Legislature(2001 - 2002)
04/12/2002 03:40 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES COMMITTEE
April 12, 2002
3:40 p.m.
MEMBERS PRESENT
Senator John Torgerson, Chair
Senator Rick Halford
Senator Ben Stevens
Senator Kim Elton
MEMBERS ABSENT
Senator Gary Wilken, Vice Chair
Senator Robin Taylor
Senator Georgianna Lincoln
COMMITTEE CALENDAR
SENATE BILL NO. 14
"An Act relating to pesticide use; and providing for an effective
date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 241(RES)
"An Act relating to a railroad utility corridor for extension of
the Alaska Railroad to Canada and to extension of the Alaska
Railroad to Whitehorse, Yukon, Canada."
HEARD AND HELD
HOUSE BILL NO. 420(title am)
"An Act repealing certain sunset provisions relating to the use
of water; and providing for an effective date."
MOVED HB 420(title am) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 421(RES)(title am)
"An Act relating to requiring the Department of Natural Resources
to develop and maintain a standardized procedure for processing
applications and issuing permits, authorizations, and
certifications under the Alaska Water Use Act and to make a
record of those items and amendments and orders affecting them
available on the Internet."
MOVED SCS CSHB 421(RES) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 14 - No previous action to record.
HB 241 - See Transportation minutes dates 1/31/02
HB 420 - No previous action to record.
HB 421 - No previous action to record.
WITNESS REGISTER
Ms. Geran Tarr
Staff to Senator Ellis
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 14 for the sponsor.
Mr. Roco Moschetti
IPM of Alaska
POB 875006
Wasilla AK 99687
POSITION STATEMENT: Commented on SB 14.
Ms. Janice Adair, Director
Division of Environmental Health
Department of Environmental Conservation
555 Cordova Street
Anchorage AK 99501
POSITION STATEMENT: Commented on SB 14.
Mr. Chip Nordhoff
No address provided
Anchorage AK
POSITION STATEMENT: Commented on SB 14.
Ms. Kate Bryson
No Address provided
Anchorage AK
POSITION STATEMENT: Supported SB 14.
Mr. Tom Macchia
POB 221285
Anchorage AK 99522
POSITION STATEMENT: Supported SB 14.
Mr. Randy Virgin, Director
Alaska Center for the Environment
801 G St #100
Anchorage AK 99501
POSITION STATEMENT: Supported SB 14.
Ms. Taya Cummins
807 G St #100
Anchorage AK 99501
POSITION STATEMENT: Supported SB 14.
Ms. Pamela Miller, Director
Alaska Community Action
505 W. Northern Lights
Anchorage AK 99503
POSITION STATEMENT: Supported SB 14.
Ms. Carol Carnes
Ketchikan AK
POSITION STATEMENT: Supported SB 14.
Ms. Jewel Jacobs
Ketchikan AK
POSITION STATEMENT: Supported SB 14.
Ms. Emily Neiman
Alaska Advocacy Manager
American Cancer Society
No address provided
POSITION STATEMENT: Supported SB 14.
Mr. Peter Fellman
Delta Junction AK
POSITION STATEMENT: Commented on SB 14.
Representative Jeannette James
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 241.
Ms. Jennifer Yuhas
Staff to Representative Masek
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 420 and HB 421 for sponsor.
Mr. Bob Loeffler, Director
Division of Mining, Land and Water
Department of Natural Resources
550 W 7th Ave., Ste 1070
Anchorage AK 99501
POSITION STATEMENT: Commented on HB 420 and HB 421.
Mr. Tadd Owens, Executive Director
Resource Development Council
121 W. Fireweed #250
Anchorage AK 99503
POSITION STATEMENT: Supported HB 420.
Ms. Marilyn Crockett, Deputy Director
Alaska Oil and Gas Association (AOGA)
121 W. Fireweed, #207
Anchorage AK 99503
POSITION STATEMENT: Supported HB 420.
Mr. Jan Konigsberg
Trout Unlimited
On behalf of/Alaska Public Waters Coalition
1399 W. 34th #205
Anchorage AK 99517
POSITION STATEMENT: Opposed HB 420.
Mr. Keith Bayha, Chairman
Alaska Public Waters Coalition
10443 High Bluff
Eagle River AK 99577
POSITION STATEMENT: Supported HB 420 with proposed amendments.
Mr. Chip Dennerlein, Director
Division of Habitat and Restoration
Department of Fish and Game
333 Raspberry Rd.
Anchorage AK 99518
POSITION STATEMENT: Supported HB 420 and HB 421.
ACTION NARRATIVE
TAPE 02-12, SIDE A
Number 001
SB 14-TRACKING OF PESTICIDE USE
CHAIRMAN JOHN TORGERSON called the Senate Resources Committee
meeting to order at 3:40 p.m. and announced SB 14 to be up for
consideration.
