Legislature(2017 - 2018)BUTROVICH 205
03/28/2018 03:30 PM Senate RESOURCES
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| Audio | Topic |
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| Start | |
| Overview of the State of Alaska's Permitting System for Anadromous Streams | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 28, 2018
3:30 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator John Coghill, Vice Chair
Senator Natasha von Imhof
Senator Bert Stedman
Senator Kevin Meyer
Senator Bill Wielechowski
Senator Click Bishop
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
Overview: State of Alaska's Permitting System for Anadromous
Streams
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
SAM COTTEN, Commissioner
Alaska Department of Fish and Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Provided overview of ADF&G's participation
in Alaska's permitting system for anadromous streams.
LARRY HARTIG, Commissioner
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Provided overview of ADEC's participation in
Alaska's permitting system for anadromous streams.
ANDY MACK, Commissioner
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Provided overview of DNR's participation in
Alaska's permitting system for anadromous streams.
RON BENKERT, Permitting Lead
Division of Habitat
Alaska Department of Fish and Game (ADF&G)
Anchorage, Alaska
POSITION STATEMENT: Provided overview of the Division of
Habitat's participation in Alaska's permitting system for
anadromous streams.
WADE STRICKLAND, Manager
Wastewater Discharge Authorization Program (WDAP)
Department of Environmental Conservation (DEC)
POSITION STATEMENT: Provided overview of ADEC's participation in
Alaska's permitting system for anadromous streams.
HEIDI HANSEN, Deputy Commissioner
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Provided overview of DNR's participation in
Alaska's permitting system for anadromous streams.
KYLE MOSELLE, Associate Director
Office of Project Management and Permitting (OPMP)
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Provided an overview of OPMP's participation
in Alaska's permitting system for anadromous streams.
BRENT GOODRUM, Director
Division of Mining, Land, and Water
Department of Natural Resources (DNR)
Fairbanks, Alaska
POSITION STATEMENT: Provided overview of the Division of Mining,
Land, and Water's participation in Alaska's permitting system
for anadromous streams.
ACTION NARRATIVE
3:30:10 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, Bishop, Von Imhof, Stedman, Meyer,
and Chair Giessel.
^Overview of the State of Alaska's Permitting System for
Anadromous Streams
Overview of the State of Alaska's Permitting System for
Anadromous Streams
3:30:36 PM
CHAIR GIESSEL announced the overview of Alaska's existing
permitting system for anadromous streams. She said Alaska is
considering changing the laws that govern its anadromous fish
streams that are located in Title 16, and today's hearing is
informational to determine whether the existing permitting
system works and to understand the quantifiable changes to the
permitting system if the initiative efforts become law.
3:31:00 PM
SENATOR WIELECHOWSKI joined the committee.
3:31:12 PM
SAM COTTEN, Commissioner, Alaska Department of Fish and Game
(ADF&G), Juneau, Alaska, opened remarks by saying that the
agencies were here today in response to Chair Giessel's request
to discuss how agencies manage and protect fish and wildlife
habitat in Alaska. He was joined by Ron Benkert, Regional
Supervisor and Permitting Lead for Southcentral Large Projects,
in the Division of Habitat. He noted that he has been assigned
to lead the division's efforts in the large projects group. He
said that Mr. Benkert also leads an "integrated approach" that
includes input from the Division of Subsistence, the Division of
Sportfish, the Division of Wildlife, and the Division of
Commercial Fish that also have an interest in some of these
projects.
COMMISSIONER COTTEN said the department's core mission is
management and protection of Alaska's fish and wildlife
resources, adding that habitat is a very high priority in that
overall mission. Healthy habitat is extremely important as
various interests compete for allocations - in salmon resources,
especially - and find that they all have one thing in common:
that healthy salmon habitat benefits everybody. The department
does not take that lightly. In fact, he has several partnerships
around the state with local governments and many groups (sport
fish organizations, commercial fish organizations, resource
development organizations, and dozens of non-government
organizations) that put a lot of time and effort into habitat
protection projects, like culvert replacements and other fish
passage efforts.
COMMISSIONER COTTEN said the chair's letter suggested that the
departments respond to three general questions, and Mr. Benkert
would respond to those for his department. He cautioned that
they would be a little hesitant to speculate on impacts to
various stakeholders (question 3), because a lot of the projects
have their own parameters and special needs. He also didn't want
to appear to advocate for or against any potential initiatives
or to influence the Supreme Court review.
