Legislature(2003 - 2004)
03/17/2004 01:07 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 17, 2004
1:07 p.m.
MEMBERS PRESENT
Representative Nancy Dahlstrom, Co-Chair
Representative Beverly Masek, Co-Chair
Representative Cheryll Heinze, Vice Chair
Representative Carl Gatto
Representative Bob Lynn
Representative Nick Stepovich
Representative Kelly Wolf
Representative Beth Kerttula
MEMBERS ABSENT
Representative David Guttenberg
COMMITTEE CALENDAR
HOUSE BILL NO. 522
"An Act relating to discharges from small commercial passenger
vessels; and providing for an effective date."
- MOVED HB 522 OUT OF COMMITTEE
SENATE BILL NO. 305
"An Act relating to state ownership of submerged land underlying
water that was navigable at the time Alaska achieved statehood."
- MOVED SB 305 OUT OF COMMITTEE
SENATE BILL NO. 295
"An Act extending the termination date of the Navigable Waters
Commission for Alaska; and providing for an effective date."
- MOVED SB 295 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 522
SHORT TITLE: SMALL CRUISE SHIP DISCHARGES
SPONSOR(S): STATE AFFAIRS
02/26/04 (H) READ THE FIRST TIME - REFERRALS
02/26/04 (H) RES
03/03/04 (H) RES AT 1:00 PM CAPITOL 124
03/03/04 (H) Heard & Held
03/03/04 (H) MINUTE(RES)
03/17/04 (H) RES AT 1:00 PM CAPITOL 124
BILL: SB 305
SHORT TITLE: ASSERTING STATE TITLE TO SUBMERGED LAND
SPONSOR(S): SENATOR(S) THERRIAULT
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) RES, FIN
02/18/04 (S) RES AT 3:30 PM BUTROVICH 205
02/18/04 (S) Moved Out of Committee
02/18/04 (S) MINUTE(RES)
02/19/04 (S) RES RPT 4DP 2NR
02/19/04 (S) DP: OGAN, SEEKINS, WAGONER, DYSON
02/19/04 (S) NR: STEVENS B, ELTON
03/01/04 (S) FIN RPT 3DP 3NR
03/01/04 (S) DP: GREEN, DYSON, BUNDE; NR: HOFFMAN
03/01/04 (S) OLSON, STEVENS B
03/01/04 (H) FIN AT 9:00 AM HOUSE FINANCE 519
03/01/04 (S) Moved SB 305 Out of Committee
03/01/04 (S) MINUTE(FIN)
03/04/04 (S) TRANSMITTED TO (H)
03/04/04 (S) VERSION: SB 305
03/08/04 (H) READ THE FIRST TIME - REFERRALS
03/08/04 (H) RES, FIN
03/17/04 (H) RES AT 1:00 PM CAPITOL 124
BILL: SB 295
SHORT TITLE: EXTEND NAVIGABLE WATERS COMMISSION
SPONSOR(S): SENATOR(S) THERRIAULT
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) RES, FIN
02/18/04 (S) RES AT 3:30 PM BUTROVICH 205
02/18/04 (S) Moved Out of Committee
02/18/04 (S) MINUTE(RES)
02/19/04 (S) RES RPT 4DP 1NR
02/19/04 (S) DP: OGAN, SEEKINS, STEVENS B, WAGONER
02/19/04 (S) NR: ELTON
03/01/04 (S) FIN RPT 4DP 2NR
03/01/04 (S) DP: GREEN, DYSON, BUNDE, STEVENS B
03/01/04 (S) NR: HOFFMAN, OLSON
03/01/04 (H) FIN AT 9:00 AM HOUSE FINANCE 519
03/01/04 (S) Moved SB 295 Out of Committee
03/01/04 (S) MINUTE(FIN)
03/04/04 (S) TRANSMITTED TO (H)
03/04/04 (S) VERSION: SB 295
03/08/04 (H) READ THE FIRST TIME - REFERRALS
03/08/04 (H) RES, FIN
03/17/04 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As chair of the House State Affairs
Standing Committee, sponsor of HB 522, explained the bill and
answered questions.
JOHN WATERHOUSE, P.E., President
Elliott Bay Design Group, Ltds.
Seattle, Washington
POSITION STATEMENT: During hearing on HB 522, provided
information, and answered questions regarding stability testing
requirements.
DAN EASTON, Director
Division of Facility Construction and Operation
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 522, provided
information and answered questions.
JOE BALASH, Staff
to Senator Gene Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 305 on behalf of Senator
Therriault, sponsor.
DICK MYLIUS, Deputy Director
Division of Mining, Land and Water
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Testified on SB 305; provided information
and answered questions.
