Legislature(1999 - 2000)
04/13/2000 03:25 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
SENATE RESOURCES COMMITTEE
April 13, 2000
3:25 p.m.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Lyda Green
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Sean Parnell
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 60
Opposing the designation of millions of acres of Alaska as critical
habitat for the Spectacled Eider and the Steller's Eider.
-MOVED SCS HJR 60(RES) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HJR 60 - No previous Senate action.
WITNESS REGISTER
Mr. Scott Petsel
Staff to Representative Gail Phillips
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for sponsor of HJR 60.
Mr. Richard Hannon
U.S. Fish and Wildlife Service
1011 East Tudor Road
Anchorage, AK 99503
POSITION STATEMENT: Explained why the USFWS is proposing to
designate critical habitat for two eider species.
Mr. Wayne Regelin
Division of Wildlife Conservation
Alaska Department of Fish and Game
PO Box 25526
Juneau, AK 99802-5526
POSITION STATEMENT: Supports HJR 60.
Ms. Marilyn Crockett
Alaska Oil and Gas Association
121 W. Fireweed Lane
Anchorage, AK
POSITION STATEMENT: Supports HJR 60.
Mr. Ken Freeman
Resource Development Council for Alaska
121 W Fireweed Lane
Anchorage, AK
POSITION STATEMENT: Supports HJR 60.
Mr. Ken Taylor
Division of Habitat and Restoration
Alaska Department of Fish and Game
PO Box 25526
Juneau, AK 99802-5226
POSITION STATEMENT: Supports HJR 60.
ACTION NARRATIVE
TAPE 00-24, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:35 p.m. Present were Senators Green, Taylor, Pete
Kelly, Mackie, Lincoln and Chairman Halford. The committee took up
HJR 60.
HJR 60-HABITAT FOR ENDANGERED EIDER DUCKS
MR. SCOTT PETSEL, legislative aide to Representative Gail Phillips,
gave the following overview of HJR 60. The House Resources
Committee sponsored HJR 60 at Representative Phillips' request. In
February of 2000, the U.S. Fish and Wildlife Service (USFWS)
published a proposed rule change to designate large areas of
Alaska, more than 75,000 square miles, as critical habitat for
spectacled and steller's eiders. The eiders were listed as
threatened under the Endangered Species Act (ESA) in the early
1990's. At that time, the USFWS did not consider the establishment
of critical habitat areas for the eiders to be prudent because
potential habitat loss was not considered a limiting factor in the
recovery of the species. In September of 1999, the Department of
Interior entered into an agreement to re-evaluate the critical
habitat designations based on a lawsuit by a coalition of
environmental groups. In addition, previous court rulings in
similar cases overturned other USFWS determinations that the
establishment of critical habitat areas was not prudent.
Establishing critical habitat in these areas of Alaska will
adversely affect resource development, subsistence and commercial
fishing. This designation will slow up the federal permitting
process by requiring an additional level of consultation with the
USFWS. This will essentially duplicate the level of protection
already afforded under Section 7 of the ESA and allow an additional
opportunity for filing a third party lawsuit to halt, slow, or
discourage development and investment in these regions.
Additionally, certain federal permit applications that meet Section
7 requirements are simply not allowable by law in critical habitat
designated areas. HJR 60 resolves that the Legislature oppose the
designation and asks Governor Knowles to pursue legal action
against the USFWS if the regulations are adopted. It also urges
the Alaska delegation and Congress to assist in blocking the
adoption of the final regulations. He asked committee members to
support the resolution.
Number 282
MR. RICHARD HANNON, Chief of Fisheries and Ecological Services,
USFWS, gave the following testimony. The spectacled eider was
listed as threatened under the ESA in 1993, and the steller's eider
was listed in 1997. In both cases, the USFWS determined that it
was not prudent to designate critical habitats because it could
find no benefit in doing so. In March of 1999, the USFWS was sued
by the Southwest Center for Biological Diversity and by Christians
Caring for Creation, two environmental groups, for its failure to
designate critical habitat for five California species and the two
Alaskan species. In general, the USFWS has found that designating
critical habitat is not beneficial to listed species and so far it
has designated critical habitat for only 116 of the 1,206 species
listed. Increasingly, however, environmental groups are suing the
USFWS for not designating critical habitat. The courts in every
case have determined that the USFWS has an affirmative
responsibility to designate critical habitat for listed species
under the ESA. In the future it will be the rule, rather than an
exception, to designate critical habitat.