Ms. Geran Tarr, staff to Senator Johnny Ellis, sponsor of the
measure told members:
This legislation had been brought forward as a result
of mounting scientific evidence that pesticides have
the potential for adverse health effects such as
cancer, developmental disorders, reproductive failure,
birth defects, allergies and asthma. This, in fact, has
been the case of other pesticides that were once widely
used, such as DDT. More recently, [indisc.], once the
most widely used pesticide in the United States was
banned. This ban was a result of new evidence acquired
after the passage of a federal law, the 1996 Food
Quality Protection Act, which required the EPA to go
back and retest pesticides for their safety. Only this
time they were tasked with using children's health as a
benchmark for safety. Although this product was used
for years it was banned when the health effects to
children were fully realized.
The American Medical Association has urged the
government to support improved reporting systems for
pesticide usage and pesticide related illnesses. This
illustrates the need for more information on pesticide
use. We in Alaska need to be especially concerned
because of our unique environment. In northern
latitudes there is a phenomenon where chemicals used
here are transported here from other places, called
bioaccumulation, meaning they do not break down in the
environment like they would elsewhere. In order to
protect public health, particularly children's' health,
we need to track the use of pesticides in our state. SB
14 is an important first step in gathering information
to make effective policies and to protect public
health.
MS. TARR said a proposed committee substitute (CS) was drafted.
She explained the changes in the CS as follows.
Section 1 places the registration and licensing fees collected by
the Department of Environmental Conservation (DEC) under program
receipts so that the fees collected are accounted for separately
and do not become part of appropriations made from the general
fund. She noted that AS 37.05.146(b)(4) is in their packet for
reference. A lot of other program receipts are set up this way,
like the Pioneers' Home.
Section 2 allows the department to charge a registration fee of
$150 to pesticide manufacturers to register their product for
commercial sale in Alaska. Of the 4,571 pesticide products
registered for sale in Alaska, all are produced by outside
companies. They would be charged the registration fee. Currently,
Alaska is the only state that does not charge a registration fee.
That fee would provide funding to administer the tracking program
established in section 5 of SB 14.
Section 3 allows the department to collect a $25 per year
licensing fee for certified pesticide applicators. There are
currently 620 certified applicators in the state. This fee would
help fund the tracking system.
Section 4 requires users to notify neighbors of commercial
pesticide spraying at least 48 hours and not more than 72 hours
before the spraying begins. This is modeled after Municipality of
Anchorage (MOA) regulations.
Section 5 establishes the tracking program and reporting
requirements. It contains nine reporting requirements listed on
page 4. It does not require that new information be reported; it
requires information that is already kept track of for accounting
records on service reports be sent to DEC. DEC could use this
information for policy making. This section also makes someone
liable to DEC for failure to comply with the reporting
requirement.
Section 6 establishes an advisory board, which is tasked with
making suggestions regarding implementation of the tracking
system and ways to make reporting as efficient, easy and user
friendly as possible. The task force has broad representation to
insure that all areas of concern have been addressed. Section 6
also states that DEC will provide technical assistance as
necessary to applicators so they can fulfill the new requirements
and a burden isn't placed upon them. It also outlines ways in
which DEC will make this information available to researchers,
policy makers and members of the public while insuring the
privacy of individuals and applicators.
MS. TARR informed members that DEC has proposed two amendments.
CHAIRMAN TORGERSON thanked her and said the committee would begin
with testimony from the teleconference network.
MR. ROCO MOSCHETTI, IPM of Alaska, said he owns and operates a
small pest control business and specializes in biological
controls to protect greenhouse plants from pests. Biological
controls are beneficial organisms that include ladybugs and green
lace wings. To stay open during the winter months, he began
providing the same pest control for homeowners in the valley that
he brought to the greenhouse industry. He uses heat and cold
treatments and vacuums to control pests such as carpenter ants,
spiders and flies. He stated, "My point is there are many
alternatives to pesticides available… The bill before the
committee will not significantly affect my business even though I
feel portions of it affect my business…"
He said the bill seems to exclude the general public who is
responsible for the majority of pesticide use in homes and
gardens in Alaska. He questioned why sanitizers and disinfectants
were excluded (page 2, line 21) as these products make up the
majority of registered pesticides in Alaska.
MS. JANICE ADAIR, Director, Department of Environmental Health,
DEC, said the pesticide program is in her division. She noted
that she had faxed general pesticide information to the
committee. In essence, she said, a pesticide is any substance or
mixture of substances that is intended to prevent, destroy, repel
or mitigate any pests. Under her program, a pest can be an
insect, mite, other animals, unwanted plants, fungi or
microorganisms like bacteria or viruses. She said further that
pesticides have been regulated in the United States in some
fashion for about 100 years with an initial focus on trade and
public health concerns to environmental concerns. There is now a
renewed emphasis on children's health concerns. Federal law
requires registration of all pesticides sold in the United States
and she understands there is a process where EPA examines the
ingredients of the pesticide, the crop it is supposed to be used
on, the amount, the frequency and the timing of its use to be
most efficient and the storage and disposal means of that
particular pesticide. She explained:
According to EPA this evaluation during registration
insures the pesticide will not have adverse affects on
humans, the environment and non-target species if it's
used according to the label. There are extensive
requirements at the federal level for the labeling of
pesticides and EPA must approve each and every label.
