02/15/2016 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Board of Game | |
| SB163 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 163 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 15, 2016
3:30 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator Mia Costello, Vice Chair
Senator John Coghill
Senator Peter Micciche
Senator Bert Stedman
Senator Bill Stoltze
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING
Board of Game
Guy Trimmingham
- CONFIRMATION ADVANCED
SENATE BILL NO. 163
"An Act relating to the nomination and designation of state
water as outstanding national resource water; and providing for
an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 163
SHORT TITLE: NATL. RES. WATER NOMINATION/DESIGNATION
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/29/16 (S) READ THE FIRST TIME - REFERRALS
01/29/16 (S) RES, FIN
02/15/16 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
GUY TRIMMINGHAM
Hope, Alaska
POSITION STATEMENT: Board of Game (BOG) nominee.
JOHN HOZEY, Director
Boards and Commissions
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: Commented on SB 163.
MICHELLE HALE, Director
Division of Water
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Commented on SB 163.
ACTION NARRATIVE
3:30:35 PM
CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Coghill, Wielechowski, Costello, Stoltze,
and Chair Giessel.
^Confirmation Hearing: Board of Game
Confirmation Hearing: Board of Game
3:30:59 PM
CHAIR GIESSEL announced the Board of Game confirmation hearing
for Guy Trimmingham. She asked Mr. Trimmingham to explain why he
seeks this position and what qualifies him for it.
3:31:12 PM
GUY TRIMMINGHAM, Hope, Alaska, Board of Game Nominee,
said he is well suited for this board appointment, because of
his life-long background in guiding in Alaska and his
subsistence-type life style. He also lives in a tourism
community where non-consumptive users are very important to its
income. He thought this background gave him a balanced
perspective.
CHAIR GIESSEL asked how long he had lived in Alaska.
MR. TRIMMINGHAM answered that he was born and raised here and he
is 62 years old.
SENATOR WIELECHOWSKI asked why he answered "no" to being willing
to provide full disclosure of personal financial data on his
disclosure document.
MR. TRIMMINGHAM answered that was a mistake; he has no reason to
not file all of his financial data.
SENATOR STOLTZE asked his thoughts on intensive game management
for abundance.
3:33:43 PM
SENATOR MICCICHE joined the meeting.
MR. TRIMMINGHAM answered other than intensive management being
the law, without the intensive management strategy primarily for
two major predator species, wolves and black bear, the state
cannot hope to develop any type of a consumptive population for
moose, sheep, goats, and caribou. On the other hand, intensive
management is going to have to address both habitat and the user
groups that are going to be harvesting the game. Title 16 is a
many faceted problem with no easy answers. Intensive management
is necessary and done correctly, it has proven to be very
productive in producing more ungulates for both consumptive and
non-consumptive users.
SENATOR STOLTZE asked for a couple of examples of how an
intensive management decision would manifest in providing a
greater opportunity for consumptive use. What could create a
better balance for non-consumptive use?
MR. TRIMMINGHAM answered that wolves are very efficient, for
instance. There are many cases on the Alaska Peninsula where
caribou herds have been devastated by wolves down to almost
three-digit numbers. With a little bit of wolf management, the
herds have been coming back rapidly and calf survival rate is up
tremendously. Local communities have been able to utilize the
local caribou for livelihood and subsistence purposes.
He said that intensive management has also been effective with
black bear populations to increase moose numbers around certain
villages.
SENATOR STOLTZE thanked him for that very good example of
providing for consumptive use and asked how he would make a
different decision or philosophical change to provide for non-
consumptive use.
MR. TRIMMINGHAM responded that non-consumptive users bring a
tremendous amount of money into the state economy. Tourism is
one of the state's greatest assets. Part of that is being able
to view Dall sheep, moose, goats, bears, and some wolves.
Wildlife viewing is a major part of the state's income that is
also renewable and that is another very good reason to keep
population numbers up.
SENATOR STOLTZE asked what other decisions he would make as a
member of the Board of Game (BOG) that haven't been made.
3:37:30 PM
SENATOR STEDMAN joined the committee.