SENATOR GREEN asked if the courts have decided that critical
habitat should be designated in all but exceptional circumstances.
MR. HANNON replied the courts have consistently directed the USFWS
to designate critical habitat. The USFWS has consistently lost
critical habitat lawsuits, even when it suggested that the
designation of critical habitat would have little or no benefit to
listed species. As a result of the USFWS's litigation history, it
now acknowledges that there is some potential benefit in
designating critical habitat. In addition, a large segment of the
American public lives in cities and does not make the connection
that a species needs a healthy habitat to survive. The designation
of critical habitat clearly sends a message that a species cannot
survive without a healthy habitat.
MR. HANNON indicated that, to date, the USFWS has either been
ordered to designate critical habitat or has entered into
settlement agreements in which it designated critical habitat areas
for 264 species. It has agreed in declarations to propose critical
habitat for an additional 18 species. Currently, 28 active
lawsuits have been filed against the USFWS for its failure to
designate critical habitat for 301 additional species. The
environmental community is saying that, at the time of listing, the
USFWS should designate critical habitat. The courts have agreed.
The USFWS will designate critical habitat as a matter of course
when it lists species in the future.
Number 535
SENATOR GREEN asked whether Congress has considered taking action
to lessen the potential for these types of lawsuits.
MR. HANNON answered he is not aware of any actions that Congress
has taken to limit the citizens' right to sue the federal
government under the ESA. The USFWS has supported legislative
changes regarding the way critical habitat should be designated but
numerous attempts to reauthorize the ESA have failed.
MR. HANNON continued his testimony. In September of 1999, the
USFWS entered into a settlement agreement with the plaintiffs to
re-evaluate critical habitat designations. It agreed to finalize
any proposals to designate critical habitat for the spectacled
eider by February 1, 2000 and for the steller's eider by March 1,
2000. If the USFWS determined that such a designation was prudent,
it would finalize those designations by December 1, 2000 and
January 5, 2001, respectively. On February 8, the proposal to
designate critical habitat for the spectacled eider was published.
MR. HANNON referred to a map of the critical habitat area and
publications prepared by the USFWS entitled "Proposed Critical
Habitat for the Steller's Eider in Alaska" and "Proposed Critical
Habitat for the Spectacled Eider in Alaska." He reviewed briefing
papers in both reports that cover the nesting, molting and
wintering patterns and habitat of both species in Alaska. He
commented that the area is enormous and that this designation is
the first in Alaska by the USFWS. Because of the lawsuits, the
USFWS is changing the way it does business in regard to critical
habitat.
CHAIRMAN HALFORD asked Mr. Hannon to specify what this designation
will mean in regard to open federal land, federal land in a
restricted category, state tidal and submerged lands, and other
state and private lands. He pointed out that the designation will
obviously not have as much of an impact on a federal wildlife
refuge as it will on private land.
MR. HANNON agreed. He explained that the critical habitat
designation does not create a park, a preserve or a refuge. It does
not change or limit the rights of private citizens, Native
landowners or the State of Alaska. The designation does not allow
the federal government to access any of these lands without prior
approval. The designation emphasizes that all species require
healthy habitats upon which to live and that they cannot survive
without it. The only regulatory impact of a critical habitat
designation is that federal agencies must ensure when they fund,
undertake, or authorize an activity within a designated critical
habitat that the project does not destroy or adversely modify
critical habitat or that the project does not jeopardize the
continued existence of a listed species.
MR. HANNON clarified that the designation of the steller's and
spectacled eiders' critical habitat means that the U.S. Corps of
Engineers, the U.S. Forest Service, the Bureau of Land Management,
or any other federal agency that undertakes or authorizes a project
within the habitat must consider how the action will affect the two
species. It does not mean that the project must stop, it means
that, under Section 7 of the ESA, the USFWS must review the
projects and their impacts. The USFWS will make a determination
about whether those projects will jeopardize the continued
existence of the listed species.
