to accomplish the work. Based
on workload efficiencies recommendations were made that led to
the following: "This is what we need at this time." He said he
was very aware of the need for evaluating whether there were too
many or too few employees to get the job done correctly, and
that ultimately it was his responsibility [to make those
decisions].
Number 4140
KERRY HOWARD, Deputy Director, Division of Habitat and
Restoration, Alaska Department of Fish & Game (ADF&G), added
that in an ideal world, all of the biologists could move to DNR.
However, as part of the reorganization, the expectation was that
there would be a reduction in staff. Therefore, this methodical
approach took into consideration which functions were
statutorily required, which could be moved, and which could
remain at ADF&G.
REPRESENTATIVE BERKOWITZ asked what the habitat biologists had
recommended to Commissioner Duffy regarding facilitating this
move and ensuring that the quality of work would be continued at
DNR.
Number 4030
COMMISSIONER DUFFY responded that he'd not met with the habitat
biologists in the Southeast region. He explained that
Commissioner Irwin was planning to meet with the biologists
because under EO 107 those permitting responsibilities would be
transferred to DNR. Therefore, rather than dialoguing about the
past, the idea was for Commissioner Irwin to meet with the
habitat biologists going to DNR to begin creating a working
relationship. Commissioner Duffy added that he had talked with
habitat biologists about the move, and expressed his hope was
that their professional expertise would continue at DNR.
REPRESENTATIVE BERKOWITZ asked Commissioner Irwin about the
biologists' recommendations regarding whether the proposed
staffing levels under EO 107 would adequately safeguard the
habitat.
COMMISSIONER IRWIN replied that he'd received input from
biologists who didn't agree with the move and input regarding
things that need to get done. He said that he clearly heard the
message that "change is very hard when you get down to the
individual level." He said he respects individuals and their
feelings, and that, in turn, he hopes it's recognized that he
needs good habitat biologists in order to make this work.
Number 3732
REPRESENTATIVE OGG referred to [chart B] regarding 870 permits,
and asked about the pathway to a hearing officer in the existing
structure versus the pathway after the transfer.
Number 3655
MS. WELCH replied that the existing structure depicted that some
of the area and regional offices had habitat biologists, so
"regardless of where they're housed, they actually make the
decision." She explained that whoever makes the decision in the
red box then continues on to the yellow box.
CHAIR SEATON asked if the habitat biologists' positions
currently at ADF&G were exclusively involved in permitting or
involved multiple activities.
COMMISSIONER DUFFY responded that those positions involved
multiple activities.
CHAIR SEATON asked if, due to the changes from EO 107, the
biologists would exclusively be involved in habitat permitting.
MS. HOWARD responded that habitat biologists at ADF&G perform an
array of duties that depend on the individual biologist and
his/her position, noting that no two positions are exactly the
same. With the move of a portion of the habitat division to
DNR, she said that, inevitably, some of the duties would change.
She stated that while one of the predominate duties of the
biologists at DNR will be to do 840 and 870 fish stream
permitting, other duties will include associated research and
activities such as review of land use plans, FPA, ACMP
consistency reviews, and so forth. In response to Chair
Seaton's question, Ms. Howard said that she didn't think that
any of the positions at DNR would be single-focused because all
of the duties envisioned as moving to DNR would have to be
assumed and completed.
Number 3338
REPRESENTATIVE GUTTENBERG commented that rather than issuing an
executive order, this could have been an internal organization
with a governmental coordination policy. He asked why the
decision to use an executive order was made and wondered if
there was a more efficient way of achieving the same objectives.
Number 3555
COMMISSIONER DUFFY replied that the governor's office had made a
decision to pursue this in an expedited fashion through this
executive order. He explained that since that decision was made
and this proposed policy call was rolled forward to the
legislature, the focus has been on creating a permitting
structure that would be maintained for certain activities in
ADF&G and in DNR, primarily Title 16, and that the concern has
been on having an adequate number of people moving to DNR to
continue the permitting function. He stated that the intent of
the administration was to move quickly on a policy call, to
evaluate it, to rule out a comprehensive program, and then to
move forward so that a new permitting structure would be in
place for fiscal year 2004.
REPRESENTATIVE GUTTENBERG replied that the administration was
making changes in other departments but in different ways and
asked if, with the loss of more than 30 percent of the habitat
and restoration staff, there would be a loss of credibility with
the federal government regarding programs or projects that
wouldn't get done due to the loss of so many staff.
COMMISSIONER DUFFY replied no, there haven't been giant red
flags in either of the departments, relative to the federal
government's concern over this transfer of Title 16 permitting
responsibility to DNR. He noted that over time, assessments
will reveal whether additional activities will be necessary to
ensure the efficiency of the permitting system.
REPRESENTATIVE GUTTENBERG questioned whether habitat protection
and restoration was being left out of the organizational
equation given that the habitat focus would be on permitting.
CHAIR SEATON wondered if this question pertained to the chart
regarding transferring staff to the Division of Sport Fish and
the Division of Commercial Fisheries.
REPRESENTATIVE GUTTENBERG expressed concern with the [Division
of Habitat and Restoration's] focus on permitting, suggesting
that this might put the relationship with the federal government
at risk.
REPRESENTATIVE BERKOWITZ inquired about the percentages of time
biologists spend on various duties such as permitting,
restoration, and research.
Number 2835
MS. HOWARD, in response to an earlier question from Chair
Seaton, explained that habitat biologists currently perform an
array of duties and a biologist might spend 10 percent of
his/her time on restoration, 30 percent on land-use planning,
and the remainder on permitting. With the staff going to DNR,
permitting of 840 and 870 streams will be a critical component
but review of land use plans, the Tongass Land Management Plan
Revisions, ACMP consistency reviews, and an array of other land-
use planning and review activities will also be important
components. She referred to Commissioner Duffy's desire to
establish clear communication pathways between habitat
biologists whether working at DNR or ADF&G and regardless if the
focus is on permitting or on land use plan reviews. Ms. Howard
said that both commissioners want to have a memorandum of
understanding (MOU) between biologists at DNR and ADF&G.
Number 2702
MS. HOWARD continued that regarding the relationship with
federal agencies, the Division of Habitat and Restoration
currently has between 60 and 100 memorandums of
agreement/understanding with various entities, and many of those
are federal agencies; obviously these will need to be revised,
updated, and edited. For example, regarding a MOU which expired
March 15th pertaining to fish passage issues in Southeast, a
forest service official wrote to Commissioner Duffy this week
and said, "We are aware that you are in a reorganization, we do
want to continue working with the biologists that move to DNR.
We know that you've got a lot on your hands. We're willing to
continue with the agreement, extend it, revise it right away if
that's your preference." She said the federal agencies have
indicated interest in maintaining relationships with biologists
both at ADF&G and DNR.
CHAIR SEATON asked where research projects involved with habitat
restoration would predominately be assigned.
MS. HOWARD replied that the projects are spread out, and that
some will go to habitat biologists at DNR, some to the Division
of Sport Fish, some to the Division of Wildlife Conservation,
and others to the Division of Commercial Fisheries.
CHAIR SEATON reflected that biologists would continue to have a
"mixed mission." He asked if there was anything formally in
place, such as the MOU, to assist the biologists at the two
agencies in sharing knowledge on an ongoing basis.
Number 2345
COMMISSIONER IRWIN responded, "We would be very remiss if we
didn't allow that continued cooperation between those groups
also." He said this concern would be addressed in the MOU.