EPA will also conduct special reviews of certain
pesticides to determine whether their use poses an
unreasonable risk to human health or the environment
and they also will evaluate potential new pesticides in
use and promote reduced risk pesticides and non-
chemical management, such as the last speaker just
mentioned. EPA also sets exposure standards for workers
that sets limits on how much of a pesticide residue may
remain in or on food.
EPA can enter into cooperative agreements with states
to conduct inspection enforcement activities related to
the sale of distribution of pesticides, transfers by
pesticide applicators of restricted use pesticides, and
implement a field-based outreach program that focuses
on agricultural worker protection, groundwater
protection and the state's species protection. That's
where the state comes in.
Alaska does have a cooperative agreement with EPA and
we do conduct the work that I just described. We have a
state registration requirement also, as do all states,
which means that in order for a pesticide to be sold in
Alaska, it has to be registered with the department.
This allows us to know what pesticides might be used in
Alaska and it allows us to deny registration for a
product that may pose an unreasonable risk to our
particular environment. For example, we recently denied
registration for a product whose labels stated that it
would contaminate groundwater. Because so many areas of
the state depend upon groundwater as a source of
drinking water and because the product was not needed
for any unique purpose, we denied this registration.
We also have a very small state permitting requirement
for projects that are conducted by state and local
governmental entities or is set on land owned by two or
more people. Pesticide application by air or to the
water must also be approved by the state. We don't
issue a whole lot of permits in Alaska. The ones that
get the most publicity are ones that are applied for by
the Railroad. We will issue a pesticide permit for
control of biting flies and mosquitoes on a fairly
regularly basis to certain parts of the state.
We provide technical assistance to many groups, such as
the Pribilof Islands for rat eradication, the U.S.
Forest Service on non-native species or what they call
noxious weed eradication and Air Force and others on
statewide spruce bark beetle.
We have regulations that just went into effect at the
end of last month that requires schools to provide
notice to parents and guardians before pesticides are
used at the school and to close the area where they
have been used until it's safe for the children to
access it again. We recognized that children are
particularly vulnerable to pesticides and we want to
make sure the place where kids spend most of their time
is safe for them.
Pesticide applicators will also be required to keep
records of their general use for pesticides. To date,
they have only been required to keep records of their
use of restricted use pesticides. The restricted use
pesticide is a certain classification pesticide that is
identified by EPA [indisc.] that even when it's used
according to its label has such potential predicative
affects, it can only be used by applicators certified
by the state under a program approved by EPA.
MS. ADAIR said the bill would establish fees for certain
pesticide related activities and requires notice be posted on
certain properties before a pesticide is sprayed. It also
requires that a tracking system be established for use of certain
pesticides to be determined by regulation. DEC would take the
records from applicators and aggregate them into the hydrological
units established by USGS and present that information to the
public so people can get a sense of where in the state certain
types of pesticides are being used. DEC would publish a report on
an annual basis that would provide more information to the
public. It also creates a seven-member advisory board, whose
members would not be entitled to reimbursement for any travel or
per diem. The advisory board would be a resource to DEC.
One concern she has besides the amendment that Senator Ellis'
staff referenced is on page 4, line 15. The reports that DEC
receives that would be disseminated to the public would include
the location of applications and that would include someone's
address in many cases. Concern has been expressed that that
information would be subject to the Freedom of Information Act.
She recommended moving the bill forward, but leaving the location
of application exempted from the Public Records Act.
MS. ADAIR said DEC supports the intent of this bill. It is an
alternative to a permitting program that allows DEC to make
information about pesticides available to the public. Another
benefit would be to the state drinking water act, which requires
public water supplies be monitored for certain pesticides. If DEC
can demonstrate those sites are not being used, the feds allow
them to exempt those water systems from the monitoring
requirement. DEC has used registration information for some of
that, but this bill would provide better information and allow
DEC to issue more monitoring waivers.
SENATOR ELTON said if this is a notification bill, not making
public the area where a pesticide is applied eviscerates the
purpose of the bill. He asked how that is handled in other
jurisdictions.
MS. ADAIR said in her mind it is not a notification bill; it is a
tracking bill that gives them broad information about general
areas where pesticides are used. The only state in the union that
has something even close is the State of Oregon. Oregon's program
is quite a bit more extensive than this one.
MR. CHIP NORDHOFF, an Anchorage teacher, said he has followed
this issue for years and has noticed applicators spraying
pesticides at all hours of the day and night. He has talked to
the applicators about spraying around people and they are nice,
but they are not paying too much attention to the people in the
area.