MR. HANNON pointed out that since these two species have been
listed, the USFWS has reviewed about 100 projects that might impact
either the steller's or spectacled eiders. The USFWS found that
the impact of the projects did not rise to a level that would
jeopardize the two species. Even without designation of critical
habitat, the USFWS has the affirmative responsibility to make sure
that projects do not jeopardize species. This designation will not
result in additional layers of protection placed on federal land.
If the USFWS undertakes an activity on the Yukon Delta National
Wildlife Refuge, it will have to consider the impacts of that
activity on the two eider species. It will also have to determine
whether the activity will compromise the species' habitat to a
point where the species will no longer be able to use it. For
example, the private landowner who is planning an activity on
private land will not need a permit from the federal government if
no federal money is involved. But, under current law, a private
landowner who is planning a housing project in Barrow with federal
funding has to consider the impact on the species because it was
listed as threatened under the ESA. A USFWS determination will have
to be made as to whether or not that housing project will adversely
modify or render the entire critical habitat area unusable by the
two species. The USFWS does not believe it is likely that it would
determine that the use of those five acres will destroy or
compromise an entire critical habitat area.
Number 1440
SENATOR TAYLOR asked if the USFWS has to take into account the
cumulative effect.
MR. HANNON said yes, but the USFWS has to do that anyway because
the species is listed. In the 200 times the USFWS has had to make
such determinations, it has never determined that an activity would
jeopardize a species.
SENATOR TAYLOR asked Mr. Hannon to discuss the impacts of drilling
on the National Petroleum Reserve.
MR. HANNON explained that first the USFWS would have to look at the
direct and indirect effects of the infrastructure associated with
the installation of the drilling pad on the ducks. The USFWS must
look at the species and its habitat because the two cannot be
separated. The USFWS has reviewed several projects on the North
Slope and determined that the impacts would not jeopardize the
species.
MR. HANNON informed committee members that the USFWS's public
comment period was originally scheduled to close at the end of May,
but two entities have requested an extension. As a result, a
notice that the comment period will be extended to June 30 should
be published in the Federal Register next week. The USFWS has held
meetings in Toksook Bay, Chevak, Barrow, and Nome and meetings have
been requested by five communities on the North Slope, which will
be scheduled. If other communities request hearings, the USFWS
will accommodate as many as possible. During this comment period,
the USFWS is looking for information about the duck, its habitat,
and the species' distribution that can be considered. The USFWS
has not had many dealings with critical habitat in Alaska, nor have
many other people. There is a misconception that this is a federal
lockup of land - that is not the case. Most of the prohibitions
that come under the ESA are precipitated by the listing of a
species. The analysis for looking at whether critical habitat is
adversely modified or destroyed is really duplicative of the
analysis that must occur anyway to determine whether an activity
will jeopardize the species.
CHAIRMAN HALFORD asked what the primary causes of the natural
mortality of the two species are. He clarified that he was
speaking about mortality on a year-to-year basis rather than over
the long term.
MR. HANNON answered in the past both species were hunted for sport
and subsistence.
CHAIRMAN HALFORD asked if they are still being hunted.
MR. HANNON replied not since 1991.
CHAIRMAN HALFORD asked if any eggs are taken.
MR. HANNON said the USFWS believes that some egg take is going on,
but for the most part the USFWS is getting tremendous cooperation
from the Native villages and people are not taking the eggs.
CHAIRMAN HALFORD asked what is causing the mortality on a year-to-
year basis.
MR. HANNON answered it is from predation, weather and climatic
factors, and a whole host of things that can affect the survival of
all waterfowl.
CHAIRMAN HALFORD asked whether the USFWS is sure that all other
factors are under maximum positive control before it applies this
rule, which says that 30 acres must be set aside for every nest.
MR. HANNON said he did not understand.
CHAIRMAN HALFORD said he calculated a radius of 656 feet so the
area would equal 30.07 acres per nest. He said he is concerned
that the USFWS has done everything else in terms of limiting damage
to the species before it sets aside that land.
MR. HANNON said that the USFWS identified some causes for the
decline of both species when they were listed. With respect to
the spectacled eider, the USFWS identified a 96 percent decline in
the Y-K Delta population from the 1970's to the 1990's based upon
waterfowl surveys.