COMMISSIONER DUFFY added that a number of habitat biologists
with vast experience would be moved to DNR, and would continue
to require access to the most up-to-date information available.
Crossover between the two departments would be necessary to
ensure that the best permitting decisions would be made. He
stated that given the professional nature of the people
involved, he believes that there will be cooperation and
coordination among staff. He said that for those who are
critical of this change, the MOU will amplify and identify those
communication pathways.
CHAIR SEATON said the House Special Committee on Fisheries would
appreciate receiving a copy of the MOU.
Number 2041
REPRESENTATIVE KELLY WOLF, Alaska State Legislature, asked if
the reference to habitat biologist was a reference to a
"permitter."
MS. HOWARD responded that a habitat biologist is a permitter but
he/she also performs an array of other responsibilities.
REPRESENTATIVE WOLF asked if a college education was a necessary
requirement for habitat biologists.
MS. HOWARD replied that there are specific requirements for a
habitat biologist; it requires a degree in the biological field,
but not specifically a habitat biology degree.
REPRESENTATIVE WOLF asked if an environmental science degree
would be sufficient for a permitter.
MS. HOWARD replied that she didn't have the PDQ requirements
memorized but that the position requires a degree in a natural
resource field, and depending on the level of the biologist, it
also requires a certain number of years of work experience.
REPRESENTATIVE BERKOWITZ asked if the biologists going to DNR
would continue to work in restoration and research.
Number 1902
MS. HOWARD pointed out that oftentimes the research function is
done to gain knowledge in a specific area and is associated with
monitoring a particular development project. In looking at the
array of research activities that will remain at ADF&G or be
transferred to DNR, the intent is to split the jobs according to
function. For example, a lot of stream-bank restoration is
being sent to the Division of Sport Fish, whereas research
associated with oil and gas activities on the North Slope is
more closely associated with permitting and will be going to
DNR. She said that a more detailed list could be provided to
identify which functions would stay and which would be
transferred.
REPRESENTATIVE BERKOWITZ said his overall concern was that the
overall amount of restoration and research being done by a
finite number of biologists would now be divided into two camps
and that the number of biologists would be reduced. He said he
was also concerned with the overall impact and cost; he asked
about the housing costs involved with the anticipated move.
Number 1714
KEVIN BROOKS, Director, Administrative Services, Alaska
Department of Fish & Game (ADF&G), testified that leases and
other administrative details had been discussed by both
agencies. He said the largest amount of people needing to be
moved are the 12 individuals in Anchorage. He reported that in
Juneau, about 8 people need to move and that there is room in
the DNR building; those people are currently split between the
headquarters facility and the regional office. In Fairbanks, a
change is not anticipated immediately; those people will stay.
The transition will take some time, so the move won't be
completed by April 15th. Many smaller offices, such as the
Petersburg or Prince of Wales Island offices, will remain the
same.
REPRESENTATIVE BERKOWITZ asked if the 12 staff in Anchorage
would need a new home, or would be transferred into new or
existing state leases.
MR. BROOKS referred to the lease on Raspberry Road, where staff
are squeezed into the ADF&G offices, and also to the Atwood
Building, a state-owned facility at near-full capacity, housing
DNR. He said the move could possibly result in a new lease but
it has not yet been determined; initially work will be done
within the constraints of using existing space.
REPRESENTATIVE BERKOWITZ commented that there would eventually
be additional logistical costs involved with relocating
individuals. He asked to be kept informed of the estimates of
costs as they came in.
REPRESENTATIVE WOLF offered that the Kenai River Center was a
successful template of various agencies working together very
well, and suggested using that as an example.
MR. BROOKS responded that the need for this type of cooperation
was recognized in light of there possibly being a new area
office in the [Matanuska-Susitna area], consisting of DNR staff
and [Division of Habitat and Restoration] staff who were being
transferred.
Number 1155
REPRESENTATIVE WILSON said she found the answers to the
questions reassuring, and was pleased that an MOU was going to
be written.
CHAIR SEATON expressed appreciation for the detailed answers,
saying the graphic framework would be helpful, as would the
clarification that due deference would still be applicable.
The committee took an at-ease from 8:10 to 8:15 p.m.
CHAIR SEATON announced that representatives from the industry
were next on the agenda.
Number 0800
DALE KELLY, Executive Director, Alaska Trollers Association,
testified that she represents hook-and-line salmon fishermen,
which is the only fleet in the state actively managed under the
Endangered Species Act for stocks of concern and for the
Columbia River Basin, which, she said, have been devastated due
to habitat destruction in the region. The association's
interest is in the protection of key habitat and watersheds.
The association doesn't know a lot about habitat permitting or
the subtleties of proper staffing, but is concerned that the
permitting process remain a good one, she said.
MS. KELLY said the current system is good because it contains a
series of checks and balances between ADF&G and DNR. She
mentioned that she represents salmon fishermen in state,
federal, and international arenas who are concerned about EO 107
and other similar and related bills in the legislature. She
reported that the current permitting process seems efficient,
with an average turnaround time of 14 to 15 days, which isn't
the case in other state agencies, including DNR. She questioned
whether the move will create efficiencies or inefficiencies
because fewer staff will be available to do more work.
Number 0459
MS. KELLY testified that the association supports streamlining
bureaucratic process and reducing governmental costs, but isn't
sure this is the way to go. She noted that the two
commissioners are doing very well with the direction given to
them, and that an overwhelming concern is not whether ADF&G and
DNR can establish a permit structure that makes sense; rather,
she said the crux of the issue is this: "There is no
commissioner authority that we can see for commissioner of
[ADF&G] and, in fact, there is actually no direct authority.
All of the Title 16 authority is being delegated to people below
the commissioner of DNR."
MS. KELLY continued that establishing a system in which the
commissioners aren't in control of the process hasn't been done
in the state before, and she wondered whether it's been
implemented in other states. She said that within the appeals
process, DNR appeals would be elevated to the commissioner, but
that would be a pretty extreme case. She said that within the
existing system there are cases when commissioners have had to
go "toe-to-toe and negotiate solutions," delegating authority to
the lowest level that's practical - and that's good business,
she added. She said that there's nothing within the structure
that allows those commissioners to conduct meaningful dialogue
while actually having the authority to make decisions. She
pointed out that there is a never-ending appeals process in the
ACMP and possibly there is a need to "get a grip on that and re-
vamp that program." She said if the commissioner doesn't have
the authority, there will be some difficult times.
MS. KELLY concluded by relating that the association would like
to see the authority of the commissioner of ADF&G be re-engaged.
She highlighted that because the agencies have different
missions, the tension between the agencies is healthy and has
brought about exceptional habitat values. Ms. Kelly said the
association suggests that the governor take a step back, listen
to people's concerns on all sides, and identify problems and
solutions in order to come up with a well-formed, articulated
plan. Otherwise, she said, the goals of an efficient and
better-run government won't be achieved.
TAPE 03-20, SIDE A
Number 0001
REPRESENTATIVE GUTTENBERG asked what would happen if agencies
couldn't negotiate among themselves.
MS. KELLY responded that if agencies couldn't negotiate, there
would be a lot of litigation and unhappy people; either an
administrative or judicial appeals process would be the end
result.
CHAIR SEATON asked if the MOU between DNR and ADF&G would
potentially re-engage authority to the commissioners.