MR. TRIMMINGHAM answered that no one individual is going to
control the board. He would use available current science and
work with individual and other board members towards a common
agreement that non-consumptive uses are just as important as
consumptive uses. He didn't see any particular item that he
could bring to the board that would sway it unequivocally in his
favor at all times, but he can make a very good argument by
using science for non-consumptive use across the board.
SENATOR COSTELLO asked Mr. Trimmingham to explain his
understanding of managing Alaska's resources for maximum
sustainable yield and if he thought the board and department had
done a good job of it.
MR. TRIMMINGHAM answered that given the board's resources, it
had done a tremendous job. Financial constraints are always an
issue for gaining the science that is needed to make good
decisions. With the right resources at their disposal, the
board can make reasonable and intelligent decisions for all user
groups in Alaska.
SENATOR COSTELLO asked him to describe what he sees as the
biggest challenges facing the board.
MR. TRIMMINGHAM replied that one of the biggest challenges is
subsistence pressure on a relatively limited amount of
resources. Any number of documents can show that the quality of
hunts and number of game available for subsistence and other
hunts is very limited. The Alaska environment is not conducive
to tremendous pressure, because plants don't grow like they do
in some other places of the U.S. where multiple species of game
can live. Everything in Alaska eats its own separate part of the
habitat. The board can make very good decisions on consumptive
and non-consumptive uses with the science it has.
SENATOR COSTELLO asked why he is interested in serving on the
board.
MR. TRIMMINGHAM answered that he had spent his entire life
living in the small community of Hope where his backyard is the
outdoors. He hunts and fishes and has been a guide. He currently
works in the oil industry. Basically, he has a broad and diverse
range of information in those areas. He is not partisan to any
one group and can represent everybody adequately. He is also at
the right point in his life to do that.
SENATOR COGHILL thanked him for being available to serve on the
board. He asked Mr. Trimmingham if he had ever worked with an
Advisory Committee that went to the Board of Game for anything.
MR. TRIMMINGHAM answered no, but several years ago he sat
through several sessions of the Subsistence Fisheries Board
meetings in Soldotna.
SENATOR COGHILL said one of the issues in his Fairbanks Interior
area is the tension between the Board of Game and the Advisory
Committees on antlerless moose hunts and asked Mr. Trimmingham
if he had any reservations or philosophical views on antlerless
moose hunts.
MR. TRIMMINGHAM answered he has no philosophical view about it
at all, but it would be foolish to take what amounts to hundreds
of years of experience scattered across the state, and toss it
out the window when it is so valuable for making wise decisions.
Science takes you only so far; one still need eyes on the
ground.
SENATOR COGHILL said he appreciated that, because it seems like
it's a struggle to get it right in his area where moose hunts
and access are the biggest issues. Advisory committees have some
of the best access to information, but it's also true that two
advisory committees right next to each other can have very
different views.
3:44:45 PM
SENATOR MICCICHE thanked him for going through the confirmation
process. He said when it comes to the results of active
management, certain non-consumptive users don't even believe in
any active management, and asked if he agrees that active
management in the form of predator control is necessary in
certain cases.
MR. TRIMMINGHAM answered absolutely. He said Alaska is in a
unique time with climate change. Southcentral is not getting
cold dry winters anymore and that affects many of the game
populations. Diseases never seen in Alaska are being introduced.
Habitat is changing and active management must be used on
predators to maintain some level of use for people of Alaska or
people of the U.S. who come up to visit. The habitat-carrying
capacity of an area is one of the primary limiting factors that
needs to be addressed.
3:46:56 PM
CHAIR GIESSEL asked Mr. Trimmingham's thoughts on the buffer
zones that exist around federal land units and the occasional
suggestion that they be expanded.
MR. TRIMMINGHAM answered of the people who live along those
buffer zones, some really like the fact that they live in an
area where there is no hunting next door and others actually
utilize hunting and trapping and think it's wonderful. He didn't
know where the limit is for those buffer zones. As a science-
based question it would be more in tune with what type of
connecting habitat is needed for game species to move from one
area to another.