CHAIRMAN HALFORD asked if any recovery has occurred since the two
species were listed.
MR. HANNON stated he is not sure whether the USFWS has seen much of
an increase at all.
SENATOR TAYLOR referred to the USFWS briefing paper and read,
Between the '70s and the '90s, spectacled eiders on the
Y-K Delta declined by 96 percent, from 48,000 pairs to
fewer than 2,500 pairs in 1992. Based upon surveys
conducted during the past few years, the Y-K Delta
breeding population is estimated to be about 4,000 pairs.
He said that amounts to almost a 100 percent increase in the last
eight years.
MR. HANNON agreed it has increased.
SENATOR TAYLOR continued to read, "The most recent population
estimate on the North Slope is currently 9,488 (plus or minus 1,814
birds). North Slope eiders have no clear population trend."
MR. HANNON explained the USFWS does not have the same baseline data
for the North Slope.
SENATOR TAYLOR indicated the trend on the Y-K Delta shows a
dramatic increase. He asked what a normal rate of increase on that
population would be.
MR. HANNON was not sure.
Number 1790
SENATOR TAYLOR surmised that the USFWS did not know what the
populations were 30, 50, or 100 years ago.
MR. HANNON said that is correct and explained that the USFWS has
anecdotal information that suggests that both species were much
more common than they are today. He noted there is no data to say
there has been a 20 or 50 percent decline or increase on the North
Slope.
CHAIRMAN HALFORD asked if these species are protected throughout
the entire system.
MR. HANNON said they are.
SENATOR TAYLOR pointed out they are only protected on a section of
Alaska and that their larger current breeding range is in Russia.
He asked what is being done to stop the Russians from hurting the
eiders.
MR. HANNON replied the spectacled eider is listed as threatened
throughout its range, which means wherever it exists, and that
includes Russia. Data on the Russian population shows it has been
very stable to increasing. With the break-up of the Soviet Union,
the USFWS has received reports about increased hunting, so it is in
the process of trying to find out to what extent the eiders are
being hunted. In the case of the steller's eider, the Alaska
population is the only population listed under the ESA.
SENATOR TAYLOR asked how large that population is.
MR. HANNON said it is fairly large.
SENATOR TAYLOR noted about three-quarters of the snow goose
population that travels down the West Coast flyway actually nests
in islands in Russia, such as Wrangell Island. He noted that when
the Russians put cows on that island, the foxes decimated that
population. He asked if snow geese are listed as endangered.
MR. HANNON offered to find out.
SENATOR TAYLOR noted that the briefing paper contains assumptions
about predation and other causes for population loss, such as lead
poisoning caused by eiders eating lead shot, which was documented
on the Y-K Delta. He said he finds it hard to believe the USFWS
found many of those cases because it would take thousands of
hunters to shoot enough shot for 9,000 birds to find.
MR. HANNON clarified that it is illegal to hunt with lead shot. He
noted it was used for many years to hunt waterfowl and that lead
shot gets deposited in the wetlands. Many wetlands in Alaska are
underlaid by permafrost so the lead does not sink and remains in
the zone where the ducks can ingest it. In studies done on the Y-K
Delta, the USFWS found that up to 60 percent of ducklings have
elevated levels of lead in their blood. He repeated that the
decision to list these birds was made some time ago. That decision
is not being revisited now; the issue is whether and which critical
habitat is appropriate to conserve these birds. There is no
smoking gun that can explain why these populations have declined.
The USFWS believes lead shot is a possibility as well as increased
predation because as some of the goose populations have declined,
the predators are moving and looking at other prey to eat. Also,
the waste management practices in some of the communities in these
areas allow a larger number of species to survive through the
winter, which results in increased predation. Global warming and
climate change may be affecting these species. The USFWS plans to
do the best it can to recover the species, but it cannot control
all the variables. He believes that if he were to be invited back
to speak to the committee three years from now about what this
designation has done, he would have to say the USFWS has found no
perceptible change. The USFWS will continue to do business the way
it always has, and the determination of whether or not an action
will jeopardize a species will continue to be made. If the USFWS
finds that a project will jeopardize the species, it will probably
also find that the project will affect the habitat as well. Right
now this is new to the USFWS. The allegation that this designation
is a federal land grab is not true.