JOANNE GRACE, Senior Assistant Attorney General
Opinions, Appeals
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: During hearing on SB 305, provided
information and answered questions.
MYRL THOMPSON
Wasilla, Alaska
POSITION STATEMENT: Testified on SB 305.
ZACK WARWICK, Staff
to Senator Gene Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 295 on behalf of Senator
Therriault, sponsor of the bill.
ACTION NARRATIVE
TAPE 04-15, SIDE A
Number 0001
CO-CHAIR NANCY DAHLSTROM called the House Resources Standing
Committee meeting to order at 1:07 p.m. Representatives
Dahlstrom, Masek, Gatto, Heinze, Lynn, Stepovich, and Wolf were
present at the call to order. Representative Kerttula arrived
as the meeting was in progress.
HB 522-SMALL CRUISE SHIP DISCHARGES
CO-CHAIR DAHLSTROM announced that the first order of business
would be HOUSE BILL NO. 522, "An Act relating to discharges from
small commercial passenger vessels; and providing for an
effective date."
Number 0056
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature,
speaking as chair of the House State Affairs Standing Committee,
sponsor of HB 522, directed attention to a letter contained in
the bill packet entitled, "Limitations on Modifying Small
Commercial Passenger Vessels." He noted that the letter
addressed concerns the committee had expressed during the
previous bill hearing with regard to the stability issue.
Representative Weyhrauch asked Co-Chair Dahlstrom if she would
like him to read the letter to the committee.
CO-CHAIR DAHLSTROM suggested it wasn't necessary to read the
letter into the record.
REPRESENTATIVE WEYHRAUCH explained that the bill was not
introduced until the House State Affairs Standing Committee had
something on the record that indicated some basis for having the
state affairs committee introduce it in the first place. He
indicated that the committee was interested in the position of
the state, the Department of Environmental Conservation (DEC),
the cruise ship industry, and also whether the it made sense
from a public policy view and if there was some consensus on the
desirability for this piece of legislation.
REPRESENTATIVE WEYHRAUCH suggested the small cruise ship
compliance program is misunderstood by some of the public. He
noted that a poll done by the Juneau Empire indicated that 77
percent of the people polled were opposed to this kind of thing.
Representative Weyhrauch said based on the way the question is
posed in the poll, he wondered what people were really
responding to. He said the bill does not affect anything
related to large cruise ships, exempt them from any [compliance]
programs, or affect the taxation issues. Furthermore, he said
the bill does not allow small cruise ships to pollute and is not
being done [at the industry's request]. He said this is
something that has been considered by state regulators and small
cruise ship operators in order to provide a policy framework
that allow [small cruise ships] to operate, and he suggested
small cruise ship operators have shown that they are
responsible. He said small cruise ship operators have also
shown that they need some relief from the standards that were
imposed by earlier legislation in order to keep operating in a
way that is still monitored by DEC and meets best management
practices (BMPs). Representative Weyhrauch said those are the
reasons the bill was introduced
REPRESENTATIVE WEYHRAUCH noted there would continue to be an
education effort. He said this legislation was recommended by
DEC and it keeps small cruise vessels in the passenger
compliance program, which is what it's all about. He noted that
the aforementioned letter was addressed in part to allay
Representative Heinze's specific concerns about stability.
Number 0538
CO-CHAIR MASEK said it seems the issues brought forward have
been dealt with, and she suggested the legislation seems
compatible with [DEC's policies]. She indicated she thought
protection is provided by the BMPs outlined in the bill and the
requirement for DEC to approve the plan for a three-year period
in order for small vessels to operate in Alaska's waters.
Number 0623
CO-CHAIR MASEK moved to report HB 522 out of committee with
individual recommendations and the accompanying fiscal notes,
and asked for unanimous consent.
Number 0635
REPRESENTATIVE GATTO objected for purpose of discussion. He
directed attention to page 3, lines 20-24, which read in part:
The department may adopt regulations to implement this
subsection but may not require an owner or operator to
retrofit a vessel solely for the purpose of waste
treatment if the retrofitting requires additional
stability testing or relicensing by the United States
Coast Guard.
REPRESENTATIVE GATTO noted that this language was previously
referred to as the "poison pill" clause. He asked
Representative Weyhrauch if he had heard that term used for this
language.
CO-CHAIR MASEK turned attention to a memorandum dated March 5 to
members of the House Resources Standing Committee from
Representative Weyhrauch. She said the memorandum deals with
the issue of the poison of the bill.