MS. KELLY said she has learned that one doesn't really know what
is contained in an MOU until it's been written; she questioned
whether an MOU could "top a statute."
Number 0201
CHAIR SEATON commented that the idea is that the MOU would re-
engage not only the habitat biologists, but also the
commissioners; he said this concern would be passed on to
Commissioner Irwin.
Number 0256
EARL CHAMPION, Silver Bay Logging, testified that he's lived in
Alaska for almost 30 years and that most of his professional
career has involved private industry projects and the
development of natural resources. He relayed an experience he
had in obtaining a permit and explained that in the current
permitting process, after one completes an application and
delivers it to the [Division of Governmental Coordination
(DGC)], it gets distributed to other agencies needing to review
it, with the general rule being that a response will come within
50 days. In this particular example, when it was nearly 50
days, the [Division of Habitat and Restoration] advised DGC that
there hadn't been sufficient time to review the application and
more time was needed. After being informed, "that the clock
stopped," notification was received two and one-half weeks
later, specifying the conditions that were needed for this
permit. He reported that instead of 50 days, it took 4 months
to get this permit.
MR. CHAMPION further explained that this was the 6th or 7th time
that the barge had been permitted to do the same thing. He said
that he had to become his own advocate to make the permit move,
and told the committee that "government is here to serve the
applicant" and that he's interested in streamlining the
permitting process. He suggested that by bringing this "under
one house," the delays would be minimized. The permitting laws
would still need to be followed, but streamlining the process
would get it closer to "one-stop shopping."
CHAIR SEATON said the legislature would probably be developing
missions and measures for the department and looking at the
success of the department regarding timelines and delays.
REPRESENTATIVE WILSON said that Mr. Champion's testimony was
"something real to hang our hat on," and could be used to
measure whether the proposed changes would make a difference.
REPRESENTATIVE GUTTENBERG asked if Mr. Champion noticed anything
specific in the proposed changes that would make it easier to
obtain his permit.
MR. CHAMPION replied that [he wouldn't know] that answer until
he experienced the changes.
Number 0854
PAUL SHADURA, President and Acting Executive Director, Kenai
Peninsula Fishermen's Association, said the association is not
opposed to the change within the divisions, but wants to be
assured of accountability and of there being adequate
protections to spawning streams, and to anadromous and non-
anadromous resident species. He reported that the Board of
Fisheries recently adopted a statewide wild trout policy in
conjunction with a sustainable fisheries policy, and that
habitat is a main concern. He said he was unsure of how DNR
would relate to the Board of Fisheries' recommendations.
Number 1145
MR. SHADURA referred to AS 16.05.870, and read: "The
commissioner shall, in accordance with AS 44.62 (Administrative
Procedure Act), specify the various rivers, lakes, and streams
or parts of them that are important for the spawning, rearing,
or migration of anadromous fish." He said he understands that
this duty will go directly to the new deputy director, and he
questioned whether the person in this new position would have
the necessary qualifications and expertise to discern
biological, developmental, and conservation issues. He said
that there must be a way for ADF&G to have some say in the
permitting process. He referred to [Article III, Section 26],
noting that the governor did appoint a commission to do this
job. He suggested the establishment of a commission to approve
of permitting; the commission could be confirmed by the
legislature and would include a qualifications review. Deputy
commissioners and subordinates are not reviewed by the
legislature, he added.
MR. SHADURA continued that another issue pertained to the
anadromous fish catalogue, saying that those functions will go
to DNR, yet fish streams surveys and databases will be compiled
by the Division of Sport Fish. He expressed concern that
evaluations will be made by people who do not have habitat
expertise. He said it seems like the Division of Sport Fish
will be designating the anadromous streams and resident areas
for resident populations, and he's not sure how this dual system
will function. He concluded by saying that he hoped his
concerns would be alleviated by further testimony.
CHAIR SEATON noted that DNR was writing down the questions that
were being generated during the meeting and that hopefully DNR
would provide a response to Mr. Shadura's question about how the
Board of Fisheries would relate to the DNR.
Number 1758
FRANK RUE told the committee that he served as the Commissioner of
ADF&G for the past eight years and before that he was the ADF&G
habitat director for seven years; for nine years prior to that he
was a resource manager for DNR. He referred to his written
testimony and testified as follows:
I do not support EO 107 and urge you to disapprove it
and instead work with the administration and the
public to address any real or perceived problems with
the ADF&G administration of the Anadromous Fish Act,
the Fishways Act, and the FPA.
I am submitting, for the record, two letters, one
signed by the last five commissioners of [ADF&G] to
Governor Murkowski and one from me to Representative
Gara. I believe they are both relevant to your
deliberations.
Tonight I will limit my remarks to the two reasons the
administration has given to justify this move. I
believe these two issues are related to the success or
failure of this structure.
First, that this restructuring will lead to a more
efficient and streamlined permitting process; and
second, that DNR will maintain the same level of
protection as ADF&G.
If this move is about efficiency, or removing layers
of the bureaucracy, I don't see it. You could reduce
three regional supervisors to one operations manager
in the name of efficiency and leave the function in
ADF&G. You can cut deputy directors and biologists in
the name of efficiency and leave the function in
ADF&G.
The fact is that the vast majority of projects that
require an anadromous fish habitat permit or a fishway
permit are single-permit projects and require no other
authorization. Those permits are issued in an average
of just 14 days, so what layers of bureaucracy are
being removed and what timelines are being sped up by
moving the function to DNR? I don't believe any.
Number 2126
MR. RUE continued:
Projects that do require more than an ADF&G permit
seldom require a DNR permit too. The Corps of
Engineers and ADF&G are far more likely to issue
permits for the same project, so what duplication is
being removed? None, in my opinion.
Forest practices-related culverts do not require a
permit from DNR. The timber industry was very adamant
that there be no FPA permits. The only permit needed
by a timber company for a culvert is an ADF&G permit.
Here again, no duplication is removed by putting DNR
in charge of fish habitat as opposed to having ADF&G.
The second issue is that if the level of protection is
to be the same under DNR as it is under ADF&G, then
why make the move? In fact, this move is about
weakening the standard of protection for Alaska's
salmon, trout and other fish.
There are several reasons I believe the level of
protection will be lower under DNR than it has been
under ADF&G.
Start with the different missions of the two
departments. DNR is focused primarily on developing
renewable and non-renewable resources on state lands -
oil and gas; minerals; timber; agriculture and parks.
It is expressly not responsible for management of
Alaska's wildlife or development of its fisheries.
Fish and Game is responsible for managing fish and
wildlife for the sustainable use and enjoyment of
Alaskans.
What this means in reality is the commissioner of DNR
gets out the cut and the commissioner of fish and game
gets out the catch.
Number 2302
MR. RUE continued:
The ADF&G commissioner goes to work every day,
responsible for Alaska's commercial, sport, and
subsistence and personal use fisheries. These are
fisheries people who need to feed themselves and their
families and they generate close to a billion dollars
in income each year. They employ more Alaskans than
any other sector of the economy.
When faced with a development project that could
impact important fish habitat, who do you think will
have greater concern and determination to make sure
that habitat is protected?
The commissioner of ADF&G, who is responsible for all
the fisheries in the state; who knows that habitat
protection is one of the foundations of sustainable
fish and wildlife management; who knows that he or she
will fail the fishermen of Alaska if habitat is lost?