MS. KATIE BRYSON, an Anchorage high school senior, said she had
been working on pesticide issues since 1998 when she became
involved in the community effort to limit the use of potentially
harmful chemicals. She said that SB 14 is not designed to
restrict the use of specific pesticides or unreasonably regulate
Alaskan businesses. She said Alaska needs a comprehensive
tracking system or there will be no way of recognizing chemical
effects. Ignorance can only prevent us from identifying potential
causes of problems and these matters impact the public and they
have a right to know.
MR. TOM MACCHIA, physician's assistant, said he was speaking for
himself. He has practiced medicine for about 23 years and a good
deal of his practice has been in industrial medicine where he has
been exposed to issues like the workers' right to know. He said:
I want you to know I worked on the Slope and it makes a
tremendous difference in terms of being able to prevent
problems with chemicals that are not necessarily
designed to be toxic. So, I urge you to pass this bill
forward favorably. I think especially when we are
dealing with chemicals that are toxic, the more people
we have understanding and knowing that they're in the
atmosphere, the better chance that we'll see problems
come up and we'll know how to deal with them.
MR. RANDY VIRGIN, Director, Alaska Center for the Environment,
said this bill is about empowering individuals by providing basic
health information so people can make informed decisions about
exposure to toxins. Fees assessed on manufacturers fund this
program and this is done in every other state. This is a cost of
doing business for companies like Monsanto. Mr. Virgin is also
the parent of two children and believes the ability to make
informed choices is important for his family's health.
MS. TAYA CUMMINS, Anchorage resident, supported SB 14. She has
seen chemicals used that have caused people harm. This
information would help protect people and establish knowledge
about what pesticides are harmful.
MS. PAMELA MILLER, Director, Alaska Community Action, strongly
supported SB 14 saying she had submitted written comments. As a
biologist, she emphasized that this bill is critical for
scientific understanding and as a basis to protect public health.
She explained:
The bill is fiscally positive and provides a direct and
measurable benefit to the public. The information
provided by a pesticide use tracking system is vital to
any credible contaminants research program. Accurate
information about pesticide use will be helpful for
pesticide applicators and companies because it will
dispel any speculation and misrepresentation of fact.
Many industrial chemicals, including pesticides, are
transported from distant sources via ocean and air
currents and now are accumulating in our northern
environment. A pesticide-use tracking bill will provide
researchers with information necessary to assess the
relative contribution of these long-range sources of
pesticide contaminants pared with those generated
within the state. Such a system is necessary for good
research and to protect water quality, our fisheries,
[indisc.] food and our health and I would just add that
we would like to see the additional requirement of
reporting from all applicators including government,
agriculture and household. Thank you very much for your
time this afternoon.
MS. CAROL CARNES, Ketchikan resident, supported SB 14 because it
will increase the public's awareness of less toxic alternatives
to pesticides.
MS. JEWEL JACOBS, Ketchikan, said she is the mother of four sons.
She has worked in five different school districts in the past 21
years. She has been told that the cost of health insurance is
rising astronomically and has seen the direct effects of
pesticides on the neurosystems of children and adults. Her
children never get sick, she thinks, because they stay away from
a lot of commercially produced foods. She thought manufacturers
should bear the financial burden of the toxic products they
manufacture. Pesticide use is harmful in her opinion and the
least we should do is have it regulated and make sure people know
where it is and have the manufacturers pay some kind of
regulatory fees.
MS. EMILY NEIMAN, Alaska Advocacy Manager, American Cancer
Society (ACS), supported SB 14 and said ACS recognizes that the
estimation of safe pesticide exposure levels involves difficult
risk assessment calculations so more research is needed. Accurate
recording of sales and use will facilitate more reliable research
regarding the cancer causing potential of many pesticides.
MR. PETER FELLMAN, Delta Junction dairy farmer, said he had some
concerns with the title of the bill and the contents. On line 9,
he thinks the broadcast chemicals can include wetting agents, hay
treatment, lime and other benign agents that registration will be
required for. Another concern is if you don't follow the labeling
instructions as stated on the back of the bottles of the
pesticides, which is federal law, it is a federal offense. He
knows the definition used for "pesticide" includes everything
from killing plants to rats, but the reality is there's a big
difference between herbicides and pesticides. He said there is
also a half-life of chemicals or how much time it takes them to
break down to organic matter. He said a posting time is already
required in state law. Last, he didn't know how they could really
control use of some of the chemicals because they are sold in
stores everywhere.
SENATOR ELTON informed him that broadcast chemicals are already
covered in state law, but this bill would make them subject to
the same reporting requirements as other chemicals.
SENATOR ELTON moved to adopt the proposed CS to SB 14 (version C)
as the working document of the committee. There were no
objections and it was so ordered.