Number 0773
REPRESENTATIVE KERTTULA said the question from the public was
about this same issue and the language in question seems
somewhat confusing. Representative Kerttula asked if stability
testing is only required when the weight of the vessel has
changed.
Number 0909
JOHN WATERHOUSE, P.E., President, Elliott Bay Design Group,
Ltds., testified. Mr. Waterhouse explained that stability
testing is not like water quality testing, it requires that the
ship come out of service for a day and involves setting up test
equipment, moving weight on the ship, and then taking very
careful measurements to determine, from those weight movements,
what the center of gravity of the ship is. He said testing is
not something that operators will do as a matter of course
because it is so disruptive to operations. Mr. Waterhouse said
he thought the concern is that if a ship is modified, the U.S.
Coast Guard is likely to ask for a stability test to be done
because these are small vessels which have applied by name and
are typically under fairly stringent stability requirements. He
explained that there just isn't a lot of margin in those
requirements to accept new equipment or changes in the vessel,
which he believes is the concern of the operators.
REPRESENTATIVE KERTTULA said if something is changed on a ship
that would require the ship to have stability testing, it's
because something is being done that affects the stability of
the ship, which is the reason the testing is done. She asked if
stability testing is done because a problem has already
occurred.
MR. WATERHOUSE replied correct.
REPRESENTATIVE KERTTULA said that was the concern from members
of the public, and it certainly resolves her issue.
Number 1091
REPRESENTATIVE WEYHRAUCH offered his understanding that the term
"poison pill" came up because a member of the public who was
testifying used that phrase. He said it was alleged or stated
that [the bill] would have "short circuited" the department's
ability to require small passenger vessels to use new wastewater
treatment technology. He asked Mr. Waterhouse if he understands
the issue in terms of the question that one of the members had
raised about this section being called a poison pill.
MR. WATERHOUSE said he believes he understands the issue. He
said from his standpoint as an engineer, his customers are going
to be looking at wastewater treatment because it is an ongoing
changing technology. Some of the technologies that are
currently in the laboratories being developed may lead to
smaller systems that can be retrofitted into a ship that won't
impact the stability of the ship. He said knowing his customer
base, if that technology is available, they would be very
interested in applying it their ships. Furthermore, he said
their concern has to do with existing technology that could not
be used without major modifications.
MR. WATERHOUSE remarked, "They're concerned as operators, but I
would see how people on the other side may say that it's a
poison pill that they're just trying to avoid doing anything."
He said he thought what is being dealt with is technology in
progress. Mr. Waterhouse said that over the past five years the
cruise industry has put about $50 million into investigating and
experimenting with new water treatment technology, so it is very
much a work in progress.
REPRESENTATIVE GATTO said what is being discussed is wastewater
treatment. He said [the language in question specifies] that
the department may adopt regulations to implement this section,
but it exempts those that would be required to do any testing.
He said he thought this was sort of contradictory to what the
intent of the bill was and that it allowed an "escape clause"
that was pretty wide open.
REPRESENTATIVE WEYHRAUCH said he thought DEC should comment on
whether it believes that it is an escape clause that's going to
allow that to [happen]. He said he is curious too, and it
should be on the record.
Number 1275
DAN EASTON, Director, Division of Facility Construction and
Operation, Department of Environmental Conservation (DEC),
testified. He said his understanding of the [language in
question] is that DEC can't require an owner or operator to
retrofit a vessel solely for the purpose of waste treatment if
it requires additional stability testing. Mr. Easton said the
types of things that require additional stability testing would
primarily be for adding tankage or making substantial changes to
the vessel. He said DEC was going to try to avoid that in
working with the small cruise ship companies, and DEC believes
it can develop a set of regulations that protect water quality
and comply with water quality standards without requiring the
addition of major tankage that ultimately would require that the
vessels be stability tested.
REPRESENTATIVE GATTO said he thought it was good to get it on
the record, but it still seems contradictory to him. He
commented that it "tickles" some of his neurons and it says
there's something "goofy" here. He remarked, "In other words,
as long as you have an obligation that says you now have to have
a test, why you're excused."
Number 1432
REPRESENTATIVE WEYHRAUCH asked Mr. Waterhouse if there is a
correlation between testing and the U.S. Coast Guard certificate
of inspection licensing process.
MR. WATERHOUSE said he thought this may partly go back to the
misunderstanding of the testing. If it can be demonstrated to
the U.S. Coast Guard by calculations of weights on and weights
off of stability then the vessel does not need to be tested, and
the U.S. Coast Guard will accept that. He said if a wastewater
system is being changed out by another wastewater system that
weighs the same amount and it can be demonstrated by
calculations, the U.S. Coast Guard will not require a stability
test. The concern comes in when a system is being replaced by a
system that will require additional tankage and cause the U.S.