Number 2101
SENATOR TAYLOR asked why the USFWS did not let the lawsuit filed by
Christians Caring for Creation go to court.
MR. HANNON replied the USFWS has been sued on many occasions about
critical habitat. The USFWS determined, at the time most species
were listed, that it was not prudent to designate critical habitat.
It has been through many similar lawsuits and, in every case, the
USFWS lost and was ordered by the courts to designate critical
habitat. The USFWS counsel advised against fighting this case, so
the USFWS settled out of court.
SENATOR TAYLOR asked whether an additional level of permitting will
have to be accomplished if this designation occurs.
Number 2174
MR. HANNON said it will not. He explained that when an activity is
going to be undertaken that involves a federal agency, a
determination is made as to whether the activity will affect the
listed species or its designated critical habitat. The result of
that deliberation is a document called a "biological opinion."
That biological opinion must conclude whether or not it is going to
jeopardize the listed species. With the designation of critical
habitat, a second decision must be made: will the activity
adversely modify or destroy critical habitat? Those two decisions
are made in the same document and there is no additional time for
processing a permit or undertaking this analysis. It is all done
simultaneously.
SENATOR TAYLOR asked how the farmer who was plowing his field in
California that is critical habitat for the kangaroo rat got thrown
in jail.
MR. HANNON replied that case made national news but he is not 100
percent familiar with it. He noted that often the media does not
tell the whole story. He thought it had more to do with the fact
that species were being taken as a result of that activity and not
because it was a critical habitat area. He offered to get the facts
for Senator Taylor.
SENATOR TAYLOR asked Mr. Hannon to do that and said he is also
aware of a man in Louisiana who was thrown in jail for putting a
levy back into place on his farm after a flood. His family
homesteaded the land for a few years, but it was then declared to
be wetlands. He commented that,
It's examples like that - and I could waste the rest of
the afternoon and the evening giving you anecdotal
comments on what I've experienced this year in Alaska on
critical habitat for eel grass, for God's sake - on the
largest coastline in the North American continent - we're
sitting on top of it and the eel grass is very sensitive
to folks like you and they worry about that a lot and so,
as a consequence, I've watched one construction project
after another either get tied up, get screwed up or
somebody has to go buy off a federal bureaucrat or a
state one by paying off to go to some other area to
enhance that area because somebody decided that the aura
of this particular place has now been disrupted.
If you don't think we're paranoid when it comes to you
people up here, you're crazy. We have been fighting
nobody but the - what I refer to as 'eco-bigots' in the
federal government who come up here and want to sanction
this and sanction that. As a consequence, to say the
least, we're paranoid but, you know, even paranoids have
enemies and we know who ours are.
SENATOR GREEN remarked that when she started reading the briefing
paper, she recalled reading the book "Undue Influence: Wealthy
Foundations, Grant-Driven Environmental Groups, and Zealous
Bureaucrats that Control Your Future". She recognized the name of
the Southwest Center for Biological Diversity and its long thread
of rage against nearly every state in the Southwest. The group has
ties back to a group named Earth Firsters who were the forerunners
of the terrorists and who were funded by the Pew Foundation and
some of the charitable trusts. These groups make claims in court
that government agencies are not implementing the laws properly.
TAPE 00-42, SIDE B
SENATOR GREEN commented,
And I had to go get this book to read it, because I want
this to be part of the record. And it goes back to the
spotted owl controversy in the Southwest - then into
California - then Pew is also involved in the nearly
$600,000 investment in the Alaska Conservation Foundation
and the Alaska Coastal Rainforest, which I know Robin
will be interested in. It killed two long term timber
contracts that the U.S. government had begged for to
stabilize the economy there and then it went on into
Arizona, up the West Coast, and then - but the
interesting thing is the restraining order was granted by
U.S. District Judge Paul Rosenblatt - were also brought
by environmentalists Peter Galvin of New Mexico.