Or, under the scheme of EO 107, a deputy commissioner
in DNR, who has no responsibility to the fishermen of
Alaska?
The level of protection will also be lower because a
deputy commissioner in DNR, not the commissioner of
ADF&G who is confirmed by the legislature, is the last
administrative stop for anadromous and resident fish
habitat decisions, outside of an appeal, apparently.
Although, before, we heard something different.
Number 2356
MR. RUE testified:
A deputy commissioner in DNR, and not the commissioner
of ADF&G, will decide what is "important habitat,"
what is "proper protection" and when fish passage is
"necessary."
Instream habitat of king salmon, steelhead, and
rainbow trout will have less stature in DNR than a
potato. A potato at least has a cabinet-level DNR
commissioner responsible for its well-being.
A deputy commissioner at DNR does not have equal
standing with the commissioner of DOT or his own boss
or the regional forester of the United States Forest
Service (USFS) to bring issues to their attention and
effectively argue for fish habitat protection. Fish
habitat will lose out.
I have 23 years of experience at DNR and ADF&G
negotiating the FPA; negotiating with DOT, as
transportation projects are built to protect fish
habitat; negotiating oil and gas stipulations on state
and federal leases; working to keep trees important to
stream habitat in buffers; and working to protect
critical wildlife and fish habitat in state and
federal forest plans.
I can guarantee you from my experience, that ADF&G
commissioners will care more and have a higher
standard of protection for fish than will a deputy
commissioner at DNR.
Number 2541
Mr. Rue continued:
The level of protection will be lower because 22
people have been cut from the [Division of Habitat and
Restoration]. The workload has not gone down; time in
the field will.
Will the remaining positions that go to DNR be
biologists now and in the future? They don't have to
be under the order; they could be resource managers,
foresters, or hydrologists rather than trained fish
habitat biologists.
The level of protection will be lower because the
biologists who are left at DNR will be isolated from
their peers at ADF&G's [Division of Commercial
Fisheries and Division of Sport Fish]. One operations
manager, instead of three knowledgeable regional
supervisors, will be responsible for the biologists
and issues from Barrow to Ketchikan.
It is curious that the governor wants less and not
more supervision and support for these same biologists
he accused of having personal agendas.
None of this makes sense unless you want less
protection for Alaska's fish and easier, cheaper
development of timber, roads, and mines that will
impact salmon and trout.
Number 2634
MR. RUE testified:
There is an alternative.
If you want the same standard of protection, leave the
function of fish habitat protection in ADF&G. If the
legislature agrees that positions should be cut from
the [Division of Habitat and Restoration], you can do
that and keep the function ADF&G.
If the legislature feels that the policies ADF&G uses
to implement the Anadromous Fish Act and the Fishways
Act need to be changed, that can be done by working
with the administration and the public to implement
regulations. Commissioner Irwin probably wasn't aware
of this, not many people are, but ADF&G has tried,
twice, to adopt detailed regulations on 870 and 840
and both times the DNR prevented them from going
public. That way, Alaskans will have more say about
how much or how little protection they want for
Alaska's salmon and trout habitat than they will if EO
107 is allowed to go into effect.
I do not think there is a way for the legislature to
make a silk purse out of a sow's ear. EO 107 is a
sow's ear for Alaska's fish despite the best
intentions of the current commissioner of DNR. Please
work to reject EO 107.
Number 2803
REPRESENTATIVE WILSON said that the committee would be awaiting
responses to some good questions that had been brought up in Mr.
Rue's testimony.
REPRESENTATIVE BERKOWITZ stated that the development of Alaska's
resources will play a critical role in the state's economy in
the foreseeable future and that the development of those
resources is dependent upon federal cooperation. He asked Mr.
Rue about the importance of having a strong, viable habitat
division in order to maintain positive relations with the
federal government, that is, to develop resources, and to "keep
at bay those lawyers who would otherwise seek to prevent
development of the resources."
MR. RUE replied that this was an issue when he was commissioner.
He said that regarding involvement by federal agencies, ADF&G's
attempts to maintain the existing fisheries has enhanced the
state's credibility in the permitting process. Similarly,
[many] private citizens or groups concerned about fish have
agreed with ADF&G's approach and have not pushed for appeals.
MR. RUE cited the Fort Knox [gold] mine and the North Slope as
examples of good projects. He referred to the desire by federal
agencies, to turn huge gravel pits in the North Slope back into
moist tundra. Because the [Division of Habitat and Restoration]
made it clear that this wasn't a reasonable request, the federal
agencies backed off and those pits are now lakes - fish habitat.
Trust has been established because of ADF&G's reliability in
"looking out for the interests of fish," and under the new
structure, he said he didn't know if, in the long run, this
would continue to be the case.
Number 3230
CATHERINE POHL said she was speaking on behalf of herself and
told the committee that she was a habitat biologist with ADF&G
and could offer a view from the field. She provided the
following testimony:
EO 107 will not result in streamlined permitting. It
will gut habitat protection and degrade habitat. It
will also discredit the state, create chaos,
inefficiency, and delays. And it may endanger
economically important negotiations. To meet your
mandate of sustaining the state's productive and
valuable fisheries resources, I believe you will need
to reject EO 107.
I believe the public does not want the consequences of
EO 107. Unfortunately, few may understand those
consequences. To understand, you need to look closely
at how habitat protection happens, and how that will
be affected by organizational structure and by staff
levels.
Number 3401
MS. POHL continued:
There will be a loss of accountability since EO 107
strips ADF&G of its authority for habitat protection,
but not its responsibility. We all know that when
authority and responsibility don't line up, things go
wrong. It's a classic management tenant. The deputy
commissioner from DNR would not be subject to
legislative approval and DNR would not be responsible
or answerable in the same way to fisheries
stakeholders. Not answerable in the same way that you
are or that [ADF&G] is. This sounds like philosophy
but it is really important, given the flexibility of
the statutes. A commissioner charged with protection
and management of fish and wildlife, and their
habitat, and subject to legislative approval, is
needed for accountability. And that accountability is
essential for effective habitat protection.
So how would that work on the ground? Title 16 fish
habitat protection statutes are narrow in scope, but
open and discretionary tools for providing protection
more than requirements. There are no Title 16
permitting regulations, just policy and statute, so
commissioner-level commitment, expertise, and
accountability are essential. There could be dramatic
losses to fish passage and spawning habitat, and still
strictly meet the minimum "requirements of the
statute" - if the power to protect, itself, is not
effectively invoked.
Number 3496
MS. POHL continued:
It appears that this is exactly what the
administration has in mind, given the staff cuts and
recently drafted legislation. This legislation
proposes changing general concurrence projects, such
as Title 16 permits, into general permits. The
majority of Title 16 permits would then have no
review, and no site-specific conditions. That is a
recipe for disaster. Older USFS road crossings would
be an example of where that kind of approach leads.
Seventy percent of surveyed national forest culverts
fail to meet fish passage standards.
What does the change in authority mean to other
habitat protection outside the stream bank? There's
been talk about that this evening which was confusing
to me, and perhaps to some of you as well. ACMP
standards and review provide our only real protection
for riparian buffers outside of the FPA. It allows us
to avoid, minimize, or mitigate effects on key habitat
through project review. That's a big part of my job
now, but a part that will go away on May 1st. I say
that because we've had to prioritize our workload due
to extreme staff cuts. The ACMP part of it, and that
includes buffers, protection for eelgrass, tideland
fills, estuaries, near-shore habitat: No review.