SENATOR ELTON moved to adopt amendment 1, which reads:
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSSB 14( ), Draft Version "C"
Page 2, lines 17 - 18:
Delete "commercial building"
Insert "business premises"
Page 2, line 19:
Delete "commercial building"
Insert "business premises"
There were no objections and it was adopted.
SENATOR ELTON moved to adopt Amendment 2, which reads:
A M E N D M E N T 2
OFFERED IN THE SENATE
TO: CSSB 14( ), Draft Version "C"
Page 4, lines 27 - 28:
Delete "licensed custom, commercial, or contract pesticide
applicator"
Insert "person who is 18 years of age or older"
There were no objections and it was adopted.
CHAIRMAN TORGERSON said they would set the bill aside and bring
it up at a later date.
CSHB 241(RES)(Title am)-RAIL AND UTILITY CORRIDOR TO CANADA
CHAIRMAN TORGERSON announced CSHB 241(RES)(Title am) to be up for
consideration and noted that a proposed committee substitute (CS)
was prepared to address concerns expressed at a previous hearing.
SENATOR STEVENS moved to adopt the CS, version P, to CSHB
241(RES)(Title am) as the working document of the committee.
There were no objections and it was so ordered.
CHAIRMAN TORGERSON said the committee was concerned about the
Alaska Railroad Corporation (ARRC) getting the land without
legislative approval so the CS requires ARRC to delineate the
land and the legislature will make the offer. The CS also
contains language that leaves the subsurface rights to the
mineral estate, except gravel, with the state and gives ARRC the
right to extract sand and gravel to build a roadbed. He noted
that Representative James talked about ARRC doing a feasibility
study. He believes ARRC received $2.5 million from the federal
government to do one. The study would determine what land and
width of land would be needed, either fee simple or a lesser
interest. That eliminated Senator Taylor's concern about turning
all the land over to ARRC. He noted that Representative James
had one more amendment she would like the committee to consider.
REPRESENTATIVE JAMES commented that she wasn't aware of any money
that is available at this time from the federal government for
this work.
CHAIRMAN TORGERSON asked what Senator Murkowski got the $2.5
million for.
REPRESENTATIVE JAMES stated:
It is for a feasibility study. However, until we get
cooperation with the Canadian folks to have the
bilateral part of the commission established, it's just
sitting there with no authorization to be using it.
It's only an authorization for the bilateral commission
to do a feasibility study.
CHAIRMAN TORGERSON said that we need the cooperation of the
Canadians anyway to do the Railroad.
REPRESENTATIVE JAMES said that is true. She clarified the fiscal
note for the bilateral commission was $6 million and $4 million
had been authorized so far, but it's sitting there until the
bilateral commission is appointed.
CHAIRMAN TORGERSON said the first amendment for the committee's
consideration is labeled Utermohle P.3. It will removed the
language regarding the feasibility study, which he believes is
important because he doesn't know how anything will get done if
the project is not studied first. That amendment reads:
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: SCS CSHB 241(RES), Draft Version "P"
Page 2, lines 25 - 26:
Delete ", after completion of a feasibility study on linking
the rail system in Alaska to the North American continental rail
system,"
REPRESENTATIVE JAMES said she agrees but does not want to
restrict this opportunity to the feasibility study being
completed. She noted in the state may get some funds from the
federal government in the near future just to get the railroad as
far as Delta.
TAPE 02-12, SIDE B
4:30 p.m.
REPRESENTATIVE JAMES said going that far would be authorized
under this legislation. She pointed out the money has to come
from somewhere because a corridor has been on the ground for over
20 years. She said she assumes this will go in the same area, but
there may be some existing rights that have occurred in that
area. In addition, the gas line is also preparing a right of way
into the area, which is another reason to have the legislation in
place so that the ARRC can address any concerns. She said no one
intends to override the gasline. The purpose is to protect ARRC's
interests over the long term, as well as assist in any way
possible.
SENATOR HALFORD moved to adopt Amendment 1 (P.3).
CHAIRMAN TORGERSON objected.
SENATOR ELTON said he finds the Chairman's concern that there
ought to be a feasibility study prior to selection and/or
transferring of land for a railroad utility corridor to be
compelling. He thought the sponsor was concerned that the
feasibility study is about linking the rail system from Alaska to
Canada. He wondered if both concerns would be covered by saying,
"The corporation shall after completion of a feasibility study
determine…" and strike the linking of the feasibility study to
the Canadian corridor.
CHAIRMAN TORGERSON said he would be more inclined to support
that. He repeated that he didn't want to just turn the land over
and said there should be a study somewhere along the line even if
the railroad only goes as far as Delta. He asked Representative
James to comment on striking the words, "on linking the rail
system in Alaska to the North American continental rail system,"
from the amendment.
REPRESENTATIVE JAMES said she would not be happy with that
because so many feasibility studies aren't descriptive. She said
it is problematic for her also because ARRC could come back to
the legislature next year and ask for land that is already
identified in the corridor. The legislature will have to approve
a land transfer but it will base its decision on the information
brought forward. She said removing that language would mean ARRC
could not come forward until the feasibility study is done. She
commented, "I think this is a real breaker."
