Legislature(2003 - 2004)
03/11/2003 06:34 PM House STA
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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 STATE AFFAIRS STANDING COMMITTEE
March 11, 2003
6:34 p.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative Nancy Dahlstrom
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
EXECUTIVE ORDER 107 - TRANSFER OF HABITAT FUNCTIONS FROM ADF&G
TO DNR
- HEARD AND HELD
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
KEVIN DUFFY, Acting Commissioner
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: During the hearing on EO 107, explained the
reorganization of ADF&G.
TOM IRWIN, Commissioner
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: During the hearing on EO 107, explained the
role of DNR in the transfer of the habit division.
KERRY HOWARD, Acting Director
Division of Habitat and Restoration
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on
EO 107.
CHRIS KENNEDY, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
POSITION STATEMENT: Answered questions during the hearing on
EO 107.
PAM LaBOLLE, President
Alaska State Chamber of Commerce
Juneau, Alaska
POSITION STATEMENT: Testified in support of EO 107.
ALEX WERTHEIMER
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to EO 107 and
offered his perspective as a fisheries biologist.
RON WOLFE, Corporate Forester
Sealaska Corporation
Juneau, Alaska
POSITION STATEMENT: On behalf of the Sealaska Corporation,
testified in support of EO 107.
CARL ROSIER
Juneau, Alaska
POSITION STATEMENT: Testified as a concerned citizen and as a
former commissioner of ADF&G in opposition to EO 107.
DAVE HANNA
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to EO 107.
AURAH LANDAU
Juneau, Alaska
POSITION STATEMENT: During hearing on EO 107, pointed out that
no authority would exist for stream-buffer enforcement,
protection, and monitoring on federal land, and explained the
effects to the state as a consequence.
ERIC LEE
Petersburg, Alaska
POSITION STATEMENT: Testified to explain why efficiency and
streamlining, as stated goals of EO 107, are inappropriate and
dangerous priorities for managing the habitat, and to ask the
committee to overturn EO 107.
BRUCE BAKER
Auke Bay, Alaska
POSITION STATEMENT: Testified as a retired deputy director of
the Division of Habitat and Restoration, urging the committee to
reject EO 107.
FRANK RUE
Juneau, Alaska
POSITION STATEMENT: Testifying on behalf of himself and
referring to his previous work experience for both DNR and
ADF&G, explained why moving the Division of Habitat and
Restoration out of ADF&G would lose efficiency; urged the
committee to reject EO 107.
PAULA TERRELL
Alaska Marine Conservation Council (AMCC)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to EO 107; defined
single versus multiple permits, listed questions for the
committee to consider, and stated a list of minimum requests
intended for the administration through the legislature.
GENE HARRISON
POSITION STATEMENT: Testified on behalf of himself regarding
the loss of checks and balances resulting from EO 107 and to
urge the committee not to support it.
LANCE TRASKY
Anchorage, Alaska
POSITION STATEMENT: Testified as a fisheries biologist with 30
years' experience, asking the committee not to change a system
that is efficient and effective, but to reject EO 107.
DOUG HILL
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of himself to clarify
the Fraser [Institute] report, to describe EO 107 as a serious
threat to fish and wildlife, and to urge the committee to reject
EO 107.
DAN ROSENBERG
Anchorage, Alaska
POSITION STATEMENT: Testified that he has worked for ADF&G for
the past 20 years in what is currently the Division of Wildlife
Conservation, and described EO 107 as counterproductive to both
Alaska's economy and its environment.
JOHN STURGEON
Koncor Forest Products
Anchorage, Alaska
POSITION STATEMENT: Testified in support of EO 107, saying he
thinks it will bring more efficiency to state government.
BILL STEVENS, President
Cassandra Energy Corporation
Anchorage, Alaska
POSITION STATEMENT: Testified in support of EO 107.
PAUL SHADURA II, President
Kenai Fishermen's Association
Kenai, Alaska
POSITION STATEMENT: Commented on reports relating to EO 107 and
suggested ways to strengthen it.
DON CORNELIUS
Petersburg, Alaska
POSITION STATEMENT: During the hearing on EO 107, testified as
a retired ADF&G biologist in regard to the role of habitat
biologists in applications for permitting and the link between
agencies.
MIKE MILLIGAN
Kodiak, Alaska
POSITION STATEMENT: Brought a fiduciary concern to the
attention of the committee and said he is "somewhat cautious"
and against EO 107.
TIM JUNE
Haines, Alaska
POSITION STATEMENT: Testified as a 22-year commercial
fisherman; urged the committee to soundly reject EO 107 and to
increase the budget to the habitat division.
BILL HAUSER, Ph.D.
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to EO 107 as a
fisheries scientist with over 30 years' experience.
WILLY DUNN
Homer, Alaska
POSITION STATEMENT: Testified that he thinks EO 107 will have
long-term negative impacts on [Alaska's] fish and wildlife; will
precipitate lawsuits; and is an issue that should be taken on by
the legislature and the public, rather than by executive order.
NICKY SCARZI
Homer, Alaska
POSITION STATEMENT: Testified on EO 107; questioned whether
habitat biologists will be as readily accessible in DNR as they
are in ADF&G, and answered a question regarding Title 16
permitting.
SETH LITTLE
Alaska Center for the Environment (ACE)
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of ACE to define the
missions of ADF&G and DNR, to predict the effect of EO 107 on
the existing system of checks and balances, and to urge the
legislature to support the resolution to disapprove EO 107.
ERIC KNUDSEN, Ph.D.
Anchorage, Alaska
POSITION STATEMENT: Testified as a professional fisheries
scientist with over 20 years' experience to list three
scientifically-based points that argue for a resolution to
reject EO 107.
DALE PIHLMEN
Ketchikan, Alaska
POSITION STATEMENT: Testified that he is against EO 107 as a
proposal that would dramatically weaken protection of the areas
essential to the fishing and tourism industries for the short-
term gain of the timber industries.
MATTHEW LaCROIX
Wasilla, Alaska
POSITION STATEMENT: Testified as one of 22 habitat biologists
and permitters in ADF&G's Division of Habitat and Restoration
who received a layoff notice; summarized the impacts the
proposed executive order will have and asked the committee to
support the joint resolution rejecting EO 107.
GARVAN BUCARIA
Wasilla, Alaska
POSITION STATEMENT: Testified by citing references to the state
constitution and asked the committee to reject EO 107.
ACTION NARRATIVE
TAPE 03-21, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 6:34 p.m. Representatives Holm,
Dahlstrom, Lynn, Berkowitz, and Weyhrauch were present at the
call to order. Representatives Seaton and Gruenberg arrived as
the meeting was in progress.
EXECUTIVE ORDER 107 - TRANSFER OF HABITAT FUNCTIONS FROM ADF&G
TO DNR
[Contains discussion of HB 78]
Number 0033
CHAIR WEYHRAUCH announced that the only order of business was
Executive Order (EO) 107, transferring habitat functions from
ADF&G to DNR.
Number 0091
KEVIN DUFFY, Acting Commissioner, Alaska Department of Fish &
Game (ADF&G), referred to a handout titled "Reorganization
Proposal In Accordance With Executive Order No. 107" [in
committee packets] that he said he'd summarize. He noted that
under the category of functions moving to the Department of
Natural Resources (DNR) there are 36 positions, including those
for Title 16 fish passage and anadromous fish stream permitting;
the anadromous waters catalog, a regulatory function; project-
related research and monitoring; consistency reviews; ACMP
[Alaska Coastal Management Program] plan review; review of 6217
documents; the coastal boundaries atlas; and Forest Resources
and Practices Act ("Forest Practices Act") permitting.
ACTING COMMISSIONER DUFFY said within ADF&G are a certain number
of habitat functions maintained and moved into other operating
divisions. He noted that under the category of "functions
moving to sport fish" are 18.5 positions, including those for
the fish stream surveys and data base; various research and
restoration projects; oil spill contingency plan reviews; ACMP
support to the ADF&G commissioner; and [not included in the list
on the handout] the Kachemak Bay National History and Research
Reserve program.
ACTING COMMISSIONER DUFFY noted that under the category of
"functions moving to wildlife conservation" are 5.5 positions,
including those for special areas permitting; access defense;
the "CARA/SWG" program; and the North Slope grizzly project. He
noted that the two positions moving to the functions of
"community fish" are for log transfer facility (LTF) dive
surveys and mariculture leasing efforts. He noted that there is
also one position in the ARLIS [Alaska Resources Library and
Information Services] library in Anchorage, which will be moving
under the Exxon Valdez Oil Spill (EVOS) trustee council
structure that will be maintained at ADF&G.
Number 0282
ACTING COMMISSIONER DUFFY referred to the next set of pages in
the handout. He explained that the first flowchart shows DNR
and its area offices. He pointed out the chart for ADF&G and
one for Kachemak Bay Research Reserve. He indicated that some
charts were not included because they would cause confusion. He
pointed out the wildlife-component chart and the EVOS-component
chart, located on the next page of the handout.
ACTING COMMISSIONER DUFFY referred to the fourth page [after]
the cover page, which shows anticipated layoffs and vacant
positions to be deleted. He said 12 vacant positions aren't
going to be filled, and this streamlining effort is anticipated
to result in a layoff of approximately 22 employees. Noting
that 36 ADF&G habitat positions will move to DNR, he said a
remainder of 38 positions will move into other ADF&G divisions.
ACTING COMMISSIONER DUFFY referred to a flowchart on the next
page that identifies a new structure under DNR. The following
page shows the positions to be moved into the Division of Sport
Fish and where they will be located. He noted that the last
page of the handout is a press release. He reminded the
committee that he and Commissioner Irwin did a "press
availability" last Friday afternoon. He deferred further
comments to Commissioner Irwin.
Number 0424
TOM IRWIN, Commissioner, Department of Natural Resources, began
by giving the committee a background of the process to date. He
said he feels that a select team was put together, made up of
representatives from the habitat division and DNR, individuals
who have worked on the "permit schemes," and various
representatives from "the legal side." These individuals have
been meeting regularly in order to be prepared. He thanked all
those involved for the incredible amount of work done. He noted
that others were available to answer questions.
COMMISSIONER IRWIN highlighted his experience in business,
permitting, and natural resources. He emphasized his belief
that this change will work. He offered the belief that it's an
appropriate, comprehensive idea that will be good for the state,
for business, and for the environment. He said no one would be
short-circuited through the process because each is vital. He
said [EO 107] will facilitate efficiencies believed to be
critical. He added that he welcomes the significant number of
people who will be coming to DNR from the habitat division.
Number 0613
COMMISSIONER IRWIN referred to an organizational chart, the top
of which shows the "Office of Habitat Management and
Permitting." He explained that it has a direct line into the
office of the commissioner and won't be "blended away" with
another office with another department. He noted that the
bottom of the chart shows seven area offices, a simplification
from the previous system of having field and regional offices.
What dictated the areas was the amount of work being done; these
area offices will report "into an operations manager, into a
director." Commissioner Irwin said he is convinced that
competent people will move over and will get the full attention
they deserve for protecting the habitat.
COMMISSIONER IRWIN disagreed with the notion that ADF&G wouldn't
work with DNR and that there would be a complete separation. He
said he and Acting Commissioner Duffy will work out a memorandum
of understanding (MOU) to make sure nothing falls through the
cracks. Stressing that there would be no sacrifice to
[Alaska's] environment, he noted that he has three Alaska-born
grandchildren for whom he wants two things: for them to be able
to work in Alaska, and for Alaska to be as environmentally
special for them as it is for him.
Number 0800
COMMISSIONER IRWIN referred to the Fraser [Institute] report.
He said it is very sobering to read the report, which polls the
major mining companies in the world yearly; he indicated the
results for 2002 have been published and he is embarrassed for
Alaska. The poll is in two parts: the resources, for which
Alaska ranks very well, and the political perception, based on a
score of 0-100, with 100 being the best. Alaska "ranked" 50, he
said. Commissioner Irwin remarked, "Whether it's perception or
reality, they vote with their pocketbook. They're telling us
now that the major mining companies find it more politically
acceptable to do investment in both Russia and China than
Alaska." Indicating Alaska needs to change that perception, he
opined that [the state] can develop resources in a very
responsible and effective manner while protecting the
environment.
Number 0906
ACTING COMMISSIONER DUFFY said he and Commissioner Irwin have
been working hard to ease the reorganization and transition of
staff to DNR. He said ADF&G is very fortunate to employ many
talented staff in its habitat division; their skills will still
be available to maintain and protect the state's important fish
and wildlife habitat resources in both agencies, under EO 107.
He told the committee that Governor [Murkowski] has said the
level of habitat protection will not be diminished, and "this is
an expectation that all of us hold." He said he is working to
ensure that those who are moving to DNR will continue to
regularly have contact with ADF&G and their counterparts there.