3:35:53 PM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), Juneau, Alaska, said the department has no
position on the initiative and that Wade Strickland, Manager,
Wastewater Permitting Program, was with him today to talk about
the details of their existing program. He said during today's
hearing, DEC would present on three topics:
1. How water quality standards are set to protect all
aquatic life and other uses for both marine and fresh
water.
2. How the process is used to incorporate those water
quality standards into the Alaska Pollutant Discharge
Elimination System Permits (APDES) that the department
issues under the authority granted it by the
Environmental Protection Agency (EPA) in Section 402
of the Clean Water Act.
3. How the initiative would impact their program
fiscally.
COMMISSIONER HARTIG said water quality standards are science-
based and are the foundation on which permitting and other
programs are built to protect water quality. The EPA must
approve those water quality standards before they get used in
the permits. The water quality standards get revisited every
three years to evaluate data from dischargers and to look for
new science that could require a change. DEC consults with the
National Marine Fisheries Services (NMFS) and other federal
agencies. Both agencies use a public process to set or change
water quality standards. A lot of work goes into water quality
standards; sometimes it takes years to get one changed.
He explained that the EPA delegated the authority to issue
Alaska Pollutant Discharge Elimination System (APDES) permits to
the DEC in 2008 and the program was phased in over four years.
Improvements that Alaska wanted were made on updating permits
and getting them out the door more efficiently and now the
department has worked through the backlog it inherited from the
EPA. They have issued APDES permits for all the major operating
mines in Alaska at least once (Pogo) and most of them twice (Red
Dog, Kensington, Greens Creek, and Fort Knox). These permits are
issued for five years, but they can be modified or even
terminated for certain reasons. None of the permits have been
appealed judicially.
3:40:23 PM
ANDY MACK, Commissioner, Department of Natural Resources (DNR),
Juneau, Alaska, opened by saying the state has an incredibly
large portfolio of property that includes 105 million acres of
land and about 55 million acres of fresh water. The state of
Oregon has about 60 million acres by comparison. The department
tends to manage state lands and waters through plans and they
tend to emphasize multiple use and sustained yield. They are all
developed with the direct involvement of stakeholders across the
state and also the influence and participation of local
organizations including cities and communities. The state's
plans tend to be forward-leaning and are designed to allow
access including resource development. They will be talking
about three distinctions:
1. general state land
2. state parks
3. forestry
He explained that state parks are created by the legislature
along with public use areas. The department also manages state
lands which have certain activities not requiring a permit and
certain other activities requiring a permit or an authorization.
At each critical juncture, they work with their sister agencies
and take guidance from them on business matters. They view the
DNR as the custodian of both the resource, which lies under the
land in many cases, and the surface estate, which is the impacts
and activities on the surface.
Presenting with him today will be Kyle Mossel, Office of Project
Management and Permitting (OPMP), who is very familiar with how
projects come together, and Heidi Hansen, DNR Deputy
Commissioner, who manages many of the divisions that do the work
on management of state lands.
CHAIR GIESSEL remarked that over the years the committee has had
meetings and talked about how the three departments work
together to maintain the state's water quality and this is a
wonderful opportunity to hear from all three at once.
3:43:59 PM
RON BENKERT, Permitting Lead, Division of Habitat, Alaska
Department of Fish and Game (ADF&G), Anchorage, Alaska, said he
would provide an overview of how the division approaches
permitting projects that will potentially impact anadromous
water bodies and all other water bodies, and then segue into
what changes would have to occur within the division and the
department to accommodate the passage of the initiative.
MR. BENKERT said culvert replacements are done routinely. They
are classified as good or bad for fish passage. They work from a
list and work with Department of Transportation and Public
Facilities (DOTPF) and various local governments to replace
culverts whenever roadwork is being done.
SENATOR BISHOP asked how long it took to permit the fish passage
pictured in the power point.
MR. BENKERT answered that is a culvert project for DOTPF in
Cordova and a culvert of this size and scope usually takes 2-6
weeks to permit.
He added that a lot of times a diversion plan has to be approved
after the permit is issued. For instance, if a channel needs to
be diverted, the contractor comes up with a design and the
department has to approve it. The project gets another review
prior to its initiation to assure fish passage through an area
even when the construction is going on.