SENATOR ELTON called for the question.
SENATOR HALFORD said he would withdraw his motion to adopt the
amendment and save the trouble.
SENATOR ELTON withdrew his call for the question.
REPRESENTATIVE JAMES said that it is not imperative that this
bill pass this year and she would wait until next year.
CHAIRMAN TORGERSON asked if there was any further testimony.
There was none. He put HB 241 aside.
HB 420(title am)-REPEAL SUNSET FOR TEMP WATER USE PERMITS
CSHB 421(RES)(title am)-WATER USE ACT PROCEDURES & RECORDS
CHAIRMAN TORGERSON announced that HB 421 and HB 420 are closely
related and that the committee would hear the sponsor statement
for HB 420 first but hear both simultaneously.
MS. JENNIFER YUHAS, staff to Representative Masek, said HB 420
deals with temporary water use permits and HB 421 deals with the
permanent water rights adjudication process. HB 420 was sponsored
by the House Resources Committee to repeal a sunset clause that
was added last year into HB 185. HB 420 will help the state with
some pending lawsuits on the issue.
She explained that last year Representative Masek learned that a
lot of members from the general public were not satisfied with
the process for water rights adjudication, from testimony at
hearings about temporary water permits. People were unable to
access records they thought they should have access to and the
procedure was ambiguous and not standardized. HB 421 will
standardize the procedures for the adjudication of water rights
and provide better access to records. She said the sponsor would
be amenable to anything that would clarify which records the
public could access, what areas have water rights pending and the
status of one's application.
MR. BOB LOEFFLER, Director, Division of Mining, Land and Water,
described the division's temporary water use program as follows.
Water rights is for permanent water uses, for permanent
water needs. It is a property right to the water. Once
you get it, you get to use it until you no longer need
it. That program is not light on its feet. Because of
public notice and other things, it takes 60 days to do
a non-controversial application, a lot longer before HB
185 solved some of our problems.
The temporary water use program is a program which is
much lighter on its feet, if you will. It is for short-
term water needs, that being less than five years and
it's typically used during Alaska's short construction
season by a variety of construction users. It's not a
property right. It is revocable if we have a problem.
The procedures to issue it are: agency notice is
required, a Title 16 permit is required if it's an
anadromous water body, plus there's effective
concurrence by the Department of Fish and Game on our
most important water bodies. Public notice is
discretionary and, in fact, not usually done, because
for a short construction season, public notice is not
usually done. Of the 39 temporary water use permits we
issued on the North Slope, we did do public notice on
25 of those so far this year. Staff, before issuing it,
staff analyzes those permits for effect on fish and
wildlife and other water uses. We don't issue them for
significant effect.
What I'd like to do is give you a sense of who gets
them, how much they're for and how long. There's a
perception that temporary water use permits are for the
North Slope. North Slope is a big part of our
clientele, but it's certainly not the only one. We went
back over the FY01 permits and roughly a third of those
were in the North Slope. The rest of them were spread
throughout the rest of the northern region,
Southcentral and Southeast, with a majority being in
Southcentral. So, two-thirds of them are not on the
North Slope.
With respect to who gets them, in FY01, we issued 90
permits, of which 41 were oil and gas, 17 were for
roads, 3 for mining and 29 for miscellaneous uses - be
they lodges, cross-country travel, exploration, needing
to test a pipeline or whatever. So, roughly 60% or so
are not for oil and gas.
With respect to how long they are, we have 25% -
roughly a third of them are for 4 - 5 years. Those are
mostly on the North Slope. A third of them are for less
than three months and the median, which is to say the
average permit, is for less than a year. So, throughout
Alaska, we have permits that are on average for less
than a year. Except for the North Slope, the average is
50,000 gallons a day. They're spread throughout the
state and they're for a variety of uses.
I would like to give you just two examples of how
they're typically used. One is Icicle Seafoods out on
the Aleutians; their water source dried up. They needed
water to get through the season. We gave them 200,000
gallons per day after comment by Fish and Game so they
could get through the season and then they now applied
for permanent water rights. Our hydro-seeding company -
one applied a few years ago for 10 sources. We approved
five, because of fishery concerns after comments from
Fish and Game. And then we revoked one, actually
because the public felt it was too noisy pulling out of
one particular lake.
So, what I'm trying to leave is the impression that
they are widely used by construction industry - not
just on the North Slope and they're important for
people in our short seasons. We've been criticized for
giving these without public notice and I believe, of
course, that government should tell the people what
it's doing. Because of the devastating effects of
putting a 30 to 60 day delay during our construction
season, I don't believe we can do this for temporary
water use permits.