He noted that Commissioner Irwin had referred to an MOU that
will be part of that structure.
ACTING COMMISSIONER DUFFY said some employees in ADF&G's habitat
division feel their integrity has been challenged recently. He
said, "I want to go on record as saying that your work speaks to
your professionalism and your dedication, as professional
employees for the State of Alaska." He added, "The important
work that these people do in balancing responsible development
with the long-term needs of fish and wildlife habitats and users
of these resources will continue under this new executive
order."
Number 1003
CHAIR WEYHRAUCH noted that Sitka doesn't have a regional office
or field office where biologists are working. He asked, "Do
they get subsumed in your flowchart here, to Juneau or
Petersburg, Prince of Wales? Where do those folks go?"
COMMISSIONER IRWIN answered, "The state has a very
straightforward bidding; we don't choose that. We've chosen the
positions that we need to accomplish the work." He said a
prioritization was made with respect to where the work needed to
be done; vacancies are shown on the charts in the handout. He
mentioned seniority, the bidding procedure, and an opportunity
to either remain in [ADF&G] or come over into "habitat."
CHAIR WEYHRAUCH asked if the Sitka office will close.
COMMISSIONER IRWIN answered yes.
CHAIR WEYHRAUCH asked Commissioner Irwin to respond to the
following:
The argument has been made that with the state having
a cadre of biologists in ADF&G doing permitting review
that are now being transferred to DNR, ... the state,
... particularly on federally licensed projects like
hydroelectric development, ... would be losing the
expertise with [its] biologists, or losing the
manpower to do the analysis, and then the permitting
review would go to federal agencies like Fish and
Wildlife Service, which would in fact slow down
projects.
Number 1090
COMMISSIONER IRWIN responded that he clearly stands for the
state doing everything it can on its own. He related his belief
in state's rights and said he'd like to see the state doing
more; for example, he feels strongly that the state should be
doing its own National Pollutant Discharge Elimination System
(NPDES) program. He deferred to his staff.
CHAIR WEYHRAUCH reiterated his question. He added that he is
particularly concerned with the Lake Dorothy hydroelectric
project.
Number 1154
KERRY HOWARD, Acting Director, Division of Habitat and
Restoration, Alaska Department of Fish & Game, responded:
In the group of habitat biologists that will be moving
to DNR, along with the Title 16 functions that you've
heard, they will be performing both under "840" and
"870." The same group of biologists will also
continue to review land-use planning documents,
whether they are federal or state, so the expectation
is, the biologists at DNR will continue to perform
that function.
With hydro projects, the circumstance will continue to
be what we have right now. Under Federal Energy
Regulatory Commission, or FERC, they ... are required
to seek the input of the Department of Fish & Game.
That authority has always been vested in the Division
of Sport Fish. That will continue to be there to the
extent [that if] they want input from habitat
biologist at DNR, there will habitat biologists at DNR
that they can continue to work with.
CHAIR WEYHRAUCH stated the following:
I want some assurance [that] we're not going to slow
down resource development and permitting by this,
because that's essentially what I understand is a
deficiency to expedite permitting and permitting
review. So I don't want to, by default, say we
transfer this and slow it down and defer to federal
entities to review what the state should be doing in
looking out for the state's interest. That to me is
not in the state's interest.
Number 1220
MS. HOWARD, regarding the spread of functions that are moving to
DNR, continued as follows:
We calculated that it would take, to do the exact work
with the same number of people we have now, 44. We
are moving over approximately 37 positions, and of the
group that is being lost, many [are] in the management
structure because we're simply downsizing. So, the
office at DNR will no longer sustain a director, a
deputy [director], an assistant, [and] three regional
supervisors, who all have contributed time to that
effort.
We're also losing some support staff at the lower end,
but it's [hoped] that by moving to DNR, ... you gain
some efficiencies by being able to use their
[administrative] staff at that end. So, largely, the
biologists and staff who work on those reviews will be
moving over and can continue that function.
Number 1263
CHAIR WEYHRAUCH suggested that losing some of the local offices
results in loss of a certain amount of local expertise such as
knowledge of areas and habitats. He said, "I trust you're going
to be traveling and not just doing everything by phone and fax.
... You've got to be on the ground looking at these areas in
order to do your review. Is that correct?"
MS. HOWARD said yes; clearly, part of a habitat biologist's job
is both pre-inspection and post-monitoring of projects. She
said "we" know how critical that is to have projects done right.
She said the challenge will be faced in having two area offices
close in Sitka and Ketchikan. The workload from Sitka will
likely spill over to the Juneau office, whereas the Ketchikan
workload will probably be absorbed by staff in the Prince of
Wales Island office. Therefore, she said, field visits will
continue to be on a list of things habitat biologists do to
complete their job.
Number 1353
CHRIS KENNEDY, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law (DOL),
responded to a question from Chair Weyhrauch. He said the main
reason for the delegation of habitat-related authorities to a
deputy commissioner [in the past] was to preserve the checks and
balances of the Forest Practices Act. He continued:
The assignment of duties to a deputy commissioner or
to the state forester is consistent with the way many
other things are done in the Department of Natural
Resources, where a number of duties are assigned, for
example, to the director of the Division of Lands, by
statute. In this case, before the EO, the Forest
Practices Act sets up a series of checks and balances
whereby the Department of Natural Resources, acting
through the state forester, defers to the expertise of
the Department of Fish & Game on habitat matters.
Since the habitat expertise will be moving over to the
Department of Natural Resources, it was necessary to
create two co-equal positions in the Department of
Natural Resources so that that deference and
consultation could take place, so that the functions
that used to be assigned formally to the commissioner
of natural resources are now assigned to the state
forester, and the functions that have come across from
[ADF&G] are assigned to a deputy commissioner in the
Department of Natural Resources. Each of those
individuals will report to the commissioner of natural
resources, who can resolve any disagreement between
them.
Number 1446
CHAIR WEYHRAUCH asked if the commissioner of DNR is still "in
the appellate loop, so to speak."
MR. KENNEDY answered that's correct. In response to a follow-up
question, he said the final decision on permitting is "a little
bit of a separate question and a little bit more complicated."
CHAIR WEYHRAUCH recommended that Mr. Kennedy not go into it
right now.
MR. KENNEDY said that in forest practices, the commissioner [of
DNR] is the ultimate referee.
Number 1476
ACTING COMMISSIONER DUFFY, in response to questions from
Representative Berkowitz, said EO 107 was the administration's
idea.
REPRESENTATIVE BERKOWITZ explained the reason for his question
was because the transition advisory group recommended holding
the decision until the new ADF&G commissioner is in place and
the new director of the habitat division has had time to
evaluate, which hasn't happened yet. He asked about the process
that led to this decision. He asked if ADF&G was involved at
the commissioner level or division director level, if there were
meetings held, and, if so, what happened in those meetings.
ACTING COMMISSIONER DUFFY replied that he had discussions with
the new administration on this particular issue, but isn't aware
of a whole series of meetings where DNR participated. He said
the governor's office made the call to move forward.
Number 1554
REPRESENTATIVE BERKOWITZ asked Acting Commissioner Duffy
whether, in his conversations prior to the EO, he'd recommended
for or against this approach.
ACTING COMMISSIONER DUFFY responded that options were
considered, that he'd had some options in mind, and that the
decision was made to proceed in this fashion. He worked for the
governor when that policy call was made; thus it is his job to
follow that decision.
REPRESENTATIVE BERKOWITZ clarified that he is trying to
understand how a decision was made with such far-reaching
implications if it were done over the recommendations of the
acting commissioner. He asked what process was involved, who
was consulted, and how far out these decisions were made.
ACTING COMMISSIONER DUFFY responded that it is not accurate to
say the decisions were made "over the recommendations of the
acting commissioner." He reiterated his involvement in
discussions on options regarding how permitting could be
streamlined. He said, "Ultimately, this decision was made by
this administration, and so I'm following up, consistent with
the details of the Executive Order 107."
REPRESENTATIVE BERKOWITZ questioned the logic of this order
which implies, essentially, that ADF&G poses obstacles to
resource development; he said it gives rise to the question of
what is next. He asked whether ADF&G would ultimately be
folded into DNR, for example, because, in essence, any ADF&G
decisions that protect habitat, fish, or game pose a potential
impediment to resource development.
ACTING COMMISSIONER DUFFY replied that it's certainly not a
policy direction he would encourage as a representative of
ADF&G.
Number 1672
COMMISSIONER IRWIN told Representative Berkowitz that the
question "sounds like there's some kind of evil plan to overcome
the environment." He said he strongly supports [EO 107]. He
said he has found, in his career, that when groups of people get
together - even though they are defending very different areas -
communications and efficiency exist, and people solve problems.
Commissioner Irwin stated the need to work closely with the
federal Environmental Protection Agency (EPA) and the U.S. Army
Corps of Engineers, for example. He mentioned having clear
methods that blanket "the whole thing" so that people don't have
to question where they're going, because there are clear steps
and timelines. He reiterated that the purpose is to keep
business going and to protect the environment.
Number 1721
REPRESENTATIVE BERKOWITZ asked Commissioner Irwin if he was
supportive of the administration's efforts prior to EO 107.
COMMISSIONER IRWIN replied that when he became acting
commissioner, he became supportive of "anything you can do to
merge groups together and eliminate layers" for the purpose of
efficiency. He said he has experienced this during his 30 years
of business life and that it applies here.
Number 1751
CHAIR WEYHRAUCH reviewed the purpose of the current committee in
hearing EO 107. He said he is concerned about the effect on
efficient operation of government; whether [EO 107] is in the
state's interest; state and federal interaction; and the impact
on public employees, for example. He asked Representative
Seaton, as chair of the House Special Committee on Fisheries, to
comment regarding [its focus on EO 107].
REPRESENTATIVE SEATON said that during an upcoming House Special
Committee on Fisheries hearing on EO 107, the committee will
consider the structure of this process and whether it can be
counted on to protect habitat and fisheries.
Number 1830
REPRESENTATIVE IRWIN, in response to a question from
Representative Seaton, explained that the deputy commissioner
and the commissioner are represented in the "Office of the
Commissioner" title in the chart.
REPRESENTATIVE SEATON said that is confusing. He noted that the
mission of the commissioner of DNR is basically the development
of [Alaska's] natural resources, and he stated his concern
regarding moving from ADF&G's protection of fish and game
habitat to a situation where the state is under the
commissioner's mission to develop. He questioned whether some
federal agencies would be able to "take the permits that we
give, coming from an agency, if that's its mission." He stated
his concern that there be a separate, identifiable mission for
the deputy commissioner, and that it not be simply "the
commissioner's office," because that's the appellate position.
Number 1872
COMMISSIONER IRWIN responded that he thinks it would be
appropriate to expand the chart for the purposes of
clarification. He said ADF&G is to protect wildlife, and DNR is
to develop it [while still working to protect it]. He also
commented that there are a lot of streams that ought to be
state-owned. In response to a follow-up question by
Representative Seaton, he concurred that there will "still be a
director, but that upper body will be the deputy commissioner."
He clarified that the director will have full authority, as does
any director within DNR.
REPRESENTATIVE SEATON stated concern, based upon the opinions
received from Legislative Legal and Research Services, that
there's no deference given to ADF&G; in EO 107, there's no
requirement that ADF&G even be notified of permitting requests,
for example. He asked how that is going to be handled.
COMMISSIONER IRWIN responded that the real priority will be
"through the very competent individuals in habitat working up
this line." He said they have clear access to ADF&G for
scientific advice, if they lack it. He indicated the expertise
is "moving right in under a separate director." He continued as
follows:
We made a clear decision not to blend this in to a
different group. We wanted its own separate group of
authority so they would have equal authority and power
to protect the fish and/or wildlife, just as it's the
other side to make sure we clearly provide for
proficient, proper use of the land. And as this melds
together and you have people working across these
boundaries discussing [it], I am so absolutely
convinced this works, because of the success we
specifically have had at Fort Knox [gold mine].
Habitat and business and DNR - it worked very well.
Number 2040
REPRESENTATIVE SEATON related his understanding that nothing in
EO 107 requires public notice of permits. He mentioned
AS 38.05.945 and asked if DNR plans to establish public notice
provisions.
COMMISSIONER IRWIN replied that he knows of no shortcuts on the
DNR procedure and that he thinks the public has to be notified
of what's going on. He mentioned accountability of the
governor, the House, and the Senate, and said, "I took an oath
to protect both sides, to represent the people of Alaska."
Number 2086
REPRESENTATIVE SEATON mentioned AS 38.05.945 and noted that the
legal opinion he has says that those public notice provisions
don't apply to anadromous stream permits and fish (indisc.)
permits. That may require separate legislation, he suggested.