CHAIR GIESSEL asked his opinion on the U.S. Park Service's
adopted changes and the U.S. Fish and Wildlife Service (FWS)
regulations. Are they policies by the federal government that
overreach?
MR. TRIMMINGHAM answered that the last time he checked everyone
is playing on the same ballfield. "We may have different names,
but we're still part of the same government." It's a platform
that deserves an open discussion to see if consensus can be
reached.
3:49:15 PM
SENATOR STOLTZE asked Mr. Trimmingham to elaborate on why he
said he wouldn't to be able to swing the rest of the board in
his favor and what positions or agendas is he in the minority
on.
MR. TRIMMINGHAM replied that being "the newest guy in town," it
will take him time to build credibility with the other board
members to where they trust his judgement and he trusts theirs.
SENATOR STOLTZE said knowing the members, he thought that the
differences will arise not from backgrounds but from positions
he will take.
MR. TRIMMINGHAM said he has a lot of passion about some of the
current proposals. Sheep hunting is one on which he will bring a
tremendous amount of knowledge to the board. He has strong
feelings about guiding. But the dropping population of sheep is
of concern.
SENATOR STOLTZE asked if he had followed board activities and
past board members.
MR. TRIMMINGHAM said he had followed Ron Somerville and Ted
Spraker.
SENATOR STOLTZE asked if he were to look at past board members,
is he closer to Doug Pope or Ted Spraker.
MR. TRIMMINGHAM answered that he is closer to Ted Spraker,
because Mr. Spraker is a scientist at heart. But he also loves
living at the base of his mountain and watching his goats every
day, so he sees a little bit of himself in both.
3:54:39 PM
SENATOR MICCICHE asked, with the Sturgeon case in mind, how he
felt about some of the controlled use area tools and how
interaction would take place between federal and state areas.
Did he believe in limiting access as a control mechanism for
off-road vehicles and horses, the sort of access that may
eliminate access for certain users?
MR. TRIMMINGHAM answered that a controlled use area is just
that: you control its use for different user groups. Some
bicyclers don't like seeing horse poop on the trail. Alaska is a
big state and he thinks that using controlled use areas is a
very viable solution to provide different user groups the
experience they want and desire and that is their right.
SENATOR MICCICHE referenced the Sturgeon case that is currently
in the Supreme Court and asked he see his role on managing
wildlife in areas that are adjacent to federal lands.
MR. TRIMMINGHAM answered that the Board of Game is tasked with
managing the state's resources and all federal lands still fall
within the state, although they haven't turned over everything
that the state is owed. He hadn't followed the case closely,
and he would leave who controls the buffer areas around national
parks up to the courts.
CHAIR GIESSEL opened public testimony and finding no comments
closed public testimony.
SENATOR STOLTZE asked what the governor is seeking with this
appointment.
CHAIR GIESSEL invited the Boards and Commissions representative
to the table.
3:59:18 PM
JOHN HOZEY, Director, Boards and Commissions, Office of the
Governor, Juneau, Alaska, responded that the governor was trying
to be responsive to a number of inputs he had received. One of
them is consideration of someone who could bring a balance to
consumptive versus non-consumptive use issues. A number of
people were suggested that didn't strike the best balance and
that weighed heavily in the decision process and follow up of
individuals for this particular seat. In the end, the governor
felt that Mr. Trimmingham represented a healthy balance between
the two.
SENATOR STOLTZE said it is helpful having the administration's
view on the record.
CHAIR GIESSEL, finding no further questions for Mr. Trimmingham,
said in accordance with AS 39.05.080, the Resources Committee
reviewed the following and recommends the appointments be
forwarded to a joint session for consideration: Board of Game,
Guy Trimmingham, Hope, appointed 7/1/2016; term expires
6/30/2019. This does not reflect an intent by any of the members
to vote for or against the confirmation of the individuals
during any further sessions.
She added that Boards and Commissions should update his
application as Senator Wielechowski had identified an error on
it.
4:01:55 PM
At ease
SB 163-NATL. RES. WATER NOMINATION/DESIGNATION
4:03:28 PM
CHAIR GIESSEL called the meeting back to order and announced
consideration of SB 163, a bill proposed by the administration
related to water reservations.