But the concern that people can't view what the
Department of Natural Resources is doing is a concern
that I would like to address and I believe HB 421
addresses that concern. That is, it says that we need
to put everything we do on the Web such that normal
humans who have access to the Web can understand what
we do, see where we're getting it. If they need to
appeal one or ask for one to be revoked, they can do
that. If they want to see the cumulative impacts, they
can see that, but it is public information in a way
that doesn't get in the way of our short seasons for
revocable temporary permits. So, I'm hoping that that
solves the concern over public notice and that lets
people assess what I think of as the good work that the
Department of Natural Resources does.
One last point, as I'm not going to go over the North
Slope water use. I believe you've discussed this in
committee before and I'm confident that we do an
excellent job there of protecting the resources. I'm
happy to answer any questions you might have.
SENATOR ELTON asked what process an applicant goes through to get
a temporary water use permit.
MR. LOEFFLER replied that an applicant works with DNR until DNR
is satisfied with the permit application. DNR then sends it to
the Department of Fish and Game for comment; they almost always
comment if there's any fish involved; they send it to DEC who
rarely comments. If there's a hydrologic question, the
hydrologist looks at it. If DNR believes there is enough water,
there will be no impacts on fish and wildlife or on other water
uses, then it issues the permit for up to five years.
SENATOR ELTON asked if applicants fill out a form or whether they
just walk into the office.
MR. LOEFFLER replied that DNR has a temporary water use
application form.
SENATOR ELTON asked how long the process takes.
MR. LOEFFLER replied that it can take many months to process a
controversial large project, but an easy one where there is no
other water use can be issued in one day. If there is an
emergency, DNR can call Fish and Game and be confident that
issuing a permit won't be hurting a resource.
SENATOR ELTON asked what type of an application would take five
years and whether the time period would be considerably
foreshortened if an applicant needed to reapply.
MR. LOEFFLER replied that DNR doesn't like to issue serial
temporary water use permits. The law changed and says they are
non-renewable. If someone needs multiple permits, DNR tries to
issue the permit for the length of time the applicant needs it
for. If it's over five years, the applicant should be applying
for a water right.
CHAIRMAN TORGERSON asked him to review the public notice
procedure.
MR. LOEFFLER replied for water rights, a permanent property right
to the water, DNR does public notice. For temporary water use
permits are typically used during a construction season, which is
short so DNR typically does not do public notice, although they
have on 25 of the 39 North Slope permits issued this year. He
pointed out:
But people have concerns that DNR is not doing a good
job and for them to assess those concerns, I think HB
421 is a solution, because while it doesn't put a 30
day delay during the construction season, it puts
information on the Web so people can see it, appeal the
permit, ask for it to be revoked or see them in concert
with all the others so they can assess whether their
government is doing the work it should.
SENATOR HALFORD asked how far behind DNR is in issuing permanent
water rights permits.
MR. LOEFFLER replied that DNR is very far behind. He expects to
get the backlog cleaned up within five years.
SENATOR HALFORD asked if DNR is more than five years behind.
MR. LOEFFLER said he thought 5 to 6 years is a good number for
some types.
SENATOR HALFORD said for the permanent process, DNR is more than
five years behind; for the temporary process DNR issues permits
for as long as five years. He has heard complaints that DNR can't
seem to get to the long-term process because it is overwhelmed
with the short-term process. He asked:
The temporary process can be on top of the long-term
process, can it not? I mean it isn't traditional, the
uses you're talking about, particularly North Slope,
but it can be.
MR. LOEFFLER said that is correct.
SENATOR HALFORD continued:
Somebody who has five years ago applied for water
rights can lose the effective use of water because a
temporary permit took it away.
MR. LOEFFLER replied, "A water right always takes precedence over
a temporary water use permit."
SENATOR HALFORD interrupted, "You don't have the water right if
you haven't acted on their water right application, do you?"
MR. LOEFFLER responded, "Their water right is good to the
priority date that they applied. The priority date is the date it
comes in."
SENATOR HALFORD asked how DNR knows that when it is assessing a
temporary permit and is five years behind in the permitting.
MR. LOEFFLER explained, "Once that water right comes in, we do
put those on the Web. So, when we're looking at a temporary water
-- that is we put it on our status plats. So when we're looking
at a temporary water use permit application, we'll know that
there are applications for water rights in the vicinity."
CHAIRMAN TORGERSON asked how many temporary water use permits DNR
issues per year.
MR. LOEFFLER replied that DNR did 39 this year. This year will be
an unusually active year and he expects there to be about 150
applications. Most of those are on the North Slope for
construction, mining, testing a pipeline. They try to prioritize
the water right adjudication to those who have immediate need.
CHAIRMAN TORGERSON asked whether DNR or the applicant selects the
source.
MR. LOEFFLER replied that the applicants select the source and
then there's some give and take if DNR thinks that source is
inappropriate.
CHAIRMAN TORGERSON asked about DNR's procedure for streams that
are catalogued as having fish in them versus a glacial lake.