MS. HOWARD, regarding Representative Seaton's previously stated
question regarding public notice on Title 16 permits, said,
currently, at ADF&G, there are no public notice requirements for
"840" or "870" permits. She said:
To the extent a project is undergoing review and
requires multiple agency permits in the coastal zone,
our part of the project covered by the 840/870 would
be a part of the broader notice; but right now, there
is no notice requirement for just simply single-agency
permits issued by [ADF&G].
Number 2134
REPRESENTATIVE BERKOWITZ voiced concern that this is an
executive order, rather than a statute or bill. He said
[EO 107] enables the commissioner of DNR to deputize people as
peace officers, which he opined is a "non-trivial thing." He
related his concern that the legislature might be abrogating its
responsibility by allowing this to continue as an EO, rather
than a bill. He said he wonders if any legal research has been
done on that subject. He added, "Certainly, our revisor of
statutes wouldn't allow us to make that kind of modification;
it's a substantive change in the law."
MS. HOWARD recommended that Mr. Kennedy address that.
REPRESENTATIVE BERKOWITZ asked Ms. Howard and Acting
Commissioner Duffy if they have any reservations about the
proposed move [of the habitat division to DNR]. He clarified
that he'd asked that question to figure out how this came to
pass and whether there are concerns.
MS. HOWARD responded that after the decision was made "to
organize," she was asked to be involved on the interagency team
to figure out how to make it happen; thus she wasn't involved
until the decision had been made. As acting director at the
Division of Habitat and Restoration, she said she has concerns.
She stated her belief that the reorganization will be disruptive
to the normal Division of Habitat and Restoration workload and
will require many staff to do different types of jobs, will
cause staff reduction, and will result in some poor staff moral.
Notwithstanding that, she said the commissioners and staff of
DNR have been very supportive of the reorganization and have
reassured her that they want to do everything they can to ensure
that the reorganization can work. Similarly, she stated, Acting
Commissioner Duffy and all of the other directors at ADF&G have
fully embraced the staff who will be remaining at ADF&G, and
have assured her that they will do everything they can to ensure
that the functions remaining at ADF&G continue to function well.
Number 2263
ACTING COMMISSIONER DUFFY said he thinks Ms. Howard's
perspective was laid out pretty well. He said he, as acting
commissioner, has been focusing on trying to minimize impacts on
the people [in the department] while still creating a structure
that works and protects the Title 16 responsibilities that are
being transferred to DNR. He admitted that he had concerns, but
said the concerns he had early on seem to be being minimized by
the current structure being presented to the legislature. He
added that time will tell. He said if EO 107 rolls forward, he
is sure that "we" will be held accountable for any adverse
impacts that are perceived. He reiterated support for EO 107.
Number 2327
REPRESENTATIVE SEATON asked if there is a due-deference
provision for the deputy director of DNR, who will be
responsible for habitat, as there currently is in ADF&G.
MS. HOWARD responded as follows:
In the current Forest and Resources Practices Act,
[ADF&G] gets deference for fish passage issues. Under
the EO, that deference would still be there, but it
would be to the deputy commissioner at DNR and, in my
assumption, all the authority vested in the deputy
commissioner is going to be delegated down to the
habitat biologists who are actually doing the
permitting work.
TAPE 03-21, SIDE B
NUMBER 2370
MS. HOWARD mentioned ADF&G, "where the commissioner delegates
his authority down to the habitat biologist."
REPRESENTATIVE GRUENBERG referred to page 18 lines 26-29] of
EO 107, which read as follows:
*Sec. 34. AS 41.17 is amended by adding a new section
to read:
Sec.41.17.905. Independent authority. With
respect to matters governed by this chapter, the
deputy commissioner does not have supervisory
authority over the state forester.
REPRESENTATIVE GRUENBERG asked whether that is at odds with
Ms. Howard's previous answer.
Number 2341
MS. HOWARD answered:
Right now, under the Forest Resources and Practices
Act, there's authority vested in the commissioner of
DNR and the commissioner of ADF&G; that's delegated
down to their staff who work on Forest Resources and
Practices Act issues in the Division of Forestry and,
currently, at the Division of Habitat and Restoration.
When you move [the] habitat division to DNR, to ensure
that habitat division will have equal footing, the
authority in the commissioner that they currently have
for forestry matters at DNR is delegated down to the
state forester, and then, in a like manner, the fish
and game authorities will be vested in a deputy
commissioner. And that's simply so the authorities
are vested one step down from the final position at
DNR, which is the commissioner. So no, it does not
conflict with what I intended to say previously. I'm
sorry if that was confusing.
CHAIR WEYHRAUCH announced that Mr. Kennedy was available once
more by teleconference, and invited Representative Berkowitz to
restate his previous question.
Number 2296
REPRESENTATIVE BERKOWITZ said he wants to know why the matter at
hand came down as an EO, rather than a bill. He said he thinks
there are some substantive changes that the legislature itself
would not be allowed to carry forward. He offered one example
regarding granting authority to the commissioner of DNR to
deputize peace officers. He said he is curious as to the legal
authority that would substantiate that as an executive order, as
opposed to a bill.
MR. KENNEDY responded that looking at the EO order can be a
little bit misleading; it looks as though it creates a lot of
new statutory provisions "from scratch." However, he said that
isn't so. Noting that the example given by Representative
Berkowitz is the new Section 41.14.165, he explained that that
is essentially verbatim, a restatement of law that is already on
the books in AS 16.05.165. He noted that that section provides
enforcement authority that goes with "840" and "870" permitting.
In order to move that permitting to DNR and keep the statutory
structure intact, he explained, it was necessary also to move
the ability to enforce those provisions.
REPRESENTATIVE BERKOWITZ noted that Title 16 refers to ADF&G and
the commissioner of ADF&G, whereas Title 41 refers to DNR and
the commissioner of DNR; those are two separate entities. He
related his understanding that this is a substantive
distinction, not just a conforming change.
MR. KENNEDY agreed that this transfers those duties and
functions from the commissioner of ADF&G and the department to
DNR. He said that was the intent of the executive order. He
added, "We believe that is in keeping with the governor's
executive order authority."
Number 2195
REPRESENTATIVE BERKOWITZ observed that Title 16 authority to
nominate peace officers still belongs to the commissioner of
ADF&G. What EO 107 does is give the deputy commissioner of DNR
authority to nominate peace officers, which is substantive. He
voiced concern that this isn't just a switch in the law, but is
a new law.
MR. KENNEDY respectfully disagreed. He said the enforcement
authority that is moved to Title 41.14 is only enforcement
authority relating to the "840" and "870" permits. Those
permits will no longer reside in Title 16, so the authority will
no longer be with the commissioner of ADF&G. He said, "It
simply reappeared exactly as it was before, but now assigned to
a different administrative unit."
CHAIR WEYHRAUCH highlighted the time constraints because of the
large number of testifiers. He suggested that any other
substantive question be submitted in writing; that [the
commissioners] answer any questions expeditiously; and that any
MOU between DNR & ADF&G be made available to the committee.
Number 2125
REPRESENTATIVE GRUENBERG referred to a legal opinion written to
Representative Seaton, dated February 26 [2003]. He asked
permission to quote from it and said:
There are two provision in the executive order where
the governor appears to have exceeded his authority.
First, in Section 5 of the executive order, a new
section AS 41.14.165 is added to provide that a peace
officer may issue a citation for violations of certain
permits. Included is a requirement that the Alaska
Supreme Court determines which misdemeanors, under the
new AS 41.14, are appropriate for disposition without
a court appearance. Also included in that section is
a requirement that the court establish an advisory
committee consisting of certain members, including
judges and chairs of certain legislative committees.
...
The governor's executive authority is a limited
authority to restructure the executive branch of state
government. That authority does not allow the
governor to place duties on either the legislative or
the judicial branch of government. In this case, both
the Alaska Supreme Court and the legislature could
completely ignore the requirements imposed by this
section, because the governor does not have the
authority to impose any duty on them [through] an
executive order.
Second, in Section 45 of the executive order, a
provision is added to protect certain [ADF&G]
employees from losing their "police officers'
retirement benefits" if they're transferred to [DNR]
by the order. This section does not involve a
reorganization of functions of the executive branch.
Instead, it relates to the retirement benefits
accorded to state employees under state law. No
matter how well intentioned the purpose of this
section may be, the governor does not have the power
under an executive order to change laws regarding
employee retirement benefits.
REPRESENTATIVE GRUENBERG requested a written response to that.
ACTING COMMISSIONER DUFFY said [ADF&G and DNR] are committed to
answering the questions of the committee members "to the extent
practical."
Number 1981
PAM LaBOLLE, President, Alaska State Chamber of Commerce, on
behalf of approximately 700 business members and Alaska's local
chambers of commerce, said those members support of EO 107 and
believe the governor is doing what business people do every day:
increasing the level of service, speeding up processes, cutting
costs, meeting customer needs, and identifying efficient problem
solving methods. She said they believe this will ensure a high
standard of environmental protection, reduce the cost of
government, and encourage future investment in Alaska while
maintaining the high level of environmental protection; they
believe environmental protection and natural resource
development aren't mutually exclusive, but can and do work
together; and they think reducing the cost of government through
this consolidation is "something that we've all been looking
for." She reiterated the previous remark of Commissioner Irwin
regarding the future investment in Alaska being at stake if
nothing is done to make the permitting process more efficient
and user-friendly and to get business "rolling in Alaska."
Number 1886
ALEX WERTHEIMER testified that he is a fisheries research
biologist and past president of the Alaska chapter of the
American [Fisheries] Society. Over the past 25 years, he has
worked on a variety of issues involving Alaskan salmon, and he
has been lead author or co-author of several papers evaluating
the current status of Alaskan salmon. Those papers have
documented the remarkable recovery of the resources from
depleted levels at the time of statehood to the historically
high levels of recent years. He continued:
I am frequently challenged by my colleagues in the
Lower 48 to explain why, in most of Alaska, we have
record abundances of salmon, in contrast to decline
and endangered species listings of salmon throughout
the Pacific Northwest. Are we doing something right
in Alaska? Or are favorable environmental conditions
simply masking inevitable impacts of development?
Certainly, Alaska salmon have benefited from favorable
environmental conditions in the North Pacific Ocean.
In my view, enlightened fisheries and enhancement
management policies have also been major factors
contributing to the health of the resource.
Number 1799
MR. WERTHEIMER continued:
But the most important factor has been the systematic
maintenance of habitat quality. Because Alaska has
the habitat, management policies and enforcement to
ensure escapement have resulted in recovery of
spawning populations. Because we have the habitat,
recovered populations have had the productive
potential to respond to favorable ocean conditions,
resulting in record runs.
At statehood, the Alaska legislature recognized the
critical importance of maintaining habitat for salmon
production, even at a time when salmon were in serious
decline. They separated the task of resource
development and habitat protection between the
Department of Natural Resources and the [Alaska]
Department of Fish & Game to create a system of checks
and balances, and to ensure that both agencies have
the expertise and regulatory power to accomplish their
task. This system has worked remarkably well as
evidenced by the current status of the resource.
I'm well aware of the legitimate need to develop and
utilize Alaska's other natural resources, to provide
increased economic opportunity in the state. As
development pressure and scale increase, however, the
need for an effective system to ensure that impacts
are minimized to the habitat that sustains Alaska's
incredible salmon resource also increases.
I have served on the biological review team that
evaluated the status of Chinook salmon in California
and the Pacific Northwest for listings under the
Endangered Species Act. I can assure you that the
perceived burdens of the current system [are] nothing
compared to the regulatory morass and the cost of
attempting to restore runs decimated by habitat
degradation.
Why gamble with one of the crown jewels of Alaska's
renewable resources? I urge you not to abandon a
system that has been so effective [in] fulfilling the
mandate set by the original Alaska legislature, and to
reject EO 107.
MR. WERTHEIMER, in response to a question by Chair Weyhrauch,
confirmed that he also works with the National Marine Fisheries
Service (NMFS).
CHAIR WEYHRAUCH told Mr. Wertheimer he appreciates his work in
the fisheries area.
Number 1754
RON WOLFE, Corporate Forester, Sealaska Corporation, testified
in support of EO 107. He said his perspective is based on his
extensive experience with a state resource regulation of Alaska
forest resources, through the Forest Resources and Practices
Act, which he said continues to be one of the best in the
nation. He continued as follows:
But we have experienced "disconnects" through the
years from what otherwise is a remarkably successful
consensus-based process. This transfer is an
opportunity to repair those disconnects by bringing
important interlocking affiliations between resource
disciplines under one commissioner to achieve an
improved administrative process.