Coast Guard to mandate a stability test. Part of the problem is
that as a result of that stability test, if the vessel fails,
the work has already been done to the vessel. If it is suddenly
discovered that it no longer meets stability requirements, then
the situation is that the money has been spent on equipment, the
U.S. Coast Guard is saying the boat cannot be sailed because of
the equipment has been installed.
MR. WATERHOUSE said it is not testing for knowledge or for the
ability to do it, it is a reflection of the fact that as boats
grow older they tend to gain weight. He explained that every
little bit of weight on these kinds of vessels has to be watched
carefully because there are stringent safety and stability
requirements, and the U.S. Coast Guard is pretty rigorous about
enforcing those.
CO-CHAIR MASEK said the bill specifies that best management
practices will include such things as onboard treatment of all
wastewater to U.S. Coast Guard standards and whenever possible
require that all vessel discharge be made at least one mile
offshore traveling at six knots. She said the bill also says
the DEC assessment report concluded when small and large vessel
discharge underway they are able to meet all Alaska water
quality standards. She turned attention to page 53 of the
report that DEC came out with on the assessment of cruise ship
and ferry wastewater assessment impacts in Alaska. She said
schedules are going to be adjusted to minimize stationary
discharges; ships will avoid doing laundry while stationary, and
will work with manufacturers to develop new technology capable
of treating stationary discharges to higher levels on smaller
vessels.
CO-CHAIR MASEK noted that ships will utilize holding tanks to
the maximum extent to avoid stationary discharges, continue to
pay coastal protection fees to DEC, and continue to test,
monitor, and report wastewater discharges to DEC. Co-Chair
Masek said she thought [DEC] had come a long way in working with
this and is on board with [the bill]. She remarked, "I think
we've done all we can." She noted that Representative Kerttula
had worked hard with another issue that this came out of. She
said she thought it was a very good compromise and is encouraged
to see the committee making some headway.
REPRESENTATIVE GATTO commented that if the requirements are
already satisfied, then no action is needed. He asked if it is
satisfactory to simply discharge at a given rate of speed a mile
offshore, should the bill go beyond that since that satisfies
the requirements. The issue of removing equipment and replacing
it with equipment of the same weight may satisfy the weight
requirement, but probably not the balance requirement unless it
is placed in the same location, he added. Representative Gatto
told the members that the bill is not as clean as he would like
it to be.
REPRESENTATIVE GATTO emphasized that he would like to see small
ships prosper and is a strong supporter. When legislation
affects the smaller ships, he said he would like it to be clear
that the bill makes it easy for them to adopt the regulations
without causing some objections from the community and the U.S.
Coast Guard at some later date. Representative Gatto stated
that he does not believe that would occur with this bill, but in
reading the bill he thought it could use more work.
MR. EASTON said he can't address the question about why a bill
is needed if the vessels are complying underway. He said the
problem arises when the vessels are not underway.
Number 1841
REPRESENTATIVE GATTO withdrew his objection.
CO-CHAIR DAHLSTROM asked if there was further objection.
Hearing none, HB 522 was reported out of the House Resources
Standing Committee.
SB 305-ASSERTING STATE TITLE TO SUBMERGED LAND
CO-CHAIR DAHLSTROM announced that the next order of business
would be SENATE BILL NO. 305, "An Act relating to state
ownership of submerged land underlying water that was navigable
at the time Alaska achieved statehood."
Number 1891
JOE BALASH, Staff to Senator Gene Therriault, Alaska State
Legislature, presented SB 305 on behalf of Senator Therriault,
sponsor. Mr. Balash characterized SB 305 as a bill that deals
with the state's ownership of submerged lands under navigable
waters throughout the state, and he paraphrased from the sponsor
statement, which read [original punctuation provided]:
With the exception of withdrawn federal lands, at
statehood in 1959 Alaska received title under the
equal footing doctrine to all submerged lands under
state navigable waters and marine waters out to three
miles. Unfortunately, the federal government has been
slow to concede any navigability determinations.
Since Alaska entered the Union, the federal courts
have determined fewer than 20 rivers navigable.
Unless the state is pro-active in asserting its
claims, it stands to lose up to 60 million acres of
its statehood entitlement.
MR. BALASH noted that this bill lays out some criteria for
making the navigability determinations, and provides a list to
the public as well as interested parties. He continued:
In some cases, the federal government has used every
possible legal tactic under the Federal Quiet Title
Act to impede the state's assertion of ownership. The
Black, Kandig, and Nation Rivers in northeast Alaska
are examples. These three Rivers clearly meet the
criteria established by the federal courts for
determining navigability in Alaska. Although no one
contested the state's claim that these streams met the
federal criteria, this case took nine years and
millions of state and federal dollars to litigate.