Interestingly enough, Galvin is another one of the Earth
Firsters arrested and charged with felony and fined and
then the judge let him off for $1 bail. But, this is the
same guy who's now doing the Southwest Center for
Biological Diversity and I cannot find the cite for the
Christians Caring for Creation or I would also read that,
but there are two other Christian, quote, community
organizations mentioned in here, which - as little as
I've read about this, because I can't stand it because I
can't take enough blood pressure medicine to keep it in
control, are inextricably woven and again, funded by the
same people sitting in either New York, Boston, San
Francisco or Seattle doling out money to organizations in
every state to bring lawsuits against you. So I want that
to be part of the record because it really ticks me off."
MR. HANNON responded that the USFWS does not relish listing
species.
SENATOR GREEN noted that Mr. Hannon does not have to apologize to
her on this issue. She said she agrees that the USFWS is besieged
by people filing lawsuits and that judges in courts will not uphold
the USFWS's decisions. She added the lawsuits are filed by
environmental groups who are funded by wealthy people who have
already made their money and sit on it and fund every local
environmental organization in the State of Alaska.
CHAIRMAN HALFORD asked whether the USFWS is negotiating to purchase
any of the land in the habitat area in an effort to protect these
species.
MR. HANNON said he is not aware of any land acquisition program for
the two species. He said the USFWS did a breakdown of land
ownership within the proposed critical habitat areas and offered to
send the committee copies. Mr. Hannon noted that a large
percentage of the terrestrial landscape, both on the North Slope
and on the Y-K Delta, is in some form of federal ownership.
CHAIRMAN HALFORD thanked Mr. Hannon for his presentation and
testimony.
MR. KEN FREEMAN, Executive Director of the Resource Development
Council (RDC), made the following comments. The RDC strongly
supports HJR 60. The USFWS concedes that neither the spectacled or
steller's eiders are habitat limited in Alaska. These waterfowl
have not suffered due to a shortage of suitable habitat, therefore
the sheer size of the proposed designation is a serious cause of
concern for RDC members. The USFWS's stated reason for designating
critical habitat for these two species is an order to respond to a
lawsuit filed by two environmental organizations. A designation of
this magnitude should be based on sound science and not a legal
compromise. The protections afforded species listed under the ESA
are substantial. Because the spectacled and steller's eiders are
not habitat limited, the designation of critical habitat does
little to significantly increase their protection under the ESA.
Critical habitat can be used as a tool to slow economic development
by individuals or organizations interested in acting as
obstructionists. A few weeks ago, Greenpeace and the Sierra Club
asked a federal judge in Seattle to ban the harvest of pollock and
other bottomfish in areas throughout the Bering Sea and Gulf of
Alaska where critical habitat for stellar sea lions has been
designated. This is exactly the type of situation the RDC would
like to avoid on the North Slope and in western Alaska. RDC
members are committed to the responsible development of Alaska's
natural resources. They believe the protections provided through a
threatened listing are enough to safeguard the welfare of both
species. The designation of more than 80 million acres of critical
habitat goes too far. He offered to answer questions.
MR. WAYNE REGELIN, director of the Division of Wildlife
Conservation, ADFG, stated support for HJR 60. ADFG is in the
process of preparing official comments opposing the proposed
designation. ADFG agreed with the USFWS in 1997 when it concluded
that no conservation benefit would accrue from the designation of
critical habitat for either species of eider. There is no
scientific basis for the ADFG or USFWS to change that position.
The only thing that has changed is lawsuits and a mediation order
that requires the USFWS to reconsider the designation of critical
habitat.
ADFG believes designating millions of acres of Alaska as critical
habitat is not biologically defensible. Information about what
might be critical habitat is lacking but that lack of information
does not justify locking up areas where eiders may never have gone.
Eiders are not a common species and they never have been. There is
no conclusive evidence the populations have been any smaller than
they ever were in Alaska. Most of the populations breed in Russia
and come to Alaska periodically, for the most part staying off of
the coast.