In the same way that relationships and communications
are improved between operators and agency personnel
during field inspections, this transfer will create a
closer nexus between the professionals for improved
organizational relationships. It is an opportunity to
recalibrate agency perspectives through exchange of
information, cross training, and to establish a closer
physical proximity so a higher degree of efficiency
can be attained at a time when state government must
be more efficient.
While these opportunities exist, they must be based
upon competent field inspections that include
fisheries biologist representation. This process can
create a foundation to support and maintain the high
public confidence in our resource projection that we
in Alaska enjoy today, while at the same time create
the regulatory efficiencies vital to the rebuilding of
our industries.
We look forward to our continued relationship with the
[Alaska Department] of Fish & Game, with the functions
that will be retained there for such things ... as
science and research. This transfer will likely
improve our relationship for the efforts after the
permit functions have been transferred to the
Department of Natural Resources.
Number 1630
CARL ROSIER told the committee that he was testifying as a
concerned citizen and former commissioner of ADF&G. He stated
that although he strongly supported Governor Murkowski's run for
office, that doesn't mean he supports every decision the
governor makes. He voiced strong opposition to the
administration's efforts to gut the habitat authorities of ADF&G
through EO 107. He told members:
As the previous commissioner of this department, I
would characterize the removal of this authority as
one demanding the commissioner to manage the
department on a three-legged stool with only two legs
- habitat being the third leg that is critical to the
commissioner being able to carry out his
constitutional and statutory mandates.
It's not easy to tell a friend he's wrong and oppose
him on an issue that was an issue that was initiated
for the right reason of streamlining government and
better serving the public. Somewhere along the path,
that original thought was lost, and the [Division of
Habitat and Restoration] became the object of a witch-
hunt and political vendetta, by individuals during the
administration, down a road that favored development
expedience over fish and game resources.
EO 107 is the "cowboy" action we find ourselves with
as a result of some extremely poor advice given the
governor - the device that overrode the responsible
advice given to him by his own appointed transition
team for fish and game.
[As] a 48-year resident involved with fish and game
management and a strong interest in good government, I
want to assure the committee I'm not looking for my
old agency to be excluded from consideration in the
governor's plans to streamline government and
stimulate the state's economy. There are, however,
many critical state functions that require
professional expertise to protect the state and public
interest. The habitat provision to Title 16, along
with the professional people [who] implement those
statutes, are one of those critical functions.
Number 1502
MR. ROSIER continued:
I would add that those farsighted legislators in the
early days of statehood worked hard to build that into
the statutes for that reason. If fish are to be
protected and flourish, as they certainly have since
statehood, in the face of development, anything less
than ADF&G's involvement increases risk and will, in
the long term - despite all the best intentions - fall
into declines in abundance, as has been demonstrated
so well in so many other states.
EO 107 transfers all but a small number of habitat
responsibilities from ADF&G to a new deputy
commissioner in DNR and the state forester in DNR as
well. The order removes ADF&G from virtually all
support functions such as enforcement, technical
advice to the Board of Forestry, and research needs.
This new structure is an interesting approach, as I
know no other state agency [where] a partially exempt
deputy position has more authority than the
commissioner. Deputy commissioners [are] generally
political appointees that may or may not have
expertise beyond administrative, and partially exempt
positions are not confirmed with the legislature.
Number 1450
MR. ROSIER continued:
EO 170 gives both the new deputy and the state
forester regulatory authority, and the deputy is given
"deputization" authority, the way I read it. The lack
of legislative confirmation is, in my view, extremely
poor public policy, as this process gives the
legislature the opportunity to make sure that fish and
game habitat is a standard (indisc.--coughing)
commitment for confirmation. In this situation, both
positions (indisc.--coughing) occur without
legislative or public input. Despite this, these two
political positions are given great decision authority
[over] habitat, yet they may or may not have the
expertise.
Delegation authority is, I believe, a delegation for
the legislator to the heads of departments, who in
turn can then further delegate authority to lower-
level staffers. By setting up a structure with a
deputy as the head of a function, it would seem that
that individual would require the legislative
authority in order to effectively carry out his or her
responsibilities.
Number 1416
MR. ROSIER said numerous areas in [EO 107] concern him, and he'd
list only a few at this time. For example, he referred to Sec.
41.14.165(f) and opined that it attempts to restrict the courts'
ability to fine violators found guilty at trial to a maximum of
the established bail amount. He asked, "Is it possible that an
EO such as this can limit the court system in this manner?"
MR. ROSIER referred to Sec. 41.17.010, a "declaration of
intent." He said, "I hope the legislature looks closely at this
cleverly worded section, as it commit[s] to you, the legislator,
to elevating timber to one of the most valuable resources, from
which all other uses and resources flow." He opined that timber
is important, but no more so than fishing, mining, tourism, and
other uses that play important roles in Alaska's economy.
MR. ROSIER referred to Section 8 [page 9, line 28, through page
10, line 4], which covers the research functions of the new
division. He said those needs are to be identified by the
division, DEC [Department of Environmental Conservation], the
new deputy, and the timber industry. He surmised that [ADF&G]
falls in the category of "other affected agencies." He said the
governor, in his sales pitch, has consistently said ADF&G would
continue in its research role, but Mr. Rosier said the
department certainly has no designated role in EO 107.
MR. ROSIER referred to Section 9 [page 10, lines 5-21] and
commented that only the state forester [and] the new deputy and
DEC have the authority to report on effectiveness, regulations,
and best management practices adopted under AS 41. He added,
"No role for the agency responsible for fish and game."
Number 1330
MR. ROSIER posited that there are significant numbers of other
questions that should be answered before the legislature allows
this transfer to go forward. He said the administration's
justification for this very serious move has not been shown. He
stated, "On the basis of very poor advice, the governor has been
put in the position of trying to justify the action of what I
would consider false examples of what has actually transpired in
ADF&G field offices." He continued as follows:
Permit statistics, while not totally accurate, show a
tremendous workload that is being accomplished in a
fairly timely manner, with very few total denials of
permit. With all due respect to Commissioner Irwin
and his good assurances to suggest that fish and game
will be protected in the absence of ADF&G from key
functions and replace them with the industry
development influence of DNR, coupled with dropping 22
positions from the permitting process while claiming
expedited permit service to the public, I think truly
challenges the intelligence of all Alaskans.
This entire matter is a management problem, not an
issue to tear up a system that has served a state and
all the resources well. Let's don't go about fixing a
system that isn't broken, based on the flimsy evidence
to date. ... Please pass the resolution denying this
action to the governor, and perhaps we can begin to
look at simpler solutions involving management
measures by the new commissioner, regulatory review,
and, perhaps, centralizing for one-stop permitting
permits.
Number 1247
REPRESENTATIVE GRUENBERG referred to page 8 of EO 107 and said
the only change he sees in the current law is on page 9, line
19, where a couple of statutory designations are changed. He
offered his belief that it is a technical change only, which
wouldn't do anything substantive. He suggested that Mr. Rosier
reconsider that section.
Number 1160
DAVE HANNA testified that he is a lifelong Juneau resident whose
family has been in [Alaska] since the 1870s and has been
involved in mining, fishing, timber, and construction
development during that time. Mr. Hanna noted that he has
worked in the construction industry for his entire life, acting
as the lead person involved in planning, permitting, and
developing various mining, timber, and construction development
work in Southeast Alaska for the last 25 years. He said he has
a fair amount of experience in dealing with regulatory agencies;
not a day goes by when he does not have a project that's under
review by "some government entity."
MR. HANNA said he has watched the process evolve over the years.
In the last 25 years, he said, he doesn't believe he has ever
failed to get an efficient, fair, expedient review from the
Division of Habitat [and Restoration]. He added that he
believes the division's process works fairly well. He noted
that some of his projects "have the possibility of having large
impacts on ... major fisheries that involve sport fish issues
[and commercial] fish issues." He said he thinks the fact that
habitat personnel "sit next door to" and work with those same
divisions is one reason they work so effectively. He remarked,
"They usually conclude their reviews at the same speed or,
often, faster than a lot of the other regulatory agencies."
MR. HANNA indicated he'd had one problem with [ADF&G] in the
past. He explained that he is involved with a nonprofit
watershed partnership group that does a lot of good work,
including restoration projects; the group had a restoration
project that involved some new technology that "the folks from
ADF&G up north" were not familiar with. He said, "It was their
policy that if they weren't familiar with something, they
wouldn't act on it." He said, fortunately, his group had access
to the commissioner's office, where [then] Commissioner Rue and
his staff considered the project and realized it was a good one.
MR. HANNA said the problems that have been seen aren't process
problems or system problems, but are policy problems. He
remarked, "It's very analogous to what goes on with the big
industries that we're concerned with - the industries that want
assurances." Saying there are inconsistencies in regard to
policies, he opined that the way to change existing problems is
by changing the policies.
Number 1000
MR. HANNA said [the Division of Habitat and Restoration] staff
seems to have a better record of processing its permits than the
DNR staff does. He proffered that one of the reasons that it
does work so efficiently is that it works hand in hand with [the
Divisions of Sport Fish and Commercial Fisheries]. Under
[EO 107], offices and positions will be lost, resulting in the
loss of local knowledge; the permitting decisions will be based
on a lack of knowledge, which will either slow the permitting
process "or we're really invalidating, as far as the other
agencies are concerned." Mr. Hanna said "we" are looking to be
pro-development in the state, that more projects require more
permits, and that a reduced staff will not get more permits out
faster.
MR. HANNA said this administration is capable of fixing the
policy problems with the current setup. He added, "This would
be a short-term fix." He said industry really needs long-term
assurances; therefore, he opined that the administration should
help get guidelines firmly fixed, perhaps in statute. He
mentioned a long-term legacy to leave the state and said
administrations come and go. He said there has been no
substantiation from the administration or commissioners
regarding how [EO 107] will work better. He said other states
that have adopted this model have lost their resources and have
failing economies. He opined that it is a fiction that EO 107
will make things better. He encouraged rejection of this
concept and EO 107.
Number 0818
AURAH LANDAU began by noting that she'd testified yesterday
before the Senate Resources Standing Committee on behalf of
Southeast Alaska Conservation Council (SEACC) and would submit
that testimony to the current committee. However, she specified
that she was currently testifying on her own behalf. With
regard to EO 107, she said no authority would exist for stream
buffer enforcement, protection, and monitoring on federal land.
The Forest Practices Act only applies to state and private land,
and 97 percent of Southeast Alaska is in federal title. She
said 80 percent of the fish caught around Southeast Alaska spawn
in Tongass National Forest streams; if there is no authority for
protecting the riparian areas, it would have quite an impact to
Southeast Alaska communities and the commercial fishing there.
MS. LANDAU mentioned the Pacific Salmon Treaty. She said one of
the foundations of that treaty is the assumption of healthy
fisheries. She said, "We certainly don't want to have to
renegotiate an international treaty just based on the assumption
of potentially having problems or a major impact to our
fisheries."
MS. LANDAU reported that several years ago SEACC went to
Washington, D.C., to argue against the Endangered Species Act
listing of several Columbia River salmon stocks, which helped to
stop listing stocks that would have affected Alaskan fishermen.
She said every now and then, SEACC gets calls asking if there
are stocks that people are interested in potentially listing
under the Endangered Species Act. She said the entire country
looks at the fisheries [in Alaska], and if there is no authority
for protecting fisheries on national forest land in Alaska, the
scrutiny will be acute, and it will be difficult for the state
to hold up a case that "the stocks are safe."
CHAIR WEYHRAUCH said he would personally study the legal issues
that Ms. Landau raised and report them to the Department of Law.
REPRESENTATIVE BERKOWITZ asked Ms. Landau to submit more
information regarding the instance of her assistance with the
Endangered Species Act.
Number 0570
ERIC LEE testified that he is a commercial fisherman from
Petersburg whose family has been involved in commercial fishing
since his grandfather's arrival in 1902; he also subsistence
hunts. He requested that the committee overturn EO [107]. He
said the fishing industry is the backbone of the economy of
Alaska and generates more jobs than any other industry in the
state, including the oil industry. Tourism is also a big part
of Alaska's economy and promises to play a larger role as time
goes on. Both industries are ultimately dependent on the
quality of the habitat; therefore, protecting the future of
these industries by protecting habitat is essential to ensure
the health of the state's economy. He opined that it should be
a top priority to ensure that [Alaska's] habitat is managed with
the best possible science and an adequate staff to evaluate
permitting issues.