Eventually the state won two of the three cases. The
third was resolved by a Federal Recordable Disclaimer
of Interest in 2003.
In addition, prior to 1989 the federal government
applied incorrect standards to determine navigability
and may have mistakenly conveyed state-owned land to
Native corporations, clouding the title to hundreds of
thousands, if not millions, of acres. This is a
critical topic as Congress considers a deadline for
completing the land selection and conveyance
processes.
MR. BALASH said the timeframe being discussed recently is 2009;
the hope is to have completed everything by then. He continued:
Contributing to the problem is the lack of a
reasonable and efficient way for the state to secure
title to its submerged lands. SB 305 takes three
steps to begin the process of identifying state
claims.
First, SB 305 provides notice to all parties that the
state is laying claim to all submerged lands, except
those withdrawn at the time of statehood, that meet
the standards and criteria established in the
Submerged Lands Act and in various federal court
decisions.
Second, it provides authority for state agencies to
identify, in accordance with the appropriate federal
and state laws, which water bodies the state claims as
navigable and non-navigable. This will help the state
clarify criteria for identifying navigable waters,
address conflicts involving clouded titles due to
inaccurate conveyances from the Bureau of Land
Management, and more clearly delineate its title
claims.
Third, the bill directs the Department of Natural
Resources to give notice to all private property
owners, including native corporations created under
the Alaska Native Claims Settlement Act, that may have
received title to lands that could have erroneously
included state submerged lands in their conveyances.
This is critical to resolve future problems regarding
mineral development, gravel extraction, access and
other related land uses.
This legislation is only one step for the state to
eventually resolve the title disputes over its
submerged lands, and deals only with the issue of
state title to submerged lands. It does not address
conflicts over federal fish and wildlife management in
state navigable waters created by federal reserved
water rights claims.
Number 2158
CO-CHAIR MASEK asked how much acreage may affect regional or
village Native corporations under this bill.
MR. BALASH replied that an accurate count had not been provided
by the Department of Natural Resources, and he is unaware of any
sort of estimate.
Number 2204
DICK MYLIUS, Deputy Director, Division of Mining, Land and
Water, Department of Natural Resources (DNR), testified. Mr.
Mylius, in response Co-Chair Masek's question, said DNR did not
have information about the amount of acreage relating to Alaska
Native Claims Settlement Act (ANCSA) or state lands that were
conveyed to ANCSA corporations.
Number 2252
REPRESENTATIVE HEINZE asked if any of the land erroneously
included in the conveyance were [Alaska Mental Health Trust
Authority] lands.
MR. BALASH replied that he is not certain that any lands have
been erroneously conveyed, but said there is that possibility.
He explained that it would take quite a bit of effort to go back
and take a look at the Bureau of Land Management (BLM) files on
navigability determinations and the land selected by ANCSA
corporations to see whether that has occurred.
REPRESENTATIVE HEINZE asked if it is not known how much land is
in question.
MR. BALASH replied correct.
Number 2309
REPRESENTATIVE HEINZE told the members that she remembers
fighting 10 years ago with DNR to try to get the navigable
definition down, so this is not a surprised. She asked how many
navigable rivers are affected.
MR. BALASH said the figures are quite astounding. He said there
are thousands of rivers and potentially tens of thousands of
water bodies [that could be affected]. There was a legislative
audit done a few years ago that tried to quantify it and it came
up with some high figures. Mr. Balash explained that the audit
was the basis for the formation of the state's navigability
certification team, a work group of agency personnel from the
Alaska Department of Fish & Game (ADF&G), the Department of
Natural Resources (DNR), and the Department of Law (DOL). This
group has been working fairly assiduously to try to quantify and
identify those areas where the state's sovereignty needs to be
asserted on navigable water bodies, so the state retains
management rights, as well as all of the privileges that come
with it.
REPRESENTATIVE HEINZE asked if the mapping department at DNR had
tried to map the 60 million acres.
MR. BALASH replied that he didn't think DNR has any statewide
maps, but he believes he has seen a map related to the Copper
River that identifies navigability in certain areas of the river
and its tributaries. He explained that the fiscal note does
provide funds for DNR to acquire files to incorporate into a
larger digital map, which would be available to the public, and
would help to identify those [areas] statewide.