MICHELLE HALE, Director, Division of Water, Department of
Environmental Conservation (DEC), Juneau, Alaska, said SB 163
does two things. It makes it clear that only the legislature has
the authority to designate what is known as an Outstanding
National Resource Waters (ONRW) in the State of Alaska.
Secondly, it describes the process that will be used to collect
nominations for those waters and additional information, and
then forward those for consideration to the legislature.
She explained that ONRWs receive the maximum level of protection
under the federal Clean Water Act (CWA) that requires states to
have two things: an anti-degradation policy and anti-degradation
implementation methods. The State of Alaska has had an anti-
degradation policy on the books since 1997. Its draft anti-
degradation implementation methods were developed in 2010. Those
are required by the implementing regulations of the CWA, but in
part, the state also developed those because it was sued for not
having them.
MS. HALE said the department had gone through a process to
develop implementation methods in regulation and those were
publically noticed in 2014. Due to the volume of comments
received on those regulations, they went back out for further
public meetings in 2015.
One element of those regulations is the requirement for a method
to nominate and designate Tier 3 waters. She reiterated that
Outstanding National Resource Waters are waters that receive the
highest level of protection under the CWA. Once a designation of
a Tier 3 or ONRW is made, no additional pollutants can be added
to those waters, except for limited or temporary degradation.
Limited or temporary might be construction storm water that is
generated when someone is building a lodge on a river that
received that designation.
MS. HALE said the real crux of the ONRW issue is that no
permanent additional pollutants can be added to those waters,
which means, for example, if there is a town on a river that
becomes an ONRW and they discharge waste water into the river,
they can continue to discharge waste water, but if the town
grows, the discharge can't be increased. A seafood processor on
that river would not be able to start seafood processing if they
discharge waste into the river. Similarly, mining operations on
the river or on tributaries to the river would not be able to
discharge waste water into that river if it increased the
pollutant load at all. So, the designation of an ONRW, in a
sense, almost becomes a defacto land use decision.
MS. HALE said the requirement of the CWA is not that states
designate ONRWs, but just that they have a process for doing so.
That is what she is here today to talk about. This bill says
simply that the legislature will make that designation, not the
agency.
During the regulatory process when they were working on draft
regulations, in addition to receiving a lot of comments on the
regulations, one thing was revealed as somewhat of an ambiguity
in terms of who has the authority to make that designation. In
looking at the Constitution, it appears that the legislature
makes land use designations. AS 46.03.080 gives the agency the
authority to make water quality standards decisions including
water classifications. Because of that potential ambiguity, they
believe it is very important to make it very clear that it is
the legislature, and the legislature alone, that will make that
designation.
In addition, the legislature has a much broader authority to do
far more than just Tier 3 designations; it can create special
management areas and state parks. If DEC were to make that
designation, they would make the Tier 3 designation but not have
the ability to do other things. DEC does have the ability to
make sure that water quality is maintained through applying
water quality standards to discharge permits.
4:09:40 PM
She said that DEC has received ONRW application for three
different waters in the State of the Alaska: one is the Chilkat
River near Haines, another is the Koktuli River west of Lake
Iliamna, and the other is the entire Bristol Bay Watershed. The
department is not acting on those right now because of the
ambiguity in authority, but a process is required at some point
for designating those whether they are designated or not.
4:10:15 PM
SENATOR WIELECHOWSKI asked if the language the department was
relying on was Article 8 of the Constitution, Section 7, Special
Purpose Sites.
MS. HALE answered yes, along with Section 2.
SENATOR WIELECHOWSKI asked if she had an opinion from the
department's attorneys.
MS. HALE answered that they don't have a formal opinion, but
bits of different opinions from different attorneys that have
viewed this.
SENATOR WIELECHOWSKI said he thought this issue hinges on the
question of whose authority it is, is it the legislature's, or
the DEC's. It would be a good idea to get a final decision on
what that is.
CHAIR GIESSEL said they will follow up on that.