MR. LEE said, if this transfer of the habitat division takes
place, permitting decisions made in DNR will be prone to
mistakes and oversights. Overworked employees working in an
atmosphere of expediencies do make mistakes, and important
considerations will not be addressed. Biologists without site-
specific knowledge will be first to make decisions. Site-
specific knowledge is essential in Alaska, where conditions vary
so greatly, he emphasized. Noting that the stated goal of
[EO 107] is efficiency and streamlining, he posited that these
are inappropriate and dangerous priorities for managing the
habitat that is so important to the state's economy and its way
of life. He concluded, "Mandated efficiency is simply not the
proper priority in this instance. Our goals in managing habitat
should always be to manage it in the best possible way we can."
Number 1384
BRUCE BAKER testified that he retired from ADF&G 10 years ago,
after serving with the department for 11 years as the deputy
director of the habitat division. He urged the committee to
bring to a floor vote a resolution to reject EO 107. He told
members:
The state needs to maintain the checks and balances
between ADF&G and DNR that have benefited ... the
Alaskan economy since ... statehood. ADF&G's
fundamental mission is to protect Alaska's fish and
wildlife resources. DNR's fundamental mission is to
develop the state's other natural resources. These
two missions balance each other in a way the ensures
adequate protection of the state's economically
important fish and wildlife habitats while allowing
natural resource development to proceed in a timely
manner. By eliminating the permitting authority of
one of these two agencies, the executive order
eliminates these checks and balances.
The executive order is a solution looking for a
problem. The timeliness of ADF&G's permitting is
exemplary. Of 1,926 Title 16 applications that ADF&G
received last year, over 99 percent of the applicants
either received permits or were told that they didn't
even need to have one. The average processing time
was only 14 days. If there's a development project
that seems to be high-centered over a habitat-related
authorization, there is already a process for
department commissioners to quickly resolve the issue,
consistent with the policies of whatever governor
happens to be in office at the time.
What Alaska needs in order to promote its natural
resource development, without costly permit delays or
lawsuits, is to increase rather than eliminate habitat
staffing, and to leave it in the department that has
the bedrock of fish and wildlife expertise upon which
to draw. The governor has criticized ADF&G for
habitat permits for which he was given incorrect
information.
For the record, I'll leave with you two ADF&G
memoranda that provide corrected and specific
information that the governor did not have available
to him when he made his public statements. In
closing, EO 107 is not so much about making state
government more efficient as it is a thinly veiled
effort to lower the habitat-protection bar for permit
applicants.
Number 0156
FRANK RUE testified on his own behalf, listing his past work
experience including nine years as a resource manager for DNR,
seven years as the director of the division of habitat in ADF&G,
and eight years as commissioner of ADF&G. He said he has
respect for the professionals at DNR. He mentioned working with
Commissioner Irwin when he was at Fort Knox on a very successful
project. He said there have been a number of successful
projects involving "an independent" ADF&G working with DNR [and]
DEC. He indicated that the projects are done while fish and
water quality are protected.
MR. RUE urged the committee to reject EO 107 and stick with the
system that the original legislature that set up Alaska's
statutes provided for the state to protect its incredibly
important fish resources. He said it can't be forgotten that
sport fishing is a $600-million-a-year business. The value of
commercial fishing last year he estimated to be $250 million.
He pointed out that subsistence fishing is also very valuable to
Alaskans.
MR. RUE said the reason given for [EO 107] is efficiency. He
referred to the organizational chart and said, "With all due
respect, you could remove all those layers in the existing
[Division of Habitat and Restoration] if all you're going for is
efficiency." For example, he noted that regional supervisors
are removed [in EO 107], but instead could be removed from ADF&G
and yet leave the staff and have a director and a commissioner.
He said, "In terms of efficiency and removing layers, there's
nothing about moving it to DNR that's magic. You can do that."
TAPE 03-22, SIDE A
Number 0001
MR. RUE indicated the discussion is not about coastal management
and EO 106, but ADF&G's permitting authority inside the banks of
streams that support salmon, rainbow trout, and grayling. Most
of those permits are single-agency permits: just ADF&G. As for
efficiency, [the permits] are out in 14 days, and there are not
other agencies to coordinate with most of the time. He said,
"So you're not going to get efficiencies by being next to DNR,
and you're going to lose efficiencies by being away from
commercial fish biologists, sport fish biologists, et cetera."
MR. RUE highlighted myths that minimize the impact on Alaska's
fish. He clarified that this has nothing to do with
personalities or individuals, but rather with which agencies
have a mission and what that mission is. He said the first myth
is that the level of protection will be the same. The second
myth is that Oregon, with its combined fish and game and natural
resources departments, should be Alaska's model for success.
Regarding the first myth, Mr. Rue asked, "If protection is going
to be the same, why move it?"
MR. RUE, regarding efficiency, said the only way to speed things
up, given the incredible record of ADF&G's moving permits
quickly, is to "get out a rubber stamp and just start stamping
projects as they come in the door." He said he doesn't think
that's a good way to do business. He told members [ADF&G] has
been very good about doing field reviews and "pre-project
working with developers, trying to design their project to fit
that stream reach." He said, "The standard of protection won't
be the same for this reason." He said the anadromous fish Act
and the fishways Act have very broad discretionary standards, as
follows: what is important in anadromous fish habitat; what is
proper protection of that habitat; and when it is necessary to
provide a fishway. He said those are about the only standards
that exist in law. [Through EO 107], those decisions would be
made by a deputy commissioner in DNR, instead of the
commissioner of ADF&G.
MR. RUE explained that the commissioner of ADF&G has a
responsibility to "get out the catch," to provide for sport
fishing, commercial fishing, subsistence fishing, and personal-
use fishing. He stated his belief that because the legal
mandate of the commissioner of ADF&G is to provide for these
opportunities, the standard protection by that department will
be higher than that of a deputy commissioner in the department
whose mission is "to get out the cut, get out oil, get out
mining, gravel, which are all very legitimate, but it's going to
be a different standard." He said:
We tried this experiment in Alaska with the U.S.
Forest Service. They refused to get fish and game
permits. They had biologists in the agency, but
without authority. The road engineer or the forester
made the final decision on road crossings. We found,
after years of persuasion, the [U.S.] Forest Service
finally agreed to work with [ADF&G] and let us review
their projects. We jointly went out, reviewed the
Tongass roads condition, and found that 70 percent of
the culverts that had been put in by the Forest
Service, without [ADF&G] review, blocked or impeded
fish passage of anadromous fish.
To their credit, the Forest Service has now signed an
MOU with [ADF&G, which] will review all their
projects, and to their credit, they're spending
millions of dollars to fix those old problems. We can
avoid those problems by keeping our current system as
it is.
Number 0344
REPRESENTATIVE BERKOWITZ voiced his understanding that the
presence of a vibrant habitat division was critical in getting
NPR-A [National Petroleum Reserve-Alaska] leases, with the
consent of the federal government. He asked Mr. Rue to explain
how that came to pass and what "elimination of movement of the
habitat division would mean."
MR. RUE offered his belief that the Clinton Administration and
[then U.S. Secretary of the Interior] Babbitt opened up NPR-A
for leasing in large part because the State of Alaska came up
with a position to support oil and gas development there that
protected key fish and wildlife resources. Because ADF&G was
"on board," he said, he and then-Commissioner Shively went
before the Resource Development Council and were jointly pushing
the proposal for NPR-A, as two departments with statutory
responsibilities saying, "We can protect fish."
MR. RUE added that he thinks this trust is critical - that the
public believes their fish are being protected if ADF&G is
involved. He questioned whether [the public] will have the same
trust if ADF&G has no role in either buffer decisions or
instream permit decisions. He added that he also believes the
federal agencies will become more aggressive and not defer as
much as they have in the past to ADF&G.
Number 0497
REPRESENTATIVE BERKOWITZ stated concern that EO 107 can be
interpreted as a signal of retreat from the level of habitat
protection, which may be critical in Alaska's ability to secure
national cooperation when it comes to developing oil and gas
resources. He said, "We have to remember that we do play on a
wider stage than just for eternal consumption." He asked what
the biologist do precisely, and why they are so critical for
habitat's function.
MR. RUE answered that habitat biologists who are involved in
permit decisions do two things. First, they do their homework
so they understand what's going on a particular stream where a
project is proposed. They talk to the people who work in [the
Division of] Sport Fish, who have a lot of knowledge gained from
doing research, and to the people who work in [the Division of]
Commercial Fisheries such as biologists, "so they know from a
fish value perspective what's at risk." Then, when a developer
comes in and asks for a permit, [the habitat biologists]
understand the developer's needs. He continued:
I think you'll see that this is mostly borne out.
They go out and they kick dirt with folks. As
Mr. Hanna said, they know what it takes to get from
here to there across a stream, and they know how to
work with folks and give them ideas about how to do
their job. [For example], where's a good place to put
your road; what if you move it over here; what if you
have ... this kind of culvert versus that kind of
culvert? They have a lot of in-the-field experience
which they can bring to developers to help them get
their project done while protecting our fish so that
we have both roads, for instance, and fish. So they
do those two things.
Number 0612
REPRESENTATIVE BERKOWITZ referred to the biologists who are
losing their jobs. He said, from Mr. Rue's description, those
biologists aren't interchangeable; [it isn't as simple as]
hiring new people to replace them, because they have a reservoir
of knowledge about particular watersheds and fish, for example,
that can't be replaced overnight.
MR. RUE concurred that there is a lot of expertise that comes
with experience. He said a lot of good biologists will,
hopefully, stay if [EO 107 is carried out], and will continue to
lend their expertise. He indicated the need to have a structure
where new people are [hired] and trained. He opined, "I also
think you'll lose that connection to the experience of
biologists in the other divisions and their expertise; you'll
have biologists housed in DNR who will become DNR employees, and
they will lose that connection back to the information and the
expertise of the other fish biologists who know a lot about
those streams." He added that, in fact, they may know more
about individual streams than a "habitat" biologist, because
they are often out there doing surveys and running weirs, for
example. He said [the Divisions of] Sport Fish and Commercial
Fisheries biologists probably have more on-the-ground experience
with a particular stream, which they can then transmit to the
habitat biologists.
Number 0714
REPRESENTATIVE GRUENBERG said he sees that the Alaska
constitution requires that fish shall be utilized, developed,
and maintained on the sustained yield principle, subject to
preferences among beneficial uses. He asked Mr. Rue if he sees
any difference between this constitutional mandate and the other
constitutional mandates under which DNR operates. He asked if
there would be any potential conflict if habitat functions are
moved to [DNR].
MR. RUE responded that the main conflict he sees is the one
Mr. Rosier previously stated regarding the three-legged stool.
He highlighted the importance of protecting habitat, managing
the fisheries by controlling the catch, having good research,
and having a good public regulatory process to set fishing
regulations. He said, "That's my four legs;, you can do it in
three."
MR. RUE said habitat is key to sustained yield. He informed the
committee Alaska's salmon fisheries were just certified as
sustainable by the Marine Stewardship Council, an independent
certifying agency. He mentioned that Europe is starting to be
concerned about sustainability, and he said one key principle to
sustainable fish management is protecting habitat. He voiced
his belief that if ADF&G is not worrying about salmon habitat
"in the banks" and being involved with the buffer decisions,
then sustainability will be at risk over the long term, perhaps
in 10-40 years.
Number 0860
PAULA TERRELL, Alaska Marine Conservation Council (AMCC),
testified that AMCC is a statewide organization with almost
1,000 individual members including fishermen, subsistence
harvesters, marine scientists, conservationists, and small
business owners, who are linked by a desire to protect and
restore the ocean environment through sustainable fishing
practices, habitat protection, and local stewardship. The board
is made up primarily of commercial fishermen.
MS. TERRELL said AMCC opposes EO 107, which has only downside
risks for fishermen. She noted that the statutes' moving is
taking the authority away from ADF&G. Thus it will be up to DNR
to decide whether ADF&G will be consulted, will be advised, or
will have due deference, for example. She said fishermen have
looked to ADF&G's habitat division for the protection of their
fisheries, and have benefited from the balance provided by
having both DNR and ADF&G involved. Noting that the mandates
differ, however, she explained that ADF&G protects fish and
wildlife, whereas DNR promotes development of nonrenewable
resources.
MS. TERRELL remarked that Mr. Rue had previously alluded to
something that is "a really large misconception which needs to
be addressed." She pointed out that habitat-related permits are
primarily single permits, rather than the multiple permits
characterized as the problem by the governor and DNR. Thus this
change won't get to the crux of what the governor and DNR say
the problem is. She said multiple permits are the ones that
involve more than one state agency. They involve federal
agencies and are generally for big projects. Thus in trying to
resolve a problem of multiple permitting, moving Title 16
permitting is just not going to do it.