Other than fish passage, nothing is more important to
the future of Alaska's fisheries.
Number 3658
MS. POHL continued:
If there's no statutory or regulatory requirement to
review such projects at all, let alone to review them
in a way that protects important habitat, concurrence
is assumed if there's no objection in the ACMP review
process. So the bottom line is that commissioner-
level commitment and accountability are just essential
for habitat protection, beyond the stream bank as well
as within the stream bank.
There's no indication that habitat protection outside
of ordinary high water will happen at DNR. Proposed
legislation makes clear that the intention, despite
statements otherwise, such as "no change in
substantive environmental requirements," is to
eliminate even the basic, modest, habitat protection
the state can now provide for stream buffers,
productive tidelands, and nearshore waters, crippling
state review projects on federal land as well as urban
areas. If habitat protection remains a goal of the
state, the legislature will need to assure, through
its own authority, that habitat protection is placed
in the hands of an agency and a commissioner that can
protect the use and enjoyment of fish and wildlife
through its implementation of statute and regulation.
Number 3809
MS. POHL continued:
Ironically, other agencies will continue to look to
ADF&G for habitat guidance. ADF&G consultation is
hard-wired into their permits. Yet there is no
provision for this role in the proposed reorganization
plan. It is as if the proponents of EO 107 are blind
to the current scope of review that supports the
mutual habitat protection goals of municipalities,
federal agencies, and the state. Mr. Rue mentioned
some of those examples. He mentioned our role in the
core permit process. You could also add in all kinds
of municipal permit reviews, setback variances,
restoration plans, wetland fill, and subdivisions.
There is also the FERC (Federal Energy Review
Commission) process, smoothing the way for federal
permitting. Loss of ADF&G's role in the FERC
hydropower process may lead to roadblocks with the
federal agencies.
Number 3905
MS. POHL continued:
We've also talked about the inefficiencies that will
result from the loss of the close communication we now
have with ADF&G biologists. Perhaps most important,
with the demise of area offices, the efficiency that
comes with knowing the ground and the players will be
lost. It will be impossible to schedule frequent site
visits to distant locales, and since we don't know
these distant places, it will be impossible to issue
good permits with minimal review. Delays will result.
With the staff cuts, we will no longer be able to
offer significant scoping early in project
development, though early involvement is known to save
time and money for the applicant. Unnecessary delays
due to last-minute project modification are
inevitable.
There are already considerable losses of funding for
habitat protection, assessment, and restoration
because many of the funding sources available for
habitat work at ADF&G cannot be transferred to DNR.
This unnecessarily impoverishes state habitat
protection, and will lead to habitat degradation as
well as permitting delays.
Number 4005
MS. POHL continued:
Approximately one-third of the state's
permitting/project review staff received layoff
notices. Southeast was hit the hardest. Five of the
nine project review biologists were laid off. This
represents over 50 years "on the ground" from Icy Bay
to southern Southeast. If anyone could streamline, it
would be these "master" permitters. They streamline.
They know the country and the operators, and that's
what it takes. What will be left will be a skeletal
crew will remain to cover the entire Archipelago and
outer coast to Cape Yagataga. What will this look
like?
There is no way we can cover for even one of the
permitters lost to layoff. Delays are inevitable with
half or one-third of the permitting staff.
Compliance monitoring and post-project inspections
will be a luxury we can't afford. And without
monitoring and inspections, there is no
accountability. Enforcement is time consuming. It
requires a consistent field presence, as well as
supervisory and legal support - not likely at DNR.
And wide-ranging ADF&G management and research
biologists, who do get in the field and are trained,
will lose the ability to enforce for habitat. Most
habitat protection occurs voluntarily, as it should,
but that is due to our field presence, our current
field presence, which provides education and
continuing enforcement.
Number 4110
MS. POHL continued:
In addition to that loss of that field presence, and
delays, you'll see a much-reduced scope of review -
fewer projects reviewed, fewer issues addressed. You
will see degradation of urban and forested landscapes.
There is no sign that DNR will pick up ADF&G's review
roles in municipal and federal projects. Perhaps the
saddest part is that there are no real gains in this
for industry, only losses.
Among the losses will be a loss of state credibility,
handicapping long-term fisheries, subsistence, and
development negotiations. Without hydro review, it
may be hard for ADF&G to pass the "red face" test in
treaty negotiations with our salmon-challenged
neighbors to the south.
We are losing a generation of habitat biologists'
expertise as well, crippling the state's ability to
train new biologists and setting the state's habitat
program capability back at least 10 or 15 years, even
if the EO decision is reversed within weeks or months.
One thing I've learned from working as a habitat
biologist is that most Alaskans care about fish and
wildlife. They care a lot. Some say EO 107 is a
runaway train. But I don't believe that. I have to
believe that all of you and your colleagues need to do
the right thing, that you want to do the right thing.
There is no tweaking, no Band-Aid to make EO 107 work.
Please support the resolution to overturn EO 107.
Number 4258
REPRESENTATIVE BERKOWITZ asked both commissioners for their
assurances that biologists and others from the department who
chose to testify would not be subject to any retaliatory action.
COMMISSIONER IRWIN replied, "That question was totally out of
line. ... Of course we care about people." He said he knew Ms.
Pohl had strong opinions against EO 107 and he complimented her
for sharing her views.
[Commissioner Duffy indicated his concurrence with Commissioner
Irwin's remarks.]
REPRESENTATIVE BERKOWITZ said he intended no offense, but wanted
to encourage good dialogue on the subject matter. He asked Ms.
Pohl about the impact of the removal of the biologists on the
North Pacific Salmon Treaty.
MS. POHL replied that without hydro biologists' review of hydro
projects, if hydro-related problems were to create loss of runs
in British Columbia and the Pacific Northwest, the loss of
credibility would become an issue. She said the state's habitat
protection program has been a "strong suit" in negotiations on
these issues.
Number 4530
REPRESENTATIVE GUTTENBERG asked about the loss of funding
sources for ADF&G biologists.
MS. POHL replied that funds would no longer be applied to
project review and habitat protection because those funds would
need to remain at ADF&G even though the function of project
review was being moved to DNR.
REPRESENTATIVE GUTTENBERG asked, "Why would that be?"
MR. RUE offered that the reason involved federal aid dollars
such as the Dingle-Johnson and Wallop-Breaux funds; these funds
couldn't be used for permitting because they go directly to the
fish and wildlife agency [ADF&G]. He said he thought some money
could go to DNR via RSA [reimbursable services agreement],
through a rehire position to do instream flow.
TAPE 03-20, SIDE B
Number 4625
MR. RUE continued that those funds were used by the [Division of
Habitat and Restoration] for project reviews. He said he didn't
believe the federal aid office would allow those funds to be
directed to DNR.
MS. POHL added that the issue was one of credibility with
federal agencies because the agency with expertise in fish and
wildlife is ADF&G. She said, "You'd be swimming upstream trying
to convince them otherwise."
REPRESENTATIVE GUTTENBERG asked about the projected amount of
federal dollars that would be lost.
MS. POHL deferred to management to answer that question.
Number 4536
CHAIR SEATON asked about developing missions and measures, in
order to look at the loss of habitat protections such as
eelgrass, for example. He said the committee would appreciate
some way of measuring loss, and that this information would also
give DNR the opportunity to make sure that "the loss isn't
creeping."