SENATOR STEDMAN remarked that if something as broad as the
Bristol Bay Watershed or the watershed of Southeast Alaska is
designated ONRW one could virtually shut down the entire state.
MS. HALE responded that there are broad implications to an
actual designation. The concern is not just the water bodies
themselves, but the tributaries to those water bodies. The
C.F.R. reads that the water quality in a Tier 3 or ONRW must be
maintained and protected. So, if there was an activity on a
tributary that then impacted the water that becomes designated
so that it's not maintained, then that activity would also not
be allowed.
4:13:23 PM
SENATOR STEDMAN said the Chena River in Fairbanks, as an
example, has some fish in it and a hatchery. If it had that
particular designation, would that designation flow all the way
down to the ocean?
MS. HALE answered that it is possible to nominate and designate
segments of waters, and he didn't think that just because a
segment of a river is nominated that the nomination would then
flow downstream. Of more concern would be the upriver activities
that might result in the water quality in that segment not being
maintained and protected.
SENATOR STEDMAN asked her how this designation would be removed
by whoever has final authority.
MS. HALE replied that Code of Federal Regulations (C.F.R.) Part
131.12 that talks about the necessity of having a process for
designating these waters does not describe any process for
removing a designation, and she couldn't find an example of one.
The idea is that this is a permanent designation. She hadn't
found any court cases where somebody tried to remove the
designation. She emphasized that they are not talking about
actually doing designations; the requirement is to have a
process for designating.
SENATOR MICCICHE said he had just read through AS 46.03.080 that
talks about the department having the authority to classify
waters, and asked if he misunderstood something in her initial
statement about the statute.
MS. HALE answered the department has always read that segment of
its statutory authority as having the ability to classify
waters, which they do under water quality standards. They do not
believe the intent when that statute was passed was to actually
classify them in terms of an ONRW.
SENATOR MICCICHE said he didn't look at the legislative intent
and asked if the department thinks there is a bar it couldn't
reach and suddenly the responsibility shifted to the
legislature.
MS. HALE answered the DEC has never read that statute to mean it
would be able to designate ONRWs. They have read it to mean that
the department can set water quality standards, which it does,
and can classify waters, which it does through a regulatory
process. By "classifying waters" she means classifying a water
for a certain use, for example, this water can be used for
drinking and swimming, and not doing this designation of ONRW.
That was pointed out and that is where lies part of the
ambiguity. Draft regulations that were publically noticed in
2014 culminated with the legislature actually making the
designations. So, even at that time the agency wasn't proposing
to make that designation.
4:18:05 PM
SENATOR STOLTZE asked if any vendors had been consulted in
developing this legislation and if they have an opinion.
MS. HALE answered yes; they have been doing considerable
outreach to affected industries and to some of the NGOs that
have a lot of interest in the subject, and it's fair to say that
some are very supportive of this and others think the bill needs
more clarification. Of the environmental NGOs, while some are
worried about the legislature being the body that makes the
designations, others are very pleased to see the transparency
and the public process that would be involved.
SENATOR STOLTZE said he has tried to get the normal up or down
response from industry, but he was just getting a lot of
caution, "an amber alert."
4:20:01 PM
MS. HALE responded that the department has done outreach and had
some conversations "wondering if we should add more clarifying
language to the legislation" and it is working with those
members of industry now.
SENATOR COGHILL said it looks like she is talking about the
state's authority on national parks, wildlife refuges, and water
that are protected and how they would be nominated under this
C.F.R. It really becomes a land use decision, which properly
should involve the legislature. He asked if DNR's Division of
Mining, Land and Water has had any input.
4:22:20 PM
MS. HALE answered that DEC had been communicating quite a lot
with DNR, because one of the questions that has arisen is if
water rights are being considered when they look at this
possible designation.
SENATOR COGHILL said they should get DNR's perspective and that
maybe this is a co-management issue. He didn't understand the
criteria for the designation part, but it could be one of the
key elements of that issue, and all managers should be a part of
it.
