Legislature(2023 - 2024)BARNES 124
02/13/2023 01:00 PM House RESOURCES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| Presentation(s): Water Primacy Update | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
February 13, 2023
1:04 p.m.
MEMBERS PRESENT
Representative Tom McKay, Chair
Representative George Rauscher, Vice Chair
Representative Josiah Patkotak
Representative Dan Saddler
Representative Jennie Armstrong
Representative Donna Mears
Representative Maxine Dibert
MEMBERS ABSENT
Representative Kevin McCabe
Representative Stanley Wright
COMMITTEE CALENDAR
PRESENTATION(S): WATER PRIMACY UPDATE
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
JASON BRUNE, Commissioner
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: Participated in the Water Primacy Update
presentation.
JULIE PACK, Assistant Attorney General
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: Participated in the Water Primacy Update
presentation.
SHANNON MILLER, Program Manager
Division of Water
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: Participated in the Water Primacy Update
presentation.
ACTION NARRATIVE
1:04:28 PM
CHAIR TOM MCKAY called the House Resources Standing Committee
meeting to order at 1:04 p.m. Representatives Rauscher,
Saddler, Patkotak, Armstrong, Mears, and Dibert were present at
the call to order. Representative Patkotak arrived as the
meeting was in progress.
^PRESENTATION(S): Water Primacy Update
PRESENTATION(S): Water Primacy Update
1:05:32 PM
CHAIR MCKAY announced the only order of business would be the
Water Primacy Update presentation.
1:06:09 PM
JASON BRUNE, Commissioner, Department of Environmental
Conservation (DEC), began the Water Primacy Update presentation
on slide 2 of a PowerPoint [hardcopy included in the committee
packet], which described the department's current primacy
programs and how they interact with specific federal
environmental legislation. He moved to slide 3, which explained
Senate Bill 27, [passed during the Twenty-Eighth Alaska State
Legislature], which mandated that DEC must take reasonable steps
to assume primacy of Section 404 of the Clean Water Act.
1:10:34 PM
JULIE PACK, Assistant Attorney General, Department of
Environmental Conservation, noted that EPA's current Section
404c veto power would be unaffected by passage of any primacy
assumption by the State of Alaska.
1:11:10 PM
REPRESENTATIVE SADDLER asked if EPA exercised its veto power
when it denied the Pebble Mine its permit.
MS. PACK clarified that is the power to which she was referring.
1:13:09 PM
MS. PACK moved to slide 5, which explained that Section 404(c)
regulates the discharge of dredged or fill material into the
waters of the United States and she described how it would
interact with a piece of state-level legislation.
1:14:00 PM
REPRESENTATIVE SADDLER asked what the ramifications of the
Sacket v. EPA case are.
MS. PACK explained the issue behind Sacket v. EPA and said that
the case is currently in litigation and before the United States
Supreme Court.
REPRESENTATIVE SADDLER asked what the implications of an
expanded definition of wetlands would have on Alaska's current
resource policy.
MS. PACK pointed to slide 11 to give context to how the EPA
currently inventories Alaska's wetlands.
1:17:22 PM
MS. PACK continued to slide 8, which explained the legal
ramifications of the state assuming control of a portion of the
lands defined under Section 404(g) of the Clean Water Act. She
moved to slide 9, which gave further context to the "legal
landscape" of Section 404(g) of the Clean Water Act and
continued to slide 10, which displayed a map of potential waters
to be retained by DEC if state legislation regarding the primacy
clause of Section 404 of the Clean Water Act were to pass.
REPRESENTATIVE SADDLER asked about the lands and waterways that
would be maintained under federal control.
MS. PACK responded that each blue line on the map shows which
waterway would be maintained.
CHAIR MCKAY asked how much of the waterways the state would
acquire under the primacy clause of the Clean Water Act.
MS. PACK explained that the primacy clause of the Clean Water
Act allows for only a certain amount of waters to be taken over
by a state.
1:21:42 PM
REPRESENTATIVE MEARS asked whether the primacy clause would
apply only to geographic possessions.
MS. PACK explained how the Clean Water Act interacts with state
land possessions.
REPRESENTATIVE PATKOTAK asked about the long-term financial
feasibility of the state owning current federal lands.
1:23:47 PM
COMMISSIONER BRUNE advised that the feasibility completed by DEC
specifically addressed the long-term viability and feasibility
of the possibility of the state assuming ownership of federal
lands.
SHANNON MILLER, Program Manager, Division of Water, Department
of Environmental Conservation, joined in the presentation on
slide 12, which gave context to the amount of wetlands and type
of wetlands in Alaska, and she explained that Section 404 is
meant solely for the regulation of discharge or filled materials
into the Waters of the United States (WOTUS). She continued
through slides 13-15, each of which explained legislative,
legal, and executive steps that the state has taken towards
assumption of lands included under Section 404 of the Clean
Water Act.
1:27:50 PM
MS. MILLER continued to slide 16, which displayed the
feasibility study titled "Clean Water Act Section 404 Dredge and
Fill Assumptions." She explained how the study was completed
and what it aimed to understand in its process.
REPRESENTATIVE SADDLER asked what the definition of the term
"general permit" is.
MS. MILLER explained that a general permit is a permit that DEC
may issue to an entity to allow for an easier authorization of
that entity on any future developments or projects pursued.
1:30:46 PM
REPRESENTATIVE ARMSTRONG asked for an example of how the United
States Army Corps of Engineers (USACE) may have handled a
project differently than the state would.
MS. MILLER explained that if a federal entity were to develop a
project that would unavoidably harm a wetland habitat, the
entity would have to set aside separate lands to create a "no
net loss" scenario of development. The state is looking to
create an alternative to the "no net loss" principle.