Number 1062
MS. TERRELL set forth several questions AMCC would like this
committee to ask the administration. First, does EO 107 really
address the problem the administration wants to resolve? If the
problem is really multiple permitting, why is the administration
focusing on the instream permitting process, which is just a
question of what is happening in the streams? Second, will
DNR's deputy commissioner continue the historical practice
within [ADF&G] by the commissioner of delegating authority for
making the initial permitting decisions to the habitat
biologists, who are the ones that do the review and sign the
permits? Would these decisions then become subject to the
process repeals to the DNR commissioner? And how is that going
to work? She continued:
The other question is - [Mr. Rue] alluded to this -
the very broad discretion that the now [ADF&G]
commissioner and, if this happens, the DNR
commissioner will have. ... The commissioner will
determine the waters in the state that are important
for the rearing, spawning, and migration of anadromous
fish, or the DNR deputy commissioner would decide what
constitutes important habitat. ... This is broad
discretion, and it's over there now in DNR under the
executive order. ... Given the differing mandates,
what safeguards would prevent this discretion from
becoming unduly conflicted?
Number 1145
MS. TERRELL said, at a minimum, AMCC urges the committee and the
legislature to request the following from the administration: a
commitment by the governor that 1) the habitat biologists who
are being transferred from ADF&G would be housed in this newly
formed Office of Habitat Management and Permitting, and 2) that,
under this reorganization, the deputy commissioner of DNR would
delegate the authority for issuing and signing the anadromous
fish Act and fishways Act permits to the habitat biologists who
have been transferred, and who currently [have that authority];
and a commitment by DNR 1) 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 streams within the 66-foot buffer on private land and
the coastal zone, and 2) that there would continue to be the
same level of permit monitoring, compliance, and enforcement as
has previously existed.
Number 1223
GENE HARRISON testified in opposition to EO 107. He told the
committee he has been an Alaskan resident for over 20 years and
works as an artist and naturalist. He said the most troubling
issue regarding EO 107 is elimination of the checks and balances
needed to ensure a healthy environment for fish and game, which
is the mission of ADF&G. The mission of DNR is to issue permits
for development. He said it is also evident to him and to many
of his friends why the governor wants this transfer and also the
elimination of many positions relating to habitat, primarily,
the biologists. He characterized the transfer of authority as
putting the fox in charge of the henhouse. He said he has
listened to those in favor of EO 107 testify that nothing's
going to change; thus questioned why the change is being made.
Number 1341
LANCE TRASKY testified in opposition to EO 107. He told members
he is a fisheries biologist who has worked for both the State of
Michigan and the State of Alaska, with 30 years' experience as
both a fisheries research biologist and a habitat biologist. He
stated his belief that the change in EO 107 will result in a
long-term decline of fish habitat in Alaska; it dramatically
changes the existing balance between protecting the fish habitat
and the activities that have historically impacted fish habitat.
He said the First Alaska State Legislature established ADF&G and
gave it the statutory responsibility to ensure that fish passage
is maintained on all streams and that the productivity of all
lakes and streams supporting salmon, steelhead, whitefish, and
other anadromous fish is preserved.
MR. TRASKY said the anadromous fish Act and the fishways Act
were designed to provide balance between nonrenewable resource
development and the public's interest in maintaining the state's
fisheries resources. He mentioned support of Alaska's sport,
commercial, and subsistence fisheries. He noted that these laws
were enacted and ADF&G was created because the legislature had
witnessed the final collapse of the salmon fisheries in the
Pacific Northwest and were well aware of the reasons why
fishermen, including subsistence users, lost their [resource].
He continued:
The legislators made a conscious decision to place the
trust to maintain fish habitat in the hands of
fisheries professionals in the new Department of Fish
& Game, rather than in a Department of Natural
Resources, for fish and habitat protection was just
one consideration in a department with many competing
interests. This was a reasonable decision, because
Alaska's sport, commercial, and subsistence fisheries,
and the businesses which support them, were and still
are the largest non-governmental employers in the
state, a major part of our economy and culture.
I have not seen any evidence of proper balance between
fish and wildlife habitat protection and (indisc.)
economic development has not occurred over the 40-plus
years since statehood. In the last 25 years, the
Department of Fish & Game has reviewed between 40,000-
50,000 applications for large and small projects
affecting (indisc.) streams that were likely to block
fish paths.
Number 1462
MR. TRASKY mentioned the Brandy Lake hydro project and its
culverts. He said records show that more than 99 percent [of
the permits] were issued and only a fraction of a percent were
denied. In 25 years, there have been only six formal appeals of
ADF&G Title 16 permit denials for conditions. He said the vast
majority of people who have received Title 16 permits from the
[Division of] Habitat and Restoration are satisfied that they
were treated fairly and that the projects were permitted
efficiently; conversely, hundreds of decisions in DNR have been
repealed and litigated in the same time period.
MR. TRASKY said currently the governor's resource cabinet
resolves instances when there are unresolved disagreements
between ADF&G and another state department or federal agency
over the appropriate level of fish habitat protection for a
project. Because these debates are currently part of the public
process, the public or the coastal districts often weigh in.
However, if all the fish habitat protection authority is
transferred to DNR, any disputes will be settled internally
between a DNR fisheries biologist and the directors of the
Divisions of Forestry; Mining, Land and Water; or Oil & Gas.
Thus ADF&G will not have a say in the process, and it's unlikely
the public will hear about [any such dispute].
MR. TRASKY said incremental habitat loss is the primary cause of
the dramatic decline in wild, freshwater anadromous fish
populations in the United States. By moving ADF&G's fish
habitat protection statutes to DNR, the state would be adopting
a resource management model that has historically failed to
maintain fisheries habitat. He reiterated that the Pacific
Northwest is a model for that [decline in fish populations] and
has consistently failed to protect fish habitat. With regard to
the Oregon model mentioned by Mr. Rue, Mr. Trasky said several
Pacific Northwest states use the model that DNR's proposing. He
told members:
The best source of empirical data illustrating the
inherent flaws in this type of system, where all
decisions are internalized, is the U.S. Forest
Service. The U.S. Forest Service is a very large,
well-funded agency tasked with developing timber and
nonrenewable resources and conserving fish and
resources and habitat in national forests. In
addition to foresters, for many years the [U.S.]
Forest Service has employed fish and wildlife
biologists and hydrologists to help decision makers in
the [U.S.] Forest Service balance competing interests
on forestland.
However, a recent report by a governmental colleague
found that up to 70 percent of all the stream
crossings constructed on federally managed land in the
Pacific Northwest over the last four years blocked
fish passage. Fish (indisc.) and production on
thousands of miles of former fish habitat has been
lost, and this is a prominent part to the declines
that we've seen.
Number 1610
MR. TRASKY asked the committee to reject EO 107 and to keep the
authority and responsibility to protect fish habitat within
ADF&G, the most appropriate agency to manage the state's permit
system, since it protects habitat and produces the fish habitat
that benefits so many Alaskans. He said the value of the
state's fisheries exceeds the value of all the other industries
in the state, except oil. He said fish habitat [loss] and
litigation (indisc.) are the primary reasons that anadromous
fish populations have declined to disastrous levels in the
United States.
MR. TRASKY told the committee that habitat loss is forever. He
indicated that's what's keeping salmon fisheries in the Pacific
Northwest from recovering, even after years of fishing closures
and billions of dollars of federal and state restoration
expenditures. He said habitat protection is relatively
inexpensive compared with restoration. He asked the committee
not to change a system that's efficient and [effective].
Number 1675
DOUG HILL told the committee that he is an Alaskan resident who
is 44 years old. He said he supports responsible development;
therefore, he strongly urges the committee to disapprove of
EO 107, which he views as a serious threat to salmon; resident
fish; fish habitat; wildlife supported by fish; habitat near
shore and inland; and subsistence, sport, commercial, and
personal use fisheries.
MR. HILL explained Alaska's ranking in the Fraser [Institute]
report. He noted that during a March 7, 2003, administrative
press conference and a March 10, 2003, Senate Resources Standing
Committee meeting, he'd listened to Commissioner Irwin cite this
report as a justification for EO 107; furthermore, Commissioner
Irwin has publicly said, according to the report, that Alaska
ranks 50 in attractiveness to mining exploration and investment
for the past number of years has decreased in attractiveness to
mining investment. Mr. Hill said neither statement is true.
The number 50 is an index number. He clarified, "Companies are
simply asked to consider 10 factors that determine the ability
of select jurisdictions to attract exploration investment." He
added that companies rate these 10 factors on a scale of 1 to 6.
MR. HILL noted that the Fraser [Institute] report provides three
basic index numbers: a policy index, a mineral potential index,
and an investment attractiveness index. The investment
attractiveness index is a combination of the policy and the
mineral protection indexes. He told the committee that the
index number to which Commissioner Irwin referred was ranking
only the policy index for the years 2002-2003. In those years,
Alaska's policy ranking was rated higher than those of China,
Ecuador, and Russia, for example. Mr. Hill noted that since the
report has been in existence, Alaska "has increased." In 2001
and 2002, 38 out of 45 government geographical regions were
(indisc.) for investments in Alaska. He continued:
I'm wondering why the commissioners have to refer to
Chris Kennedy for simple policy procedure questions
such as, "At what elevation will a contentious issue
be raised." These are the guys [who] are supposed to
be implementing these policies; these are the guys
[who] are promoting and supporting this policy, and
they have to refer to an attorney. This just doesn't
make sense to me, and it's got me very worried.
MR. HILL asked that the fish and wildlife and humans that depend
on it not be forgotten. He stated disapproval of Governor
Murkowski's executive order [EO 107].
Number 1874
DAN ROSENBERG testified that he has worked for ADF&G for the
past 20 years in what is currently the Division of Wildlife
Conservation. He mentioned the importance of maintaining the
interdivisional coordination within ADF&G, which he said leads
to expedient permitting and sound resource management.
Mr. Rosenberg applauded the professionalism of the many habitat
biologists with whom he worked over the years. He said they
have brought knowledge and experience that belongs within ADF&G.
MR. ROSENBERG voiced hope that EO 107 would be debated and
ultimately dismissed as counterproductive to both Alaska's
economy and its environment. He said Alaska has the mechanism
in place to deal with any policy changes to the permitting
process that may need addressing. He said the governor's
authority will appoint a new commissioner to ADF&G and a new
director to the habitat division. Saying the system has worked
since statehood, through five governors, he opined that five
former commissioners [of ADF&G, who had come out publicly in
opposition to EO 107] would agree with him.
MR. ROSENBERG said different missions trigger healthy debate,
and concepts get elevated to the director or commissioner level,
where they are and should be resolved. He told members, "If you
must change the policy - as every governor has the right to do -
there's no need to change the process." He said [Alaska] needs
thoughtful solutions to its economic and environmental concerns,
not scapegoats. He said facts, not anecdotes, should
precipitate change, and the facts show the current system works.
MR. ROSENBERG said Alaska is the only state that has a proven
track rate of a sustainable fishery. Its fisheries and wildlife
are the envy of the world and an economic mainstay to tourism,
commercial and sport fishing, and subsistence. He asked why
anyone would want to jeopardize that by replacing a proven
system with an untested one in an agency such as DNR that can't
match habitat efficiency or biological expertise. He said the
most favorable term he could couch this in is "penny wise and
pound foolish."
Number 1968
MR. ROSENBERG concluded by reading from former Governor Egan's
State of the State address to the legislature in 1960, as
follows:
On January 1 of this year, Alaska Department of Fish &
Game was handed the depleted remnants of what was once
a rich and prolific fishery. From a peak of three
quarters of a billion pounds in 1936, production
dropped in 1959 to the slowest in 60 years. On these
ruins of a once great resource the department must
refill, our gain is that we can profit by studying the
destructive practices, mistakes, and omissions of the
past.
MR. ROSENBERG said this was the legacy given the state; however,
ADF&G has rebuilt and maintained that fishery; that fishery was
able to recover with good management because the Alaskan salmon
habitat was not diminished. He concluded, "Let's not weaken
[ADF&G] and make mistakes that, this time, may be irreversible.
Alaska should be the model, not Oregon."
Number 2017
JOHN STURGEON, Koncor Forest Products, noted that he is
currently on the board of directors for the Alaska Forest
Association, the Resource Development Council, and the Nature
Conservancy. He said he has been on the Board of Forestry for
18 years and has been state forester under two governors.
MR. STURGEON stated his support of EO 107, saying he thinks it
will bring more efficiency to state government. He disagreed
with testimony regarding DNR's being strictly a resource
development agency and comparing [the entrusting of] habitat
protection to DNR as "the fox guarding the chicken coop." He
offered a private timber operator's perspective, saying DNR has
always been the primary enforcement agency that has administered
the Forest Practices Act since 1991, and has been the agency
with primary responsibility for salmon stream buffers. Habitat
has had due deference on salmon streams and various tree
selections, he asserted.