MS. HALE agreed that the criteria for ONRW designation are very
broad and if an attempt is made to define what they are, it
would be very hard to satisfy all the possibilities. One of the
things the bill does in the definition of an ONRW is says water
that "the legislature decides is important, unique, or
ecologically significant."
She said Washington, Oregon, Idaho, and Nevada have not
designated any ONRWs; Montana has designated all waters in
national parks as ONRW. California has two ONRWs: Lake Tahoe and
Mono Lake (an alkaline hypersaline lake in a closed basin). So,
in talking about criteria, one can't mention high water quality
for example, because Mono Lake is very saline. It doesn't really
meet any kind of easy criteria for defining. That is one reason
the criteria are kept quite broad and language gives the
legislature the authority to actually make that decision.
SENATOR COGHILL said he was concerned the department will come
to the legislature and say you have to do this because federal
law requires it. He is just suspicious.
MS. HALE assured him that the department would not do that. It's
their responsibility to make sure a process is there, and then
it is up to the legislature to follow that process or not.
CHAIR GIESSEL said page 2 of the DNR fiscal note states that
their fiscal impact could be significant should an ONRW be
nominated.
SENATOR WIELECHOWSKI said that is his point. The fourth
paragraph on that page of the fiscal note says: "Under the bill,
the land or water use application adjudication processes could
become more complicated." And the first paragraph says: "could
be significant should an ONRW be nominated and subsequently
designated by the legislature and later signed into law." The
department's interpretation is that it's for the legislature to
decide, which he assumed would mean they would pass a
resolution, which would not be signed by the governor. Because
if the constitution says it's up to the legislature, he didn't
know that they would involve the executive branch at that point.
MS. HALE responded that she didn't have that level of knowledge
of the exact process the legislature would go through.
SENATOR WIELECHOWSKI requested that in writing, because if their
interpretation is it's the legislature's authority, it seems
that would be said in a resolution as opposed to a bill.
MS. HALE said she will follow up on that.
SENATOR WIELECHOWSKI asked her to flesh out the fiscal impact
more as well as how the Mining, Land, and Waste Use application
process could become more complicated.
MS. HALE said she would work with the DNR on that. There are
certainly potential fiscal consequences to a designation and
that is different than a nomination. They have three nominations
now.
4:28:42 PM
SENATOR COSTELLO said her concern has to do with how the bill
was written. The most public deliberative process is the
legislative process, and it is the only public process. She
thinks of it in terms of how her constituents come to her with
bill ideas without any pre-legislative process. She sees the
nomination process and reporting as adding a layer that may
easily become politicized. She also wanted to know the rationale
for everything beyond line 8 in the bill.
MS. HALE answered the implementing regulations of the CWA
require that citizens are able to nominate waters. That is where
the nomination comes from. The idea of DEC then forwarding a
report to the legislature would just be providing that
information to the legislature, and the idea of DEC having a
public notice period of those nominations is so that people who
are in the area of a nominated water body have the ability to
provide additional information and opinions to the legislature.
That is the idea behind the report.
SENATOR COSTELLO said thinking through how this would play out,
it sounds like the nomination, itself, would begin a community
input process and then the legislature may or may not introduce
a resolution or some bill to make that so.
MS. HALE answered that is correct.
SENATOR COSTELLO said it sounds like they are actually starting
the legislative process early and that a bureaucracy would be
required to manage all of these comments. She asked if other
states have just simply given the legislature this authority.
MS. HALE answered that the proposed process is actually a very
light process in terms of bureaucracy. The agency would not be
reviewing this material; it would collect the material and
forward it on to the legislature. Two other western states have
the legislature making the decision: she believes they were
Idaho and Montana. In both of those cases there is more process
before the information comes to the legislature. A lot of states
have a board or a commission actually review the material and
then make a recommendation; some states have a board or
commission actually make the designation.
SENATOR COSTELLO asked if the Bristol Bay Watershed is
nominated, if the department would get much comment from the
public.
MS. HALE responded that yes, the department may get a lot of
comments, but unlike comments they receive on draft regulations
or on a permit, they would not be putting together a response to
comment. They would pull the comments together and forward them
to the legislature. The idea is for minimal bureaucracy being
attached to that.