MS. POHL responded that DNR's emphasis on Title 16 issues will
probably continue but that with a reduced staff, the scope of
projects would have to be reduced. She said that biologists
have prioritized projects "from today forward, given the
transition" and that the ACMP-type issues which don't involve
Title 16 permits have fallen below the "can do" line. Regarding
the question on performance measures, she repeated there is no
"tweaking or Band-Aid that could make this thing work in an
acceptable way." However, she said one could track incoming
core permits, categorize, and enter those to a database, and
note which involve productive tidelands, estuaries, [or]
eelgrass. She pointed out this was problematic unless it was
reviewed; it's the habitat biologists who review the information
and determine which resources are affected. She said that at
least by looking at the incoming notices and counting those that
don't get looked at, one could guess at the amount involved with
the most sensitive resources but "you will never even know what
resources you're missing if these projects aren't reviewed."
Number 4205
STEVE ALBERT, Habitat Biologist, Division of Habitat and
Restoration, Alaska Department of Fish & Game (ADF&G), testified
that he has worked for the state for over 21 years, mostly as a
habitat biologist, and wanted the committee to know that having
"financial axes to grind" was not the motivation for his
testimony. He referred to his written testimony and told the
committee:
Today in Alaska we are facing the fiscal realities of
a budget deficit. We stand at a crossroad - a major
fork in the road. One road leads to rapid development
of non-renewable extractive resource industries at any
cost. Proposed administrative and legislative actions
will completely dismantle environmental regulation,
remove almost all opportunities for public notice and
input, and place the final decision-making approval
for development projects in the hands of a few.
The other road also has development of extractive
resources but with measured growth, recognition of the
economic values of renewable resource development such
as tourism, sport fishing, and hunting, and the
recreational values attached to our vast fish and
wildlife resources. The economic value and number of
jobs associated with this component of the economy far
exceeds all other industries. Fish have returned to
Alaska since the eons of time. Why would you want to
risk these resources?
Number 4000
MR. ALBERT continued:
In the next 10-50 years, what will Alaskans do when
the mines play out, the trees have been harvested, the
waters dammed to provide power for industry, the oil
and gas is depleted, and when all of our lands are
(indisc.) disposed? In April 2002, [U.S.] Senator Ted
Stevens said, "The day will come when oil and gas
revenues will not be available. When that occurs, we
will have our permanent fund, but we should also have
in the meantime dedicated funds for preserving and
protecting the revenue base of this state forever, and
that is the fisheries resource. It is the resource
that will sustain our state far into the future."
Number 3852
MR. ALBERT testified:
The proposed reorganization's tangible and intangible
costs will be great but will likely be shifted to
municipal governments, the general public, industries,
developers, large and small, and private landowners.
But where are the efficiencies and benefits?
Presently habitat permits are free and fast. How will
development project proponents, small and large,
respond to DNR's $200 to $500 per permit fees in the
future? How will developers respond to absorbing the
costs of having to wait even longer for their permits?
A little guy putting in a driveway culvert will be
paying the same as a large timber company for their
log stringer bridge permit. [Commissioner] Irwin has
often referred to his business approach to managing
state government. Any reasonable corporate manager
would request completion of a detailed, long-term
cost/benefit analysis before this reorganization is
implemented. Any reasonable manager would identify
the standards by which you, the legislature, and the
public will be able to measure increased efficiency.
Any reasonable manager would compare rates of
regulatory enforcement at DNR and ADF&G. The
legislature and the public need these elements to make
an informed management decision.
Throughout this whole reorganization discussion, for
months now, DNR Commissioner Tom Irwin, has heaped
tons of praise on how the permitting process for his
previous company was handled in the ADF&G Fairbanks
office where the [Division of Habitat and Restoration]
was a separate entity. As an example, he mentioned a
water reservoir project for which his company needed
an ADF&G permit. He stated that he received his
permit in a very timely manner and the environment was
protected and even enhanced. As a reminder to this
Committee, the [Division of Habitat and Restoration]
was a separate entity and the system worked. The
system as it is right now works! It works for the
public, to whom we are all responsible, for the fish
and wildlife resources that they expect to be
available for their use and enjoyment, and for all
development projects, except for literally a handful
of ill-conceived or incomplete projects, proposed
annually.
Number 3720
MR. ALBERT concluded:
I am not against development, I live in a house made
of wood, I drive a car that requires gasoline, and I
heat my house with natural gas. But I appeal to you
to recognize that development at any cost over other
societal values, without recognizing the concepts of
sustainability and multiple use resource management is
wrong, is poor public policy, and against the vision
of the writers of the Alaska Constitution. I truly
believe we can have reasonable development and
maintain fish, wildlife, and water quality values.
Balancing the budget while placing public resource
values at risk is unacceptable.
Number 3645
BOB CHURCHILL, Member, Anchorage Fish and Game Advisory
Committee, and Member, Executive Board, Alaska Fly Fishers, told
the committee that for the past 2 years he was on the
Southcentral Regional Advisory Council, the federal companion to
the state advisory committee, and he also sat for 3 years on the
Board of Game. He said he was familiar with public process and
its importance in contributing to making good decisions; he
suggested that EO 107 be debated in the House and Senate. He
said that although salmon currently appear to be plentiful, due
to their two-to-eight year cycle, damaging consequences can take
a long time to show up. He asked that, in addition to salmon
runs, issues involving resident species and other dependent
wildlife be looked at and considered. He said that the "total
dollar budget" needs to be examined to ensure that critical
arenas such as salaries, work hours, trainings, transportation
to sites, supplies, and equipment are included.
MR. CHURCHILL asked, "What kind of accountability have we
established for these upper level, key managers who are going to
make these decisions?" He mentioned that fly-fishermen travel
to Alaska from all over the world and spend a lot of money
because of the environment and [the resource]. He asked, "How
is enforcement going to work?" He also expressed concern that a
high level of accountability be built into the system for the
managers who will be accepting responsibilities regarding
habitat.
CHAIR SEATON noted that accountability is difficult to measure
and asked Mr. Churchill to send any specific suggestions for
measuring accountability to the committee.
Number 3052
CLEM TILLION, Consultant, Aleut Enterprise Corporation,
mentioned that he was a former legislator, a former chairman of
the North Pacific Fisheries Management Council, and a former
chairman of INPFC [International North Pacific Fisheries
Commission]. He began by telling the committee his views on a
variety of issues. He stated that he was supportive of EO 107,
noting that he didn't believe that one had to be anti-
conservation to be supportive of EO 107. He said that many of
the witnesses were thinking of their "rice bowls" rather than of
the actual need to "protect this or that." He mentioned that
taxes had been raised in the fishing industry so that commercial
fisheries would have the necessary budget, whereas the sport
fishery received money through funds such as Dingle-Johnson and
Wallop-Breaux. Mr. Tillion continued that he liked the idea of
cutting the budget because we've "gotten too fat," and said he
viewed this cut as a way of getting enough money to keep "the
regular ADF&G going." He said he believes that the legislation
requiring protection exists, and said, "Don't worry about who
loses their job, worry about the job and the resource itself."
REPRESENTATIVE BERKOWITZ said opposition to EO 107 had more to
do with the reality that the protections afforded to the habitat
and the jobs of Alaskans who depend on the habitat would be
adversely affected rather than there being a concern with
protecting the "rice bowls" of 30 biologists.