MR. STURGEON said the transfer of habitat permitting
responsibilities to DNR will further a longstanding concept
embodied in the Forest Practices Act: "one-stop shopping." He
explained that when a timber operator complies with the Forest
Practices Act, it automatically combines the Coastal Zone
Management Program, the state's Clean Water Act, the federal
Clean Water Act, and other statutes. He said it serves both the
state and the operators and saves them both time and money.
MR. STURGEON referred to placement on "840" and "870" streams
and said, "For these streams we still need two agencies to tell
us how to put in the same exact culvert - even the most routine
culvert project." He expressed hope that under the new system,
agencies can finally get together and agree on a single set of
standards on a routine culvert and how to place the culverts
properly. Mr. Sturgeon said, with a large state deficit, he
doesn't see how the checks and balances system is justified with
two agencies traveling to remote logging operations to tell the
timber operator how to put in the same, routine culvert. He
told the committee the timber industry has said repeatedly that
it has no problem providing adequate fish passage, but has
"begged and implored" that it be done in an efficient and cost-
effective manner.
Number 2119
REPRESENTATIVE BERKOWITZ pointed out that Mr. Sturgeon isn't
testifying for habitat protection. He commended HB 78 to
Mr. Sturgeon as an alternative solution for his permitting
issue. That bill has a single application whereby whatever
state agency first gets the permit would be responsible for
"bicycling it around." He said he thinks that would solve some
of the problems Mr. Sturgeon has raised; rather than try to move
all the entities of government under on roof, [HB 78] would just
move the permit application itself.
Number 2163
BILL STEVENS, President, Cassandra Energy Corporation, asked the
committee to support EO 107. He said he has been in a
"permitting mode" since October 2000, which he said has mostly
been a federal situation, rather than a state one. He asserted
that the Division of Habitat [and Restoration] cost him seven
months of additional permitting by the federal agencies "because
of changes they wanted made." He remarked that he has heard
stories about 14-day permit turnarounds, but said it certainly
has nothing to do with any situation he's been in. He indicated
that there are turf battles that draw out the process and he
opined that the [delays] are all basically stem from [ADF&G].
He said he doesn't know if [EO 107] will solve the problem, but
something needs to be done. He concluded, "I don't think it's
putting the fox in charge of the chicken coop, but, frankly, I
don't think anybody's in charge of the chicken coop right now."
Number 2265
PAUL SHADURA II, President, Kenai Fishermen's Association, read
from his written testimony [included in the committee packet] as
follows:
I would like to incorporate my remarks from the Senate
Resource Committee in this testimony and, in addition,
the survey analysis from the ADF&G [Division of Sport
Fish]. Tonight I would like to comment on the
document, "Reorganization Proposal In Accordance With
Executive Order ... 107." Under "Functions Moving to
Sport Fish," we find various research and restoration
projects. The [Division of Sport Fish] has been
extremely controversial in their habitat assessments
within the Kenai River watershed. It has been noted
by area residents, sport fishers, commercial
fishermen, and others that the direction the division
has taken on use issues on the Kenai River suppresses
evaluation caused by boat wakes and other high-traffic
conditions that destroy habitat for juvenile king
salmon and other species.
Number 2298
MR. SHADURA continued:
Our legislators in our district are well aware of the
department's conflict of interests that are apparent
in Board of [Fisheries] decisions on in-river guide
activity on the Kenai River.
In "Rates of Participation in Alaska's Recreational
Fisheries," department personnel conclude: "It
appears the division is not achieving its goal of
increasing sport fishing participation rates." The
trend in this report pose[s] a serious threat to the
fish and game fund. This fund provides direct and
matching money for Alaska's sport fisheries. We must
look to stabilize the contributions to this fund,
especially from the sale of resident licenses, given
potential volatility in nonresident license sales.
It is apparent that the Division of Sport Fish has a
conflict in protecting a habitat that has a potential
income stream that funds the department. This is an
inherent flaw within the division and could be
perceived by the public as a conflict of interest. It
is the one reason why habitat assessments should be
directed by a panel of impartial reviewers. The
Division of Habitat [and Restoration] has been
associated with a non-biased approach to habitat
degradation that favors neither commercial or sport
divisions or their users. We do not support the
concept of "the fox watching the henhouse."
Our last suggestion to strengthen our governor's EO is
that we believe that it is possible to use Article
III, Section 25, to create a commission within ... DNR
that will incorporate a review process that will allow
expertise and balance to the regulatory permit
process. The commission would have to go through the
confirmation and the administration's appointee review
process, thereby settling issues the public may have
with protection and utilization of our resources.
Number 2363
DON CORNELIUS testified that he is a retired biologist who
worked for the habitat division for 13 years, and for ADF&G for
24.5 years.
TAPE 03-22, SIDE B
Number 2367
MR. CORNELIUS said it has become apparent that many people don't
understand how the division works, and it has become a scapegoat
for developers who don't like permitting. He paraphrased his
written testimony [included in the committee packet] as follows:
First of all, you need to consider that the reason the
division was formed was to give ADF&G a voice in
reviewing developmental activities which affect fish
and wildlife. Without coordinators, it was easy for
the different divisions to provide conflicting and
thus confusing comments. Professionals within ADF&G
who understand the permitting system allowed other
fish and wildlife staff to focus on their primary
duties while maximizing the quality of the
department's input.
As the division functions today, when habitat
biologists receive applications for permits or
environmental reviews, they serve as a focal point for
input from the entire Department of Fish & Game. Any
permit or project is routed around the offices under
whose jurisdiction the project falls. Concerns and
comments from commercial fisheries, sport fisheries,
wildlife conservation, and subsistence staff all go
into the equation.
MR. CORNELIUS highlighted that habitat biologists also function
as "point men" for other agencies - the U.S. Fish and Wildlife
Service, the National Marine Fisheries Service, and the
Environmental Protection Agency (EPA) - in responding to U.S.
Army Corp of Engineers permits and other environmental reviews.
He explained:
This is because of their local knowledge and ready
access to input from other ADF&G divisions. Some
projects that might otherwise be held up by other
agencies are cleared without controversy because
habitat staff answer and resolve concerns before they
become issues. Again, this is ... because they have
local knowledge.
Any projects that are held up are delayed for good
reasons. They potentially have significant impact on
fish and wildlife resources. Not all proposed
development is benign. For every project the governor
claims has been derailed by habitat staff, others
should have been held up or even rejected. The
political pressure on habitat biologists is intense,
and Alaskans now live with permanent impacts that
could have been mitigated or avoided.
I worry that moving the division to DNR will only
increase this pressure. While the governor hopes to
speed up permitting, moving some functions of the
division to DNR and eliminating the rest is likely to
have the opposite effect. This action will break the
link with ADF&G. No longer will "permitters" have
ready access to biologists from the other divisions.
Just communicating with ADF&G will become a logistical
barrier.
MR. CORNELIUS, in response to a request by the chair, summarized
that his primary concerns are regarding the break between
habitat biologists working for DNR, "the department," and the
loss of links with other agencies. He said he thinks previous
testifiers have covered most of his other issues. He suggested
the governor's justification to eliminate the division was
pretty much unfounded and resembles a lynching in the Old South.
Number 2226
MIKE MILLIGAN, testifying on behalf of himself, said he is
"somewhat cautious and against [EO 107]." He told the committee
that he was active in local government for many years. He said
he has a fiduciary concern regarding [EO 107]. Offering his
understanding that federal Dingell-Johnson Act monies could be
applied to an agency that manages fish and game, which [the
Division of Habitat and Restoration] was using to pay for "some
of this," Mr. Milligan asked the committee to investigate
whether those monies could also be used by DNR. If not, he
proposed, ADF&G will still be able to use the money, but not in
the habitat division; in that case, new money would have to be
found in order for DNR to run the division. Mr. Milligan said
he believes the monies are from the sale of sporting equipment
and must go to an agency that manages fish and game.
Number 2133
TIM JUNE testified in opposition to EO 107. He noted that he is
currently the fisheries representative on the Board of Forestry
and had been a special assistant to former Governor Knowles on
oceans and watersheds. Mr. June urged the committee to soundly
reject EO 107 and instead increase the budget to [the Division
of Habitat and Restoration], not cut the budget and the number
of biologists. Indicating the state has been doing this right
since 1959, he highlighted the successful habitat and abundant
fish populations and suggested [Alaska] needs to continue that
policy in earnest. Noting that California, Oregon, Washington,
and British Columbia are all struggling to restore lost habitat,
he remarked, "Under the gun of the Endangered Species Act,
that's not a simple task."
MR. JUNE mentioned the 1995 anadromous fish habitat report and
explained that in 1995 a "regime shift" in the oceans shifted
nutrients down to the Lower 48; those nutrients won't be
shifting back to Alaska for another 15 years. He said, "The
commission recommended that our charge, in the next 15 years, is
to maintain our habitat so when those nutrients do come our way,
we'll have the fish and the habitat that will be accessible to
replace our fish population."
MR. JUNE told the committee he is a 22-year commercial fisherman
and is testifying as such. He reminded members that the salmon
industry is in deep trouble [economically] and that a task force
and a number of other entities are looking at trying to improve
it; he expressed gratitude that the major consideration is
market-based. He encouraged the committee to investigate this
and make the right decision for all Alaskans.
The committee took an at-ease from 9:07 p.m. to 9:09 p.m.
Number 2003
BILL HAUSER, Ph.D., testified that he is in support of
[Alaska's] fishery resources, the unique habitats that are
required to support them, and their long-term sustainability.
He said he thinks this can best be accomplished by retaining the
function of habitat protection within a resource conservation-
based agency. Noting that he is a retired fish biologist from
ADF&G but has never been a "permitter," he said, most
importantly, that he is testifying as a fisheries scientist: he
holds a Ph.D. in fisheries, with over 30 years' experience; is
past president of the Alaska chapter of the American Fisheries
Society, which includes over 400 fisheries scientists in Alaska;
has been in Alaska 22 years; and has past involvement including
fisheries enhancement and fish habitat enhancement projects and
community education regarding the importance of good-quality
fish habitat to preserve fisheries.
DR. HAUSER said fish is the most important [resource] in Alaska.
He remarked, "If we care about the legacy of this resource for
future generations, we must protect the production factor for
that resource: good-quality fish habitat for spawning, rearing,
escape, overwintering, and open passage and access and migration
amongst these habitats." In addition, he noted, when the
nutrients from anadromous fish populations are reduced or
destroyed, other resident fish populations, birds, wildlife, and
even streambed vegetation are diminished. He continued:
We've heard here tonight how the numbers of salmon
returning to Alaska streams have been decimated over
time, but they've rebounded with good management.
More specifically, however, they have only rebounded
in areas with healthy, intact habitat. If the habitat
is missing, the fish populations cannot recover. Lost
habitat sometimes can be repaired, but the cost of
repair is far greater than the cost of protection.
Even with repair, it can never be restored to the
original condition; there is always a net loss.
Number 1920
DR. HAUSER continued:
Until now, these important fishery resources have had
a measure of protection with equal consideration with
development, or other important natural resources,
through our open discussion with checks and balances.
If the function of habitat protection is included in
the Department of Natural Resources, whose primary
mission is resource development, one can only assume
that when decisions are made - which would be made
internally and not publicly, with a smaller staff -
... this system will favor resource development at the
detriment of our aquatic resources. Sometimes there
may be large-scale losses, but small-scale losses will
also accrue with each project and accumulate each year
for a long-term ... loss.
DR. HAUSER said he disagrees with the previously stated
testimony of Mr. Rosenberg, who suggested that "this proposed
new process has not been tested." He indicated he has been told
by people in Washington State that EO 107 resembles the approach
that's been in place there, where anadromous fish runs have been
depleted to about 3 percent of historic levels; this is
attributed to the loss of habitat and degradation in a matter of
just a few human generations. Dr. Hauser said, "Clearly, this
system was tested and did not work in the state of Washington,
and it is not clear why it will work in Alaska." He said this
isn't the sort of legacy he envisioned. He asked the committee
to reject EO 107 and retain the function of habitat protection
within ADF&G.
Number 1830
WILLY DUNN noted that many potential testifiers [at the Homer
Legislative Information Office (LIO)] had to return home; he
expressed hope that members would read their faxed testimony and
remember that many people around the state are very concerned
about this. Mr. Dunn expressed concern that EO 107 will have
long-term negative impacts on Alaska's fish and wildlife; those
impacts may not be seen for 20 to 50 years. He said he wants
his grandchildren to have jobs and enjoy Alaska, just as
Commissioner Irwin stated. He added, "Forty or fifty years from
now, when his grandchildren are in Alaska, I hope they're not
saying, 'What was grandpa thinking when he did this!'"