REPRESENTATIVE HEINZE said she could remember that DNR used to
do a lot of mapping, and she was curious about where that's gone
in 10 years. She remarked, "We used to sit down and look at it
all to try to get the tentative approval for state lands."
Number 2433
REPRESENTATIVE KERTTULA asked if the amendment made to ANCSA
Section 901 was intended to resolve some of these issues. What
has happened since then to necessitate this legislation,
especially with respect to the turn on the burden of proof and
timelines, she asked. Representative Kerttula asked for someone
to provide her with the history of that amendment and asked what
this [bill] would do.
Number 2460
JOANNE GRACE, Senior Assistant Attorney General; Opinions,
Appeals and Ethics; Office of the Attorney General; Department
of Law, testified. Ms. Grace explained that there was an
amendment made to Alaska National Interest Lands Conservation
Act (ANILCA) that was intended to resolve a problem that was
created when BLM was conveying land to ANCSA corporations. The
problem was that in conveying land to ANCSA corporations, BLM
had to consider how much acreage it would convey to the
corporations. Therefore, it had to do navigability
determinations because to the extent that there were any
navigable waters on the lands that that were being conveyed it
could not charge the Native corporations for that land because
BLM didn't own that land, the state owned it, she explained.
Ms. Grace told the members that the navigability determinations
would become part of its conveyance decisions which would have
to be appealed if there was any disagreement with it. The
problem it created was that every time BLM did a determination
of nonnavigability and the state disagreed, the state was forced
to appeal it and litigate it in order to reserve its right or
claim to the title, she summarized.
MS. GRACE said the result was the ANCSA corporation conveyances
got tied up in all this litigation because the state had to
resolve navigability every time there was a disagreement. There
was an agreement made that was eventually codified that BLM
would get out of the business of doing navigability
determinations and it would simply not charge the ANCSA
corporations for any waterways that were greater than a
particular size (indisc. - coughing) and that they would now go
about actually doing any navigability determinations. She said
any lake over 50 acres or any river wider than 198 feet, [BLM]
would meander out and wouldn't charge the Native corporations
(indisc. - coughing) with that land, and would have to litigate
these issues.
MS. GRACE explained that Section 901 eliminated that statute of
limitations as it applies to the state, so the state could not
be forced to file suit every time BLM did the nonnavigability
determinations. She said it made the land conveyances go a lot
(indisc. - coughing) and a lot faster, but that was not intended
to prevent the state from ever asserting title over any
navigable waters. It was just a solution to the problem of
having to litigate every time BLM did a nonnavigability
determination, she explained.
Number 2629
REPRESENTATIVE KERTTULA asked for further clarification, as it
appears the problem has now shifted to the ANCSA corporations.
MS. GRACE told the members that the bill does not really change
anything in that regard, to the extent that the state's claim of
title to its navigable waters would mean that the state believes
it owns the body of water. The state has an obligation to the
public to determine whether it owns the waters and puts private
landowners on notice. It may start the statute of limitations
running, she commented.
Number 2707
REPRESENTATIVE KERTTULA asked why the bill is necessary if the
state already has the right to proceed.
MS. GRACE responded that one purpose of the bill is to put
people on notice that the state believes it owns the lands
underlying that water. To the extent that time passes between
statehood, the present, and as time goes on, there is a danger
in failing to assert title. Private landowners will believe
they own land, rely on that belief, and make investments. Mr.
Grace said that one of the main purposes of the bill is to
ensure that it is clear to everyone that just because the state
does not have final determinations on all rivers does not mean
the state doesn't own it. It is good public policy for
landowners and the public to know about state submerged lands
and waters so that the state can fulfill its public trust
obligations, she emphasized.
REPRESENTATIVE KERTTULA commented that originally the burden of
proof was on the state to prove navigability. She said she is
concerned that the [burden of proof] is shifting in an
unintended way. She said she is also concerned about the notice
requirement in Section 3. Representative Kerttula asked what
needs to be done to prove navigability. How would that change,
she asked. Representative Kerttula indicated that she believes
this process is being "speeded up" and it may not be as
thoughtful a process as is currently done.
MS. GRACE spoke to Representative Kerttula's concern regarding
Section 3 and advised the committee that this section is
intended to only be a general notice to the ANCSA corporations.
She explained that with the 2009 conveyance deadline the
property conveyances will be wrapped up. This is important
because BLM might have been using incorrect standards for
determining eligibility and the ANCSA corporations could be
charged for lands it actually does not own, she summarized.
This gives the ANCSA corporations the opportunity to ensure that
the correct standards are used. A generic letter will go out to
all native corporations within 180 days, she added.
REPRESENTATIVE KERTTULA surmised that there is no navigability
determination that goes along with that notice.