SENATOR STOLTZE said he would really like to hear someone of DNR
Commissioner Myers' stature explain the consequences. He knows a
lot about what constitutes "light processes of bureaucracies" in
trying to promote economic development.
CHAIR GIESSEL said he should not worry; this is not the only
hearing of SB 163.
4:36:38 PM
SENATOR MICCICHE continued on with Senator Costello's questions
and said there is a process today for nomination. If DEC were to
process the nomination for designation, the bureaucratic process
wouldn't change. It's just that instead of the department
adjudicating a designation, the legislature would be the final
say in adjudication. Is that correct?
MS. HALE responded that the department doesn't have a process
for adjudicating a decision on a nomination. They don't have a
process for the nomination; they just receive nominations.
SENATOR MICCICHE remarked that he found it interesting that
states that have become increasingly more environmentally active
like Washington, Oregon, and Idaho, do not have any designated
ONRWs.
MS. HALE said that is correct and added that Nevada also has no
ONRWs designated yet, although they have special statuses for
waters. One of the reasons they don't have any ONRWs is because
of the magnitude of the consequences of the decision.
SENATOR MICCICHE said another state that is less environmentally
active has 22 ONRWs and asked what types of water they have
designated.
MS. HALE asked if he was talking about Arizona.
SENATOR MICCICHE answered yes.
MS. HALE said she didn't know the precise nature of the waters
that have been designated there, but in Montana, all National
Park waters are designated ONRWs.
SENATOR MICCICHE asked if Washington, Oregon, and Idaho have a
process and have just not used it and what bodies of water
Arizona has designated. He also asked what the criteria would
look like for the legislature to use in designating a Tier 3
water body.
4:39:37 PM
MS. HALE answered that Washington, Oregon and Idaho do have
processes for designating waters; they just haven't done it. She
will follow up on the 22 Arizona water bodies. The criteria can
be very broad; for instance, a special hot spring could be
designated as an ONRW and then it becomes very difficult to come
up with precise criteria. That is why the criteria is left to
the legislature.
SENATOR MICCICHE said he is interested in reviewing the criteria
and process in Washington, Oregon and Idaho, and the Arizona
water bodies.
MS. HALE said she would get that information to him.
SENATOR COGHILL asked how the Environmental Protection Agency
(EPA) views nominations under C.F.R. Part 131.12. Does it put an
immediate restriction on anything?
MS. HALE answered that a nomination doesn't put any restrictions
on that water, but a designation does. She said that comment was
received on draft regulations in 2014, and they planned on
putting some clarifying language in the final regulations that
will be publically noticed in 2016.
SENATOR COGHILL said Section 2 of C.F.R. Part 131.12 talks about
how water quality shall be maintained unless the state finds
"after full satisfaction of the inter-governmental coordination
and public participation provisions of the state's continuing
planning process," and asked if the legislature would get
overruled if they do a statute.
MS. HALE replied that she didn't fully explain all of the three
different tiers; she talked mostly about Tier 3 waters. Item 2
that he is talking about really describes Tier 2 waters, which
are waters that are of higher quality than the water quality
criteria. Most of the waters in the State of Alaska are already
high quality waters. When doing a permitting action, the
department has to make certain conclusions to satisfy anti-
degradation, and that is what item 2 refers to.
In terms of being overruled, Ms. Hale said the EPA is watching
the process Alaska is going through in developing its anti-
degradation implementation methods, as it is following other
states. EPA has worked very closely with DEC and is pleased
overall with where department is going.
SENATOR COGHILL said his confusion was that he read all of
C.F.R. Part 131.12 and didn't make the connection between
Sections 1, 2, and 3. He suggested putting Section 3 on line 7
when they look at the law.
MS. HALE said she should have made it clearer.
SENATOR WIELECHOWSKI asked her to explain what would happen if
the Kenai River was designated. What would that mean for the
users and would that impact the ability to have boats on it?