MR. DUNN said he thinks EO 107 will also precipitate lawsuits.
He said the [Division of Habitat and Restoration] is in place
and works with industry. Although it's not always easy and
straightforward, that's how government is. Mr. Dunn opined that
a change to statute as broad and far-reaching as EO 107 really
needs to be taken on by the legislature through thoughtful
deliberation and an open public process, rather than through an
executive order. He said Alaska is not a business. The effect
will be upon people's lives and the future of wildlife in the
state, as well as [Alaskans'] children and grandchildren.
Number 1724
NICKY SCARZI noted that she works for ADF&G's Division of Sport
Fish, but is testifying on behalf of herself. She said she
provides local expertise on the fisheries that she is familiar
with to habitat biologists when they are dealing with permits;
in return, when she or a member of the public needs response to
an issue, she can talk with habitat biologists. If those
biologists are moved to DNR, she said, she doesn't know what
kind of responsiveness she will receive with regard to issues
that she thinks are important. Ms. Scarzi said DNR has a
mission different from ADF&G's, and she doesn't know that they
will put the same emphasis on fisheries issues that the Division
of Habitat [and Restoration] would put on the same issues if it
were to remain in ADF&G.
REPRESENTATIVE SEATON, regarding Title 16 permits, asked
Ms. Scarzi if she or someone from the [Division of Habitat and
Restoration] visits that stream before giving permits.
MS. SCARZI answered that she doesn't see every permit the
division deals with; if someone from the division isn't familiar
with that stream and cannot go look at it, she or a member of
her staff will visit the site.
Number 1610
SETH LITTLE, Alaska Center for the Environment (ACE), noted that
ACE is Alaska's largest homegrown public-interest environmental
organization, with over 8,000 dues-paying members. He told the
committee:
We recognize the need to develop our state's
resources, but also identify the responsibility to
conserve and to protect the state's fish and wildlife
resources. Alaska's economy and Alaskans depend on
their unique fish and wildlife. Commercial and sport
fishermen, hunters, trappers, hunting and fishing
guides, subsistence users, and the tourism industry
rely on healthy fish and wildlife.
In order to fully comprehend and assess the impact of
the governor's proposal, the missions of ADF&G and DNR
need to be understood; they are very different.
[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 and work together to
provide a system of checks and balances and an
opportunity for fish and wildlife biologists to work
with developers through the permitting process. That
is why the First [Alaska] State Legislature created
two separate resource agencies to manage the state's
unique and diverse resources.
By moving the permitting authority to one agency, one
agency is given [primacy] in the process of checks and
balances that have been set up to manage Alaska's fish
and wildlife resources and resource development. We
believe that if [the] permitting function is
transferred to DNR, the balance will be tilted away
from habitat protection to the long-term detriment of
our fish and wildlife resources. Under the proposed
executive order, for the first time in Alaska's
history, fish and game permitting and habitat
protection will no longer reside in [ADF&G]. [ADF&G]
will lose its authority and the [Division of Habitat
and Restoration] will be eliminated, cutting 22 jobs
and transferring 36 positions to DNR.
The executive order will change the standard of
scrutiny. The system of checks and balances will be
gone. There will be no need for DNR or industry to
work out problems with [ADF&G]. The appeal process
will be entirely through DNR. This is far more than a
process change; this is a major, substantive, and
statutory change.
Without review of plan and specifications, there's a
substantial risk that many anadromous streams, as well
as resident fish streams, will be blocked and a
significant amount of fish production will be lost, as
has already occurred throughout the Pacific Northwest.
Governor Murkowski's plan prevents fish and game
biologists from speaking up about the impact on fish
and wildlife habitat from industrial development.
Under the super DNR, fish and game biologists and even
ADF&G commissioner roles would only be advisory, with
no power to prevent the stressing of habitat. All
decisions would be made by DNR, the department
responsible for development.
Number 1502
MR. LITTLE continued:
The cost of this proposal are [borne] on the backs of
Alaska's fish and wildlife and Alaskan residents and
(indisc.) who depend on them. The Murkowski
Administration contends that [the Division of Habitat
and Restoration] stands in the way of legitimate
projects for personal reason. When Governor
Murkowski's examples and habitat permitting history is
examined in detail, it is clear habitat permitting is
timely, especially in comparison with DNR, and the
cited examples show how ADF&G is upholding the
standards required to protect habitat under state law.
MR. LITTLE said if there are problems with personal views and
actions impeding projects, then this is a management situation
that should be handled through proper discipline. He indicated
that the facts relating to issuing permitting don't point out a
permanent problem. He also said it doesn't appear moving Title
16 permitting to DNR will speed up the process. He said, "With
less staff, less balance, and less accountability, it appears
that project proposals may lead to litigation and more delays."
He said ACE urges the legislature to bring the issue to the
House and Senate floors to be debated and to support a
resolution to disapprove EO 107.
Number 1442
ERIC KNUDSEN, Ph.D., told the committee he is a professional
fisheries scientist with over 20 years' experience in management
and research on pacific salmon, trout, and other fish and
wildlife. He has conducted studies in Alaska and the Pacific
Northwest, many of which focused on the effects of habitat
alterations on the ecology and productivity of salmon and trout.
He said he is a member of the American Fisheries Society and is
the current past president of the western division of that
society. He mentioned a copy of [the opinions of] that society,
which he said he'd attached to his own submitted written
testimony. He continued as follows:
There are three scientifically based points that,
taken together, argue for a resolution to reject
EO 107. First, there's absolutely no scientific doubt
that healthy stream and riparian habitats are
fundamental to the amount of salmon, steelhead, and
other related fish and wildlife produced in the
Alaskan watershed.
Second, a combination of solid science in Alaska and
elsewhere, together with a long history of experience
in the Pacific Northwest, clearly demonstrate that the
gradual, incremental, cumulative effects of numerous,
seemingly minor habitat alterations can lead to the
destruction of the habitat base that supports
productive salmon and other fisheries.
Number 1382
DR. KNUDSEN continued:
Third, a scientific research in the Pacific Northwest
has led to the conclusion that it's much more
difficult to repair stream and riparian habitats to
their fully functional state than it is to simply
protect the natural stream functions in the first
place.
In regard to the State of Alaska administrative
procedure that may be [of] most interest to the [House
State Affairs Standing Committee], it's extremely
difficult to disengage the effects on habitat from the
administrative process. The scientific basis for
protecting habitat is largely indisputable. So, the
effectiveness of protection completely depends on,
first, the attitude of the commissioner or the agency
responsible for the protection - the policy attitude,
that is; second, the extent of protection allowed
within that department or organization; and, third,
the number of employees or resources that are put
toward that protection.
It's impossible to judge how effectively habitat will
be protected if the permitting functions are
transferred from ADF&G to [DNR], but because the
stated purpose ... is to speed and streamline
development, I can only believe that habitat
protection will be less effective.
DR. KNUDSEN suggested the potential problem perhaps lies in the
administration's policy of wanting to speed development.
Because [Alaska's] salmon resources are so important and solid
scientific evidence demonstrates that healthy habitat is key to
sustaining the salmon fisheries, he urged the legislature to
reject EO 107 and retain habitat-permitting functions within
ADF&G.
Number 1260
DALE PIHLMEN told the committee he is a long-time resident of
Ketchikan and is against EO 107. He opined that it is a poor
idea that will weaken protection of valuable salmon streams and
spoil the aesthetic of valuable wilderness, with potentially
disastrous economic consequences. Mr. Pihlmen said he has spent
20 years as a commercial fisherman and 20 years in the tour
industry; both industries are dependent on the biological
integrity of Southeast Alaska's ecosystems. He said streams in
Southeast Alaska are an important element in the ecosystems and
are essential for the economic well-being of both industries.
Specifically, protecting [the state's] salmon streams is
essential for future economic viability of the salmon industry.
MR. PIHLMEN indicated the state has had the benefit of good
management from ADF&G, but pointed out that the level of
abundance currently being experienced is the result of cyclic
environmental factors that affect ocean currents, weather, and
temperatures, but that aren't well understood. He said the
years of full return prompted major changes in the salmon
industry such as limited entry and a private, nonprofit hatchery
system. He warned that Mother Nature is fickle and the cycle of
abundance could quickly change; as a result, salmon runs could
dry up dramatically. He mentioned biological integrity of
streams as well as support for the tourism industry, and said
streams and uncut old-growth timber are the heart and soul of
ecosystems in Southeast Alaska. He concluded:
As wilderness ... diminishes and the population
increases, the value with these valleys increases
exponentially. The value of timber and their streams
in Southeast Alaska to tourism and the fishing
industry far exceeds its value as timber harvested
every hundred years. The governor's proposal would
dramatically weaken protection of the areas that are
essential to the long-term economic viability of the
fishing and touring industries for short-term gain of
the timber industries.
Number 1127
MATTHEW LaCROIX testified that he currently works in ADF&G in
the Division of Habitat and Restoration as a habitat biologist
and "permitter." He told the committee he was one of 22
employees who received a layoff notice last Friday. He asked
the committee to support the joint resolution rejecting EO 107.
MR. LaCROIX said the committee members need to honestly examine
the issue of whether the proposed transfer of Title 16
permitting authority out of ADF&G will benefit or harm the
state. He opined that this is a question the legislature has
the obligation to answer before the executive order is allowed
to take effect. Mr. LaCroix said that in the business world, a
company reduces its workforce only if it decreases production or
if advances in technology allow fewer workers to produce the
same or more. Saying the new habitat office in DNR claims it
will be able to process the same number of permits with 22 fewer
employees than it currently takes, he told members:
When you reduce permitting staff, you undermine the
ability of remaining staff to issue meaningful
permits, regardless of what department they've worked
for. Very few of the permits that I personally wrote
were off-the-shelf. Just like the fish habitat
permits issued to Fort Knox that Commissioner Irwin
has said such positive things about, most of these
permits were issued after hours of background research
and consultation with applicants and staff from other
departments and agencies. Often, we need to conduct
field visits or collect biological data before a
permit can be issued.
Number 1045
MR. LaCROIX continued:
The amount of time that we can currently spend working
with applicants is characterized by the governor's
stalling, but it means that few applications are ever
denied. It also means that instead of superficially
reviewing an application, in either approving or
denying it as proposed, we can look for alternatives
that benefit both the applicant and the environment.
MR. LaCROIX mentioned the Glenn Highway-Parks Highway
interchange work that the governor has cited as one case where
the [Division of Habitat and Restoration] "stalled" a legitimate
project. Mr. LaCroix said nothing could be further from the
truth. He indicated that staff had worked with contractors to
modify the project in many significant ways that resulted in
saving substantial amounts of money.
MR. LaCROIX summarized that this reorganization will lead to
increased permit backlog, more permit denials, less effective
permits with less monitoring and compliance, and permitted
projects that will have greater environmental impact. This
transfer of permitting authority will place the state's valuable
fish and wildlife resources at risk and open up the state to
lawsuits, while gaining nothing in exchange. He said members of
this committee have an obligation to act in the best interest of
their constituents and the state; in this case, that obligation
requires nothing less than the rejection of [EO 107].
Number 0957
GARVAN BUCARIA paraphrased his written testimony [included in
the committee packet] as follows:
The major theme that the governor has agreed to ...
under the constitution is perpetuation of productive,
healthy stocks of fish and wildlife available to the
people, these are found in Sections 1, 2, 3, 4, and 16
of our state constitution, Article VIII, natural
resources. ... Before now, the executive branch of the
state delegated responsibility for fish and game and
their habitat to [ADF&G]. Now the governor's
promulgation of EO 107 eliminates the commissioner of
[ADF&G's] authority to protect aquatic habitat by
deleting ... the [Division of Habitat and
Restoration].
Shifting responsibility to DNR, "deputy
commissioner/state forester" raises serious questions
as to the wildlife and fisheries habitat oversight.
Public perception is important. It would convey an
impression of subordination of fish and wildlife
habitat protection for development concessions.
I believe it is a mistake to implement EO 107, and I
ask that the [legislature] exercise [its] role in the
government district roles of checks and balances, and
reject EO 107 on behalf of the people of Alaska. I
also ask those members of the legislature who have to
recuse themselves, who might have conflicts of
interest concerning pending court cases involving
permitting actions through [ADF&G] [Division of]
Habitat and Restoration [to do so].
Why change something that works? On the second page
[of the written testimony] I'll refer you to items 4,
5, and 6, which may have economic implications
relative to the shift in authority for habitat
protection.
[EO 107 was held over.]
ADJOURNMENT
Number 0803
The House State Affairs Standing Committee meeting was recessed
at 9:36 p.m. [The meeting was reconvened March 12, 2003, at
6:30 p.m.]
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