The spectacled eider population has declined in the Y-K Delta but
it appears to be recovering. There is no indication it has ever
declined anywhere else. The only places in Alaska where steller's
eiders occur on a regular basis in substantial numbers are in the
Izembek and Nelson Lagoons during the molt. It is probably
reasonable to consider those two small areas for critical habitat
designation. ADFG believes all of the other areas, especially the
North Slope, should be withdrawn. The spectacled eiders occur in
sizable numbers in Norton Sound and Ledyard Bay during the molt and
in the winter they raft in large groups of up to 80,000, in the
Bering Sea between St. Lawrence and St. Matthews Islands.
MR. REGELIN suggested those areas also be considered for critical
habitat but he was not sure how a designation would occur in the
middle of the ocean. ADFG feels strongly that designating large
parts of Alaska will have a significant economic impact. The USFWS
will have to do Section 7 consultations for every development
project on federal lands in this huge area across the North Slope,
much of it NPRA. The consultations could cause delays. What is of
concern to ADFG is that if the USFWS makes a determination that the
proposed action does not jeopardize the eiders, the USFWS will be
taken to court. When it goes to court, the judge is likely to take
into great consideration the idea that the area has been designated
as critical habitat. HJR 60 may help the USFWS to designate only
areas where it knows what birds have existed in reasonable numbers.
SENATOR TAYLOR asked how sending the resolution to Alaska's
congressional delegation will affect what the USFWS will do.
MR. REGELIN explained that the USFWS has proposed a federal rule
with all of these areas. It has an open comment period underway
and it will be extended until June 30. Once the comment period is
over, the USFWS will finalize actions; Congress does not have to do
anything.
SENATOR TAYLOR said it seems to him that HJR 60 will be sent to the
wrong people - it should be sent to the USFWS as part of the
comments.
MR. REGELIN said he did not write the resolution.
Number 1863
SENATOR LINCOLN noted the resolution contains a clause that speaks
to pursuing legal action once the regulations are adopted and asked
about the timing. Second, she pointed out she has no objection to
HJR 60, but she questioned whether a fiscal note has been included
if the Legislature is asking the Governor to pursue legal action.
CHAIRMAN HALFORD said he did not think the resolution has a fiscal
note.
SENATOR LINCOLN pointed out it has a zero fiscal note.
MR. REGELIN commented that the USFWS would be able to tell the
committee when the public comment period will become final, but he
is still hopeful that the USFWS will change its mind after hearing
ADFG's comments. If it does not, ADFG will probably look at other
alternatives. He believes the USFWS proposal will have a great
economic impact on federal lands outside of refuges and on private
lands. The ESA requires that an economic analysis be done before
the USFWS can designate critical habitat areas and that analysis
has not been done yet. He said he is not sure if that is why the
process has been delayed until June 30.
There being no questions, CHAIRMAN HALFORD took teleconference
testimony.
MS. MARILYN CROCKETT, Assistant Executive Director of the Alaska
Oil and Gas Association (AOGA), made the following comments. There
are a number of activities talked about today, which provide
extensive protection for the eiders in the absence of the critical
habitat designation. First, the private industry has done
extensive research and surveys on its own part prior to
development, especially on the North Slope. Second, the Section 7
consultation does provide a level of protection and answers a
number of questions with regard to protection of species. With
regard to the NPRA area, the environmental impact statement (EIS)
for NPRA designated over 1,000,000 acres in the vicinity of
Teshekpuk Lake as a spectacled eider breeding range land use
emphasis area. The EIS also includes 79 stipulations to address
and minimize the impacts of activities within that area.
Furthermore, from the State of Alaska's standpoint, the best
interest findings for lease sales also contain similar stipulations
and mitigating measures. A whole stack of additional eider habitat
protection mechanisms are currently in place without the
designation of critical habitat. Given all of those factors, it is
questionable what the value would be of a critical habitat
designation.
MS. CROCKETT said AOGA is particularly concerned about two areas.
One, mentioned by Mr. Regelin, is that the USFWS has stated that
the designation of critical habitat will have much impact on
permitting activities however there is no doubt that the regulated
community is just as concerned over the potential for third party
lawsuits when agencies appropriately issue permits within a
critical habitat area. Finally, the USFWS has stated numerous
times that it does not believe there will be any additional
prohibitions as a result of this critical habitat designation.