MR. LEOFFLER replied that DNR will work with Fish and Game but
the applicant will need a Title 16 permit on all anadromous water
bodies.
CHAIRMAN TORGERSON asked if he tells that to everyone who comes
in.
MR. LOEFFLER replied yes, and that he couldn't always guarantee
that his staff does, but they should be.
SENATOR HALFORD asked Mr. Loeffler is he would object to
requiring that the applicant have a Title 16 permit before the
DNR permit can be valid.
MR. LOEFFLER said he wouldn't.
CHAIRMAN TORGERSON announced that will be amendment 1 and asked
Mr. Loeffler if he was okay with that amendment.
MR. LOEFFLER replied that he was okay with amendment 1.
CHAIRMAN TORGERSON asked him about the second amendment.
MR. LOEFFLER responded that the second amendment requires that
temporary water use applications once they're completed be put on
the Web so people can see them. He felt that is consistent with
his previous statement that the public would be able to view what
DNR is doing but it will not create a time delay during the short
construction season.
CHAIRMAN TORGERSON took public testimony.
MR. TADD OWENS, Executive Director, Resource Development Council
(RDC), strongly supported HB 420. The RDC believes that a
permanent repeal of the sunset clause that applies to temporary
water use authorizations and retention of DNR's authority to
assess fees for administration of the water program is very
important. DNR's ability to issue temporary water use
authorizations is important for a host of commercial and private
activities throughout Alaska that don't require a permanent water
right. DNR has issued temporary water use authorizations for
almost 20 years for a variety of projects across the state. DNR
has always consulted with DEC and ADF&G before issuing water use
authorizations and there has been no evidence of harm to Alaska's
fish and wildlife resources or any significant environmental
impact due to temporary water use authorization. The RDC believes
this is a regulatory program that works to support economic
development without compromising environmental protection.
MS. MARILYN CROCKETT, Deputy Director, Alaska Oil and Gas
Association (AOGA), fully supported Tadd Owens' comments and
supported HB 420.
MR. JAN KONIGSBERG, Trout Unlimited, said he was speaking on
behalf of the Alaska Public Waters Coalition, which includes
sport fishing groups, conservation organizations, former members
of the Alaska Water Board and other individuals. All are
concerned about the executive branch actions affecting the
disposition of Alaska's water resources. They do not support HB
420 and believe the temporary water use program should sunset on
July 2002 as provided in the original enabling legislation. They
don't object to a temporary water use program to provide for
truly temporary and truly unanticipated water use for a period
less than one year. Otherwise the public deserves notice and
determination of public interest. He stated:
The beneficial use of Alaska's public waters has always
been free. Even though water is every bit as valuable
as other public resources such as gravel, industrial
users aren't charged for the water, but now the
temporary water use program offers an extra bonus -
freedom from the public interest determination under
the statute. Since there is no public notice, and since
no public interest determination is required, there is
really no way other than agency discretion that users
will know how they might be affected until after the
temporary water use permit is authorized and similarly
there is no way to know the impacts to fish and
wildlife and their habitats until after the fact…
MR. KONIGSBERG noted that they submitted proposed amendments to
the committee that insure public notice, require that [indisc.]
restrict the water source, restore the definition of hydrologic
[indisc.] that is used by the other 49 states and the federal
government and require due diligence in resource monitoring.
MR. KEITH BAYHA, Chairman, Alaska Public Waters Coalition, said
everyone he represents is, "concerned about executive actions and
legislative and regulatory initiatives affecting Alaska's water
resources that would further special interests at the expense of
public interest."
He said they are generally pleased with the changes in HB 421,
but believe there is room for further improvement. Their
principal concern is that the term 'standardized procedure' lacks
definition. He said there is no procedure for evaluating and
determining public interest criteria. By establishing these
procedures in regulation they will be formalized, standardized
and clear to the public as well as to agency staff. He supported
HB 421, especially if their proposed amendments are adopted. He
offered to read them to the committee, but they already had them
in writing.
MR. CHIP DENNERLEIN, Director, Division of Habitat and
Restoration, ADF&G, said he was available to address questions.
He concurred with Mr. Loeffler's description of the process,
particularly with the North Slope. He also supported the
amendments.
SENATOR HALFORD moved to adopt amendments 1 and 2 as one
amendment to HB 421.
CHAIRMAN TORGERSON asked Mr. Loeffler if the amendment would add
an extra burden for him.
MR. LOEFFLER replied that they are already doing part 1 and part
2. They are minor burdens, but give transparency to the program
and he didn't object.
CHAIRMAN TORGERSON noted that there were no objections and
amendment 1 was adopted.
SENATOR HALFORD moved to pass SCS CSHB 421(RES) from committee.
There were no objections and it was so ordered.
SENATOR HALFORD moved to pass HB 420(Title am) from committee
with individual recommendations. There were no objections and it
was so ordered.
CHAIRMAN TORGERSON adjourned the meeting at 5:10 pm.
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