MS. GRACE replied that is correct. She told the members that
this notice will ensure that ANCSA corporations do not lose
their chance to address being incorrectly charged for these
lands.
REPRESENTATIVE KERTTULA commented that this notice does not
trigger any kind requirement that the Native corporation do
anything before the 2009 deadline. She asked if there is
anything new. Will the statute of limitations change,
Representative Kerttula asked.
Number 2949
MS. GRACE replied that is correct. The only urgency would be if
a Native corporation wanted to ensure that it was not
incorrectly charged for acreage that will ultimately be closed,
she said. It does not affect the statute of limitations, Ms.
Grace added.
TAPE 04-15, SIDE B
CO-CHAIR MASEK commented that Representative Kerttula brought up
some critical topics. In 1989 the U.S. Court of Appeals, Ninth
Circuit Court, ruled that incorrect standards were applied by
BLM in determining navigable waters. She asked what else has
been done since that time.
MR. BALASH said he believes that BLM has been applying the
standard which was setout in the Gulkana decision [Alaska v.
Ahtna, Inc.] and then later refined in a subsequent decision
that was delineated in the Black River decision.
Number 2923
MYRL THOMPSON testified on SB 305. He said that he believes
this bill will not only affect Native corporations, but private
property owners too. Mr. Thompson asked if a river runs through
a private landowner's property, for example, if an individual
owns a 70 or 80 acre tract of land, does this mean that the land
under the river belongs to the state. He commented that he has
been paying taxes on a part of a river where he owns property.
Mr. Thompson said he would like to know how this bill will
affect him.
Number 2861
MR. BALASH replied that he does not know the particulars related
to the land Mr. Thompson owns, and would not be able to provide
him with any advice. He suggested that Mr. Thompson's deed
would delineate where there are exceptions to the tract of
acreage. For example, a right-of-way or easement that might be
recorded across his property would be noted on the deed. Mr.
Balash summarized that the state does own submerged lands unless
it was withdrawn by the federal government prior to statehood.
CO-CHAIR DAHLSTROM told Mr. Thompson that she believes Mr.
Balash is correct in stating that it would be inappropriate for
him to advise him in this setting. She said she is confident
that if Mr. Thompson called the Department of Natural Resources
or his Representatives' offices they could provide assistance in
getting answers to his question.
MR. THOMPSON said he does not agree. He added that Co-Chair
Masek is his representative. Mr. Thompson clarified that he
would like an answer to his question. The response does not
have to be for his specific circumstances, he said. He
explained that he was using his circumstances as a hypothetical
example. Mr. Thompson posed another hypothetical example of an
individual who owns 60 acres and three of those acres are river.
If the river is the state's land in actuality then why would
that individual have to pay property taxes on the land, he
asked. Mr. Thompson pointed out that this bill may be a drain
on boroughs that rely on property taxes for revenue, because all
these individuals will be exempt from paying property taxes on
these lands.
MR. THOMPSON stated that the way his deed reads, he owns the
land under the river and is being charged taxes for it.
Number 2726
MR. BALASH responded that if the federal government conveyed
that land to Mr. Thompson and erroneously conveyed that riverbed
to him, then he may have a problem. However, if the state
conveyed the land and title to Mr. Thompson [then there is not a
problem]. The state is capable of conveying its title to him,
but the federal government cannot convey title without the
state's permission, he concluded.
MR. THOMPSON replied that Mr. Balash's comment is some comfort,
but it still does not answer the question about tax liability.
He restated the hypothetical example that if he owns 57 acres of
land and three acres of it are water, which he is paying taxes
on, who will make up the difference in property taxes to the
boroughs [when he no longer pays taxes on those acres].
MR. BALASH told Mr. Thompson that the question he has with
respect to how he is being assessed by the borough for property
tax purposes is a question that needs to be taken up with the
borough. He said he believes the property tax bill would
identify that information. The borough accessor's office would
also have the information as to whether he is paying taxes for
the value of the riverbed, he added.
Number 2648
MR. THOMPSON replied that he is indeed paying the taxes on the
riverbed and has since he purchased the property. That is the
problem.
CO-CHAIR DAHLSTROM encouraged Mr. Thompson to talk with local
officials or call her office or his representative's office for
further assistance.
REPRESENTATIVE KERTTULA asked if Mr. Mylius could describe
whether there will be any change in navigability determinations.
MR. MYLIUS responded that DNR does not plan on making any
changes in the process of making navigability determinations.
He said that Section 2 of the legislation directs DNR to compile
a list of existing navigability determinations, which are
primarily done by BLM, but the state may have had a part in the
decisions. He commented that there is no where to go to find a
list of what has already been done, so DNR is taking on the task
of putting together a list and map.