CHAIR SEATON announced that the panel of public interest groups
would be the next group to testify.
The committee took an at-ease from 9:30 to 9:32.
Number 2448
PAULA TERRELL, Alaska Marine Conservation Council, an
organization of about 1,000 members, said its guiding principle
is to promote, urge, encourage, and work towards sustainable
fisheries. She began by saying there's a misunderstanding
between Title 16 permitting and single permitting. She referred
to Mr. Champion's earlier testimony, explaining that his
difficulty was with DGC, not with ADF&G. She said with EO 107,
the governor indicated that the problem was not with single
permitting but with multiple permitting. She said that the
permitting horror stories do not always reflect instream
permitting, Title 16. Ms. Terrell mentioned that the transition
report indicated "they wished to see any decision about moving
habitat to DNR deferred until a new commissioner could come in
and a habitat director would come in that would then review the
whole process." She questioned why the transition report wasn't
being listened to.
Number 2037
MS. TERRELL referred to question 3, addressed earlier in the
meeting, and said Commissioner Irwin's response didn't answer
whether the site-specific visits, currently being done by
habitat biologists, would be continued in the future. Ms.
Terrell referred to the question, "What about a mission
statement?" She suggested that a separate mission statement be
made for the [DHMP]. She stated that DNR's goal is "to
contribute to Alaska's economic health and quality of life by
protecting and maintaining the state's resources and encouraging
wise development of these resources by making them available for
public use." Under [Sec. 16.05.020], the ADF&G commissioner is
required to "manage, protect, maintain, improve, and extend the
fish, game, and aquatic plant resources of the state in the
interest of the economy and the general well-being of the
state." Ms. Terrell said the aforementioned would be
accomplished through rehabilitation enhancement and development
programs; ADF&G must do all things necessary to ensure perpetual
and increasing production. She pointed out that these two
mandates [between DNR & ADF&G] are different.
Number 1755
MS. TERRELL continued that there was a difference of opinion
regarding whether the Dingle-Johnson funds could be used outside
of ADF&G and she asked for clarification on this. She
questioned how the monitoring, enforcement, and compliance
involved with the habitat biologists being moved to DNR would be
managed; she asked how jobs could be done adequately when the
number of available workers will be diminished. She inquired as
to how the department will answer these questions before making
a decision about EO 107. She suggested that a broader view be
taken, with consideration given to ACMP and DGC, as well.
MS. TERRELL cautioned that fishermen currently function
successfully with the Marine Stewardship Council's certification
of Alaska's wild salmon. According to Bob Tkacz's "Laws for the
SEA," certifiers will consider "what's happening with habitat"
and, she said, without certification, "we are in dire straits."
Number 1328
SETH LITTLE, Alaska Center for the Environment, testified that
this public-interest conservation organization has over 8,000
dues-paying members from around the state. He provided the
following testimony:
We recognize the need to develop our state's resources
but also to identify the responsibility to conserve
and protect the state's fish and wildlife resources.
In order to fully comprehend and assess the impacts of
the governor's Executive Order 107, the missions of
ADF&G and DNR need to be fully understood. They are
very different. The [ADF&G's] mission is to protect
and develop Alaska's fish and wildlife resources while
DNR's mission is to promote development of the state's
resources. These two missions balance each other,
providing a system of checks and balances and an
opportunity for fish and wildlife biologists to work
with developers through the permitting process.
By moving the permitting authority, one agency is
given primacy in the process of checks and balances
that has been in place since statehood to manage
Alaska's fish and wildlife resources and resource
development. This is far more than a process change
as it is a major substantive and statutory change.
(Indisc.) requires applying knowledge of fish to
individual conditions, which can cost far less to do
the job right the first time, rather than to restore
the habitat after it has been diminished.
Experience has shown that the direct involvement of
biologists knowledgeable about fish and fish habitat
in the review of culvert designs and installation
plans is the single most effective means of preventing
fish passage problems. This gives biologists the
ability and authority to respond to both individual
environmental conditions and the needs of operators.
Number 1156
MR. LITTLE continued that he had heard vague responses to the
submitted questions, specifically to questions three and five,
noting that the response to question five was "increased
communication and teamwork." He referenced the MOU and
questioned the long-term measures that would be in place at DNR
and DHMP to ensure that fish and wildlife habitat would continue
to receive the current level of scrutiny that is in place. He
also asked about long-term measures to ensure that a high level
of recruitment would remain in place, while taking into
consideration lay-offs, retirement, and staff turnover. He
wondered whether, similar to the [Department of Community &
Economic Development], DNR could contract with private
consultants to do the work of habitat biologists. He concluded:
Please do not let this executive order go through the
legislature without a vote on the issue. Recent
hearings and testimony have brought up far too many
unanswered questions and concerns from members of the
public for there not to be a legislative process and a
vote.
Number 0758
BRUCE BAKER, President, Board of Directors, Southeast Alaska
Conservation Council (SEACC), said that SEACC is a coalition of
18 volunteer conservation groups in 14 communities across
Southeast Alaska from Yakutat to Ketchikan. He said that SEACC
is dedicated to safeguarding the integrity of the region's
unsurpassed natural environment while providing for balanced,
sustainable use of the region's resources. He testified that
SEACC agrees with much of the previous legislative testimony
against EO 107. He told the committee that he served for 11
years as deputy director of ADF&G's [Division of Habitat and
Restoration]. He provided the following testimony:
My primary question tonight is why the legislature
would acquiesce to the relinquishment of the authority
you've retained over fish and game habitat protection
since statehood. We urge you to carefully consider
the following points.
Number one. EO 107 reduces the authority and right of
the legislature to influence executive management of
the state's fish and wildlife by shifting the core
statutory responsibilities of the ADF&G commissioner,
an executive officer appointed by the governor and
subject to legislative confirmation, to a deputy
commissioner of DNR appointed by the DNR commissioner
and not subject to legislature confirmation.
The first Alaska legislature specifically assigned
accountability for core [ADF&G] functions to the
commissioner of fish and game. However, EO 107
assigns these core fish and game responsibilities to a
deputy commissioner, a position not directly
accountable to the legislature. Executive Order [107]
is, therefore, constitutionally impermissible because
it does not simply reorganize the functions of the
executive branch but significantly alters those
functions by assigning them to an executive official
who is not the head of the department.
Secondly, EO 107 fails to specify any minimum
qualifications for the DNR deputy commissioner.
Section 23 of the order directs the state forester to
"recognize the expertise of the deputy commissioner
with regard to fish and wildlife habitat." However,
Section 40 does not require the DNR commissioner to
appoint a person with any expertise related to
protection of fish and wildlife habitat as a deputy
commissioner. In comparison, the [ADF&G] commissioner
must be a "qualified executive with knowledge of the
requirements for the protection, management,
conservation, and restoration of the fish and game
resources of the state." The executive order has
transferred responsibility to a person with
unspecified qualifications and unknown abilities.
Number 0525
MR. BAKER concluded:
In conclusion, unless a majority of the legislature in
joint session disapproves of this executive order, it
will: 1) reduce this and future legislatures' control
over the state's fish and game resources by placing
the core responsibilities for fish passage and habitat
protection into the hands of a state official not
directly accountable to the legislature. 2) It will
also transfer responsibility for the protection of the
state's fish and game resources from a qualified
executive to, as I mentioned, a person with
unspecified qualifications and unknown abilities.