Over the last several weeks, AOGA has found there were many
permitting programs in place by agencies other than USFWS that
typically prohibit permitting of activities in critical habitat
areas. These prohibitions are sometimes the result of statutory
prohibitions, sometimes they are included in program regulations,
and sometimes they are simply agency policy. These outright
prohibitions are absent the Section 7 consultations. One recent
example is the new Corps of Engineers nationwide general permit
program, which prohibits the use of these permits in critical
habitat areas.
SENATOR TAYLOR asked what portion of NPRA is set aside today as
critical habitat for summer nesting areas for a different waterfowl
species, which prevented the oil industry from drilling in those
areas.
MS. CROCKETT said she did not know but numerous areas within NPRA
have been designated as critical habitat for both steller's and
spectacled eiders. She repeated the one designation she is
familiar with is the 1,000,000 acres within the Teshekpuk Lake
area.
SENATOR TAYLOR asked if the Teshekpuk Lake critical habitat area is
for spectacled eiders.
MS. CROCKETT said it is.
SENATOR TAYLOR said Mr. Regelin thought it was for brant geese. He
thought it might be a joint nesting area.
Number 1572
MR. KEN TAYLOR, Director of the Habitat and Restoration Division of
ADF&G, said if he could find any benefit in this proposed critical
habitat area he would be testifying in support of the USFWS
decision but he believes it will not be beneficial and it will be
detrimental for the reasons Ms. Crockett testified to. This
affects more than just federal lands; it affects all federal
permits for activities on federal, state, or private lands. This
will result in the public's ability to file suit not only under the
ESA, in which the plaintiff would have to prove that use of five
acres is affecting an entire habitat area, but also under the
critical habitat status, which says that the five acre pad has
affected five acres of critical habitat, which will be much easier.
Those lawsuits involve a lot of ADF&G staff time and he does not
want his staff chasing frivolous lawsuits at the expense of good,
sound conservation practices.
Number 1418
SENATOR TAYLOR, acting as Chair, announced there was no further
testimony and that as soon as a quorum was present, the committee
would take action on HJR 60.
SENATOR LINCOLN asked Mr. Hannon to explain how he sees this issue
panning out between now and when the decision is made.
MR. HANNON explained that the final decision according to the
settlement agreement will have to be made on spectacled eiders by
December 1 of this year and for steller's eiders by January 5 of
2001. That is when the USFWS has committed to making a final
decision. As stated earlier, the USFWS is in the process of
extending the comment period through June 30. Public hearings will
be held as requested. The USFWS is required to do an economic
analysis as to what economic effects the designation of critical
habitat will have incrementally. Once it is developed, a notice of
availability will be published in the federal register and the
public will have 30 days to comment. Once all comments are
received, the USFWS will do an analysis of that information and it
will make a final determination by the dates mentioned.
SENATOR LINCOLN asked whether the USFWS is accepting written
comments from the public or whether it is taking comments from
people who reside in the area.
MR. HANNON said the USFWS will accept any comments, written or
oral. So far, five communities on the North Slope have requested
public meetings. The USFWS is in the process of working with the
communities to identify suitable dates. The USFWS is trying to
schedule the meeting outside of the whaling season. Up until now,
no other communities in the State have asked for a public hearing
but the USFWS is open to doing so.
SENATOR TAYLOR moved to conceptually amend HJR 60 as follows:
beginning on line 27, following the word "Eider" insert
"and be it FURTHER RESOLVED that the Alaska State Legislature
urges the United States Fish and Wildlife Service to adopt
final regulations that create no new critical habitat for
eiders in Alaska."
There being no objection, CHAIRMAN HALFORD noted that amendment
would be incorporated into the Senate Resources CS.
SENATOR LINCOLN said she was interested in Senator Taylor's comment
that it may be a good idea to send copies of the resolution beyond
the list of Alaska's congressional delegation. She suggested
amending the resolution to add names.
SENATOR TAYLOR said he assumed a copy would be sent to the USFWS.
CHAIRMAN HALFORD noted that will be a conforming portion of Senator
Taylor's original amendment to the CS.
SENATOR TAYLOR moved SCS HJR 60(RES) from committee with individual
recommendations. There being no objection, the motion carried.
There being no further business to come before the committee,
CHAIRMAN HALFORD adjourned the meeting at 4:45 p.m.
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