MR. MYLIUS emphasized that Section 3 of the bill provides for
the state to send generic notifications to the Native
corporations which says that the corporations may have been
conveyed navigable waters, but there won't be information on
what rivers have been found to be navigable.
CO-CHAIR MASEK moved to report SB 305 out of committee with
individual recommendations and the accompanying fiscal notes.
Number 2495
REPRESENTATIVE GATTO objected. He told the members that he has
a question on the fiscal note. The numbers do not add up
correctly, he said. He said it looks like $186,500.
MR. BALASH asked if Representative Gatto is adding up the line
items and coming up with a different number than $186,[500].
REPRESENTATIVE GATTO responded that he is looking at the
analysis. He referred to the list of positions and salaries and
said the amount is over $186,[500].
MR. BALASH pointed out that a number of these positions and
salaries are for a multiple number of years which would account
for the amount being over $186,[500] for one fiscal year. The
fiscal note covers FY05, FY06, and FY07. He commented that
compiling this list will be a lengthy process.
CO-CHAIR DAHLSTROM reminded the members that the next committee
of referral is the House Finance Committee, where every dollar
in the fiscal note will be examined.
Number 2391
REPRESENTATIVE GATTO withdrew his objection.
There being no objection, SB 305 was reported out of the House
Resources Standing Committee.
SB 295-EXTEND NAVIGABLE WATERS COMMISSION
CO-CHAIR DAHLSTROM announced that the final order of business
would be HOUSE BILL NO. 295, "An Act relating to the publishing
and furnishing of certain public notices regarding regulations
or rules of certain state agencies; relating to distribution of
the Alaska Administrative Code, Alaska Administrative Register,
and supplements to the code or register; and providing for an
effective date."
Number 2380
ZACK WARWICK, Staff to Senator Gene Therriault, Alaska State
Legislature, presented SB 295 on behalf of Senator Therriault,
sponsor of the bill. He told the committee that a lot of what
SB 295 does piggybacks on SB 305. In 2002 the Alaska State
Legislature created the Joint Federal and State Navigable Waters
Commission made up of seven state and federal members. The
purpose was to create a working group to come to consensus on
three objectives. The first was to expedite the process of
obtaining title to the state's submerged lands. The second was
to determine which bodies of waters are navigable and non-
navigable, which would piggyback some of the work that is being
done through SB 305. The third objective was to provide
recommendations to the state and federal governments on ways to
improve the process of making navigability determinations and
obtain title to the state's submerged lands in a fair and
expeditious way.
Number 2304
MR. WARWICK said unfortunately, in 2002 after the state
legislation passed, the federal legislation did not pass. So
the Joint Federal and State Navigable Waters Commission never
met. All this bill does is extend the sunset date for two
years. It is hoped that the Alaska delegation will introduce
federal legislation that will authorize the federal portion of
the commission. This is an effort to build consensus on how to
proceed.
CO-CHAIR DAHLSTROM announced for the record that Dick Mylius,
Deputy Director, Division of Mining, Land and Water, Department
of Natural Resources is on line to answer questions.
Number 2278
REPRESENTATIVE WOLF asked if the commission will in any way slow
down or compromise the process with the federal government.
MR. WARWICK replied he does not believe so.
Number 2252
CO-CHAIR MASEK referred to the sponsor statement with respect to
renewing the sunset, and asked if Mr. Warwick knows if federal
lawmakers look favorably on this kind of legislation.
MR. WARWICK replied that in 2002 there was legislation
introduced, it received one committee hearing, but it did not
move. He said he could not comment on the possibility of
federal legislation passing.
CO-CHAIR MASEK asked if SB 295 passes will the commission
proceed without the federal legislation passing.
Number 2174
MR. WARWICK commented that when this legislation passed in 2002
there was a zero fiscal note. The state membership was never
appointed and no work was done, he explained. He told the
members that there was agreement with DNR that no membership
appointments would be made until the federal legislation passes.
Number 2165
REPRESENTATIVE HEINZE asked if after 40 years of dispute does
Mr. Warwick believe a two-year extension is enough. She asked
if the seven state and federal representatives had been
appointed and are currently working.
MR. WARWICK replied no.
REPRESENTATIVE HEINZE again questioned whether two years is long
enough.
MR. WARWICK responded that he does not know, but given that a
lot of work will be done through SB 305, he believes two years
should be adequate.
CO-CHAIR MASEK moved to report SB 295 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, SB 295 was reported out of House
Resources Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:13 p.m.
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