4:45:09 PM
MS. HALE answered that question has come up a lot, as the
Chilkat River in Haines has been nominated. In general, it does
not mean that boats can't go up and down the river; people can
keep fishing. When the river is frozen, one can still snow
machine on it. Specifically, it means that pollutants from a
point source discharge into the river cannot be increased.
SENATOR WIELECHOWSKI asked her to define an increase in
pollutants. Would drops of fuel from a boat be an increase in
discharge?
MS. HALE said a "point source discharge" is one from a waste
water treatment plant, for instance. The type of pollution
Senator Wielechowski is referring to - little drops of gasoline
from an engine - is a "nonpoint source discharge" and the
department wouldn't be regulating those. But if there was a
problem with water quality on that river and the state,
including all the resource agencies, wanted to address that
problem, they might do something like the two-stroke ban that
went in place on the Kenai River, but that is not part of the
Tier 3 process. It would be part of the department's over-
arching water quality management process.
SENATOR COSTELLO asked her to point to where she, as a state
legislator, has the authority to vote on a measure that would
create an ONRW. Isn't that the power of Congress?
MS. HALE answered that it is a matter of semantics. EPA calls
them Outstanding National Resource Waters. Some have suggested
that rather than using that term they use Outstanding State
Resource Waters, and some states do. Other states use
Outstanding Resource Waters. So, it really is a matter of
semantics. The language in this bill is from the implementing
regulations of the Clean Water Act, but they don't have to use
that term.
SENATOR COSTELLO asked if one legislature can't bind another,
why is there such an importance placed on the process to get
into the Tier 3 category, and no provision for a future
legislature to rethink and perhaps take one off. Why would the
legislature tie its hands in that regard?
4:49:11 PM
MS. HALE responded that the C.F.R. paragraph 3 describes the
need for a process to designate; it's silent on a process for
un-designating and she is not aware of any ONRW that has been
undesignated.
SENATOR COGHILL said they should consider having a process for
un-designating in this law. He also pointed out that "any
resident may" could mean any resident of Alaska or any citizen
of the United States.
MS. HALE replied that their intent is a resident of the State of
Alaska.
SENATOR COGHILL asked if that should be a PFD-qualified
resident.
MS. HALE responded that a statute actually describes "resident"
and "person," and "person" can include an organization if it is
within the state. Those terms could be clarified if needed.
SENATOR COGHILL asked if the requirement is "you shall under
this law accept the nomination" follows through with the C.F.R.
MS. HALE answered yes; a process is needed for nomination and a
process is needed for designation.
SENATOR COGHILL said they should at least test the EPA on having
a process for un-designating.
CHAIR GIESSEL agreed. She wondered what would happen if they
designate a particular water way and then a community forms
upstream and they have no ability to put in a waste water
treatment plant or a mine.
4:52:27 PM
SENATOR MICCICHE said it looks like this process is being set up
to significantly reduce the likelihood that an ONRW would ever
be formed in the State of Alaska. It would be far less likely
with legislative approval than with agency approval. He asked if
that is a fair assumption.
MS. HALE said she had heard that, but didn't know if it is a
fair assumption.
SENATOR WIELECHOWSKI asked if the legislature or the
administration doesn't do anything, does the EPA have a penalty.
MS. HALE replied that she was not aware of a penalty, but the
greater risk might be of additional litigation. It's a
requirement that the state needs to meet at some point.
CHAIR GIESSEL said that three water ways or watersheds had been
discussed, and all can identify development opportunities that
exist on them and this is of great concern. She held SB 163 in
committee for later discussions.
4:55:19 PM
CHAIR GIESSEL adjourned the Senate Resources Standing Committee
at 4:55 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Resume-Guy Trimmingham.pdf |
SRES 2/15/2016 3:30:00 PM |
Board of Game Appointments |
| SB163 ver A.PDF |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB 163 Supporting Documents - Transmittal Letter to Senator Meyer 1.28.2016.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Fiscal Note DEC-WQ-12-30-15.PDF |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Sponsor Statement.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Supporting Document - FAQs.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |
| SB163 Fiscal Note-DNR-MLR-02-15-2016.pdf |
SRES 2/15/2016 3:30:00 PM |
SB 163 |