REPRESENTATIVE ARMSTRONG asked whether the federal government
has been cooperative with Alaska in creating a new alternative.
MS. MILLER answered that a memorandum of understanding (MOU) was
reached in 2018 between EPA and USACE that allows for the
cooperation between the federal government and states.
REPRESENTATIVE MEARS asked which divisions within DEC would
become more streamlined in their operation if the Section 404
primacy clause were to be adopted by the state.
MS. MILLER explained that the adoption of the Section 404
primacy clause by the state would allow for DEC to align its
permitting timelines with other state agencies.
1:34:23 PM
COMMISSIONER BRUNE added that there would be other opportunities
created within DEC if the Section 404 primacy clause were to be
adopted.
REPRESENTATIVE PATKOTAK asked what kind of opportunities would
be presented to local governments in Alaska if the state were to
adopt the Section 404 primacy clause.
MS. MILLER answered that DEC would create a "regional general
permit" to allow local governments within a region to adopt an
overarching general permit that would apply to any community
within said region of the general permit.
REPRESENTATIVE PATKOTAK asked what guardrails would be in place
to ensure that local control of permitting would be left intact
if the Section 404 primacy clause were to be adopted by the
state.
1:37:42 PM
MS. MILLER explained that a general permit is an umbrella-type
permit that would allow for any development or activity to be
authorized under it.
1:38:35 PM
REPRESENTATIVE PATKOTAK asked what percentage of authority of
permitting the state would assume if the Section 404 primacy
clause were to be adopted by the state.
COMMISSIONER BRUNE answered that DEC is trying to get as close
to 100 percent as it can get.
MS. MILLER added that the state would be able to eliminate the
"401 certification" as required by Section 401 of the Clean
Water Act if the state were to adopt the Section 404 primacy
clause.
1:40:45 PM
MS. MILLER resumed the presentation on slide 18, which described
how Alaska would be able to address waterway cleaning priorities
sooner if the Section 404 primacy clause were to be adopted.
She continued to slide 19, which explained how DEC would be able
to be more accountable to Alaskans under an assumed adoption of
the Section 404 primacy clause.
REPRESENTATIVE SADDLER asked whether the state has the authority
to delegate federal and state authority itself.
MS. MILLER explained different ways that DEC currently delegates
authority and manages policy throughout different levels of
government.
REPRESENTATIVE MEARS asked whether the proposed general permit
program would create regional offices with which Alaskans could
interact.
MS. MILLER replied that the feasibility study outlined a
scenario that created regional offices around Alaska.
COMMISSIONER BRUNE added that every DEC position statewide could
be teleworked, anywhere in Alaska, and he emphasized the
positive outcomes that teleworking has created for the
department.
REPRESENTATIVE MEARS shared her concern of the legislature
adopting a program that would be based off of Alaska's current
weaknesses in employee recruitment and retention.
1:47:56 PM
MS. MILLER responded that the proposed program created a robust
applicant pool compared to what other state departments in
Alaska have seen.
REPRESENTATIVE ARMSTRONG asked whether the pool of qualified
applicants is the same pool of people who would staff the new
program.
COMMISSIONER BRUNE emphasized that the retention of staff is
paramount to giving the regulated community timely, science-
based, and dependable permits.
REPRESENTATIVE ARMSTRONG asked whether DEC's requested funds
account for the cost of training the new recruits to the
program.
COMMISSIONER BRUNE confirmed that the funds requested by the
department absolutely include the cost of training new
employees.
1:51:31 PM
MS. MILLER resumed the presentation on slide 20, which described
the mixed benefits and challenges of the National Environmental
Policy Act of 1969 (NEPA). She continued to slides 21 and 22,
which explained the challenges of USACE retaining some of the
waterways it currently manages and displayed a map with an
example of how such a management system would work. She moved
to slide 23, which highlighted the need for MOUs between DEC and
EPA. Slide 24 described the workload that DEC would acquire and
the staffing necessary to assume the possible workload. Ms.
Miller moved to slide 25, which displayed a simplified cost-
benefit analysis of the proposed program by DEC.
1:56:16 PM
REPRESENTATIVE ARMSTRONG asked how confident DEC is in its
ability to not go over budget past 2025.
MS. MILLER answered that DEC anticipates its figure of $5
million is the correct amount.
COMMISSIONER BRUNE added that DEC completed its feasibility
study to analyze the trend of development in Alaska to create an
estimate of the number of positions the state would need to keep
up with development.
REPRESENTATIVE MEARS commented that permit fees do not generally
keep up with a department's funding needs and explained that it
would be necessary for DEC to be funded by the general fund.
COMMISSIONER BRUNE explained that the benefit of a general
permit is that there is a finite number of responsibilities for
each entity involved in the permitting process. He said that
there are multiple private entities who are willing to
participate in the proposed permitting program in order to
streamline the development of projects in Alaska.
2:04:07 PM
MS. MILLER moved to slide 26, which described the feasibility
study's recommendations of actions to be taken by DEC and the
legislature to enact the proposed permitting program.
COMMISSIONER BRUNE explained that the root of the Section 404
primacy clause is to return the decision-making process to
Alaska and continue to "raise the bar" of what environmental
conservation is to the rest of the country.
REPRESENTATIVE MEARS asked how the governor's supplemental
budget would assist DEC in creating its proposed permitting
program.
COMMISSIONER BRUNE replied that DEC has received permission to
pursue the efforts of returning primacy to the state
REPRESENTATIVE MEARS asked why there were so many people working
on the proposed permitting program and not the solid waste
program currently active at DEC.
COMMISSIONER BRUNE explained that the proposed permitting
program is more complex than the solid waste program.
2:11:00 PM
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:11 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 02.13.2023 HRES DEC 404 Overview.pdf |
HRES 2/13/2023 1:00:00 PM |