We urge the legislature to put the long-term health of
Alaska's fish and game, and the welfare of all the
Alaskans who depend upon these renewable resources,
ahead of any short-term political objectives.
Number 0324
GEOFFREY PARKER, Vice President, State Council of Trout
Unlimited and Counsel to Alaska Sportfishing Association,
testified in opposition to EO 107. He told the committee that
he was on the Anchorage Fish and Game Advisory Committee for 20
years, had served on various planning teams for ADF&G and DNR,
and was special counsel to the Senate State Affairs Committee
under former Senator Mitch Abood. He explained that his
testimony was divided into the following sections: general
perspectives, what to do immediately, and eleven specific
suggestions. He provided the following testimony:
For general perspectives on this, I'd like to offer
[the following] eight.
First, we've heard from a number of legislators that
they have received more public opposition on this
topic than any other they can remember.
Second, every biologist who has appeared before any of
these committees has spoken out against this transfer.
Third, as a matter of perspective, the governor has
lost the factual arguments. He had two, (indisc.)
relying on examples, but (indisc.) has been disproved
by [ADF&G's] very efficient record. What you saw in
the morning's paper was, chiefly, some new argument
arising. But it makes sense to combine professionals
in the resource arena. The problem with that argument
is the budget cuts to DNR have eliminated many of the
professionals there
Fourthly, take a look at the budget. We're going from
... $12.4 million for ADF&G down to $3.5 million for
this habitat permitting function in DNR to perform
(indisc.) [FPA] function, 870 and 840 functions, and
the Coastal Zone Management functions that are
currently in DGC. That will pay salaries, but won't
do anything else. It won't pay for equipment,
leasing, and so forth.
Fifth, look at the costs. DNR will basically be able
to cover salaries but they will not be able to travel,
and we will lose many of our federal funds.
Sixth, look at what's going to happen from a matter of
perspective, with staff. Many biologists at ADF&G who
are going to be transferred are already, apparently
looking for other work. [Tape ends.]
TAPE 03-21, SIDE A
MR. PARKER continued:
DNR won't meet its staff needs, or is highly unlikely
to do so. And ask yourself whether bright, young,
professional biologists coming out of school are going
to want to work for a management agency or be a permit
(indisc.) They are going to want to work in an arena
where they can publish and ascend in their careers.
That would be ADF&G. You'll get biologists in DNR
that are a lot like biologists in the Corps of
Engineers [or] the Federal Highway Administration.
Seventh, take a look at where the effects of this
change will most be felt. It will be here in
Southcentral because that's where the permit load is
greatest.
Finally, eighth, most importantly, we're talking about
a billion dollar (indisc.) in direct ex-vessel value
in the combined ex-vessel value of salmon plus sport
fishing for (indisc.). Sport fishing, I want to
emphasize, is now [worth] $600-and-some million of
first round of expenditure in the state. And rainbow
trout, in just three drainages - the Naknek, Kvichak,
and Nushagak - have surpassed in their dollar value,
by direct expenditure, all the value of commercial
salmon costs in Bristol Bay.
Number 0208
MR. PARKER continued:
Now I'd like to go to the next part of my testimony
which is "What we should do now." ... Most of you
don't want to embarrass the governor by rejecting this
proposal, which we urge you to reject. What you can
do, short of that, is ask the governor step back, take
time. There's nothing wrong with hearing more from
the public and doing this later.
Now, the third part, and the final suggestions. First
of all, if EO 107 goes into effect then ... I would
suggest eleven possible amendments to the statutes.
First, I would put into statute a requirement that DNR
adopt very strict regulations to implement 870 and
840. To remove the (indisc.) and make it clear that
the statutes must fully protect fishery resources and
that they will be strictly construed.
Secondly, I would address this in statute -
qualifications of the deputy commissioner - and I
would parrot AS 16.05.010 which requires that he be a
professional with experience in the management of fish
and game. I would (indisc.) qualify that 1959 statute
to require that the person also have biological
training as a fisheries biologist.
Thirdly, I would address the overall need for a
mission statement for this deputy commissioner or this
staff in DNR and that mission statement should be very
straight, very specific, that there should be a no-
degradation standard for our fisheries.
Fourthly, I would enact a requirement for a task force
to report on how well this transfer is occurring. And
I would put on that task force, by statute, what
(indisc.) non-governmental agencies such as the
American Fisheries Society, as well as ADF&G.
Fifth, I would modify the defense that exists in civil
suits that a permittee who has obtained a permit is
not liable in a civil suit for legal errors that have
developed from the permit. I would modify that
defense so that it would only exist if ADF&G concurs
with the permit. That would create an incentive for a
permittee to bring order to both (indisc.) himself
from civil suits, for example, for public nuisance
which exists in both the 840 and 870, to bullet-proof
himself from damages claims if he has a permit that is
signed-off on by ADF&G also.
Sixth, I would address penalty and damages provisions
in both of these statutes, 840 and 870; (indisc.) and
I would make clear that both are [public nuisance
statutes]. And then I would make clear that both have
an (indisc.) so that if DNR does not do this ... the
public can. The great irony in 870, 840, and ... DNR
statutes, (indisc.) a public nuisance to block a
fisherman from having access to navigable waters, and
yet, it's not a public nuisance to block the fish from
having access to those waters? We need to fix that.
You guys need to fix that.
Seventh, I would maintain the public interest
exception to attorney's fees, liability, for suits
that seek to protect fish in this context, of 840 and
870. You should not repeal those if you want to have
an effective program at DNR because it is the public
that helps these programs to be effective.
Eighth, I would model portions of these statutes after
hazardous waste laws, in one specific sense. For a
permittee, I would make a (indisc.) of interest in
land that is subject to a permit while any of the
events could go wrong on account of that permit. And
you should do that if you are really serious about
protecting this state's largest, most lucrative,
renewable industry, which is fishing - commercial and
sport.
Ninth, I would implement notice provisions in the
statute that require [ADF&G] and responsible entities,
specifically like the American Fisheries Society, to
be (indisc.) no permit application.
Tenth, I would advise 870 and 840 to mimic the [FPA]
in one respect. And that is to presume, just as the
[FPA] presumes that a water body is an anadromous
water body if it is connected to an anadromous water
body ... you should know that 870 and 840 presume that
a body, so attached, and having had characteristics of
(indisc.), like the [FPA] says ... is also anadromous
and presumably important. The reason that I emphasize
"presumably important" is that 870 and 840 were
drafted in 1959 and actually pre-date the territorial
law, and by presuming that they are important, reflect
modern fisheries (indisc.) genetic diversity being
important.
Last, number eleven, I would move and (indisc.) in
ADF&G, certain specific, limited, land-use planning
and designation functions that are currently in DNR,
so that ADF&G can administratively act and designate
river corridors that are important for commercial,
sport, and subsistence purposes and conserve them, so
they will not be (indisc.).
Number 0926
COMMISSIONER IRWIN suggested, rather than continuing the
meeting, that on behalf of himself and Commissioner Duffy, staff
work together to combine notes and to compile a list of
questions. He said those questions would be answered in a
timely manner.
CHAIR SEATON concurred that this was an excellent idea, noting
that addressing questions or common themes that had been brought
up during the meeting would benefit the process.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
approximately 10:15 p.m.
| Document Name | Date/Time | Subjects |
|---|