SENATOR BISHOP asked if this initiative passes how long would it
take to permit this project.
MR. BENKERT replied that the initiative requires a public notice
and that would add 10-30 days, whatever was settled upon as a
length of time for posting.
SENATOR WIELECHOWSKI asked if there is any public process under
existing law, especially for major projects.
MR. BENKERT answered there is currently no public process for
any of their permitting. He added that the public notification
might not cause a delay because when DOTPF or one of the
boroughs initiates a permit application they usually do it way
in advance.
SENATOR WIELECHOWSKI asked if permitting involves fees.
MR. BENKERT replied that they currently have no fee schedule for
issuance of permits, but compensation on larger projects comes
to the department through a funding mechanism managed by the
OPMP Division called reimbursable services agreements. These are
agreements with project proponents to reimburse the department
for the cost of evaluating large documents and for evaluating
the project on the ground.
SENATOR WIELECHOWSKI asked how many fish habitat permits they
issue in the course of a year; how much does that cost the
department and how much are they getting back?
MR. BENKERT answered they had a peak in 2013 when 5,000 permits
were issued statewide. That number has dropped dramatically to
1500 because of the current fiscal climate.
SENATOR WIELECHOWSKI asked how much it costs the state to issue
those permits and how much it is getting back through cost
sharing.
MR. BENKERT replied that it is hard to place a cost on just
issuance of permits because the Division of Habitat is involved
in a lot of other things. Its budget is around $7 million year.
3:51:17 PM
SENATOR VON IMHOF said usually an entire project is noticed
initially - for instance, several culverts that will take six
months to replace.
MR. BENKERT agreed that was correct, adding that DOTPF initiates
the public notice. If other components from other departments
are involved - for instance, if water needs to be withdrawn or a
stream needs to be diverted - then the DNR Division of Water
would issue a permit. The DEC also issues permits for large
construction projects - for example, the Storm Water Pollution
Prevention Plan (SWPPP) is part of their APDES permit. It
requires inserting sediment controls to make sure sediment is
not running off the site into a stream during project
construction. Those are public noticed, as well.
SENATOR VON IMHOF thanked him and said it is very reassuring to
know that there is quite a bit of opportunity for public notice
already. She asked if the culverts in his picture would need
additional scrutiny and permits to replace the same culvert in
the event the initiative passes.
MR. BENKERT replied that is undetermined. The initiative has two
categories of permits: it's either a major permit or a minor
permit, and there is no clear guidance as to how that
determination is made.
3:53:21 PM
SENATOR MEYER asked if it is safe to say that if the initiative
passes that it would create more work on the part of the
department and require a larger budget.
MR. BENKERT replied yes. He said the division's mission
statement says to protect Alaska's valuable fish and wildlife
resources and their habitats as Alaska's population and economy
continue to expand. The Habitat Division is a little bit
different than the other fish and game divisions that mostly
allocate resources. They are trying to find that balance between
allowing development and still maintaining Alaska's fish
habitats and do a lot of negotiating with project proponents.
He explained that when a project comes into the office they
routinely look at it and recommend alternative methods or
avoidance and minimization measures that can be implemented into
the project to make it better. They always prefer to see a
bridge over a creek rather than a culvert under the road; and
sometimes they convince the project proponent that that is the
way to go. It costs a little bit more initially, but the long-
term maintenance costs are much lower, and bridges don't have a
chance of impacting any kind of fish passage.
3:55:44 PM
MR. BENKERT said their workload priorities are primarily under
Title 16 permitting, but they do a lot of other things like
field work, writing technical reports, developing new standards
like the recent blasting standards, and information collection.
Large projects of importance to the state - hydro and mining
projects - is another issue they spend time on. They also
provide direction for the Forest Resources and Practices Act
(FRPA), issue permits to the Forest Service when they are doing
timber harvest and special area planning, and permitting on all
the state game refuges, critical habitat areas, and sanctuaries.
They write the management plans for those in conjunction with
their wildlife staff and DNR. When activities are proposed in
those special areas that aren't covered in a management plan
they will evaluate those to see if they can actually authorize
that activity and then write up a "special area permit."
Sometimes fish need to be handled or transported properly if a
creek is being diverted or a scientific study is being
conducted, then a fish resource permit is drafted, typically
through the Sport Fish or Commercial Fisheries Divisions.
MR. BANKERT said he would next focus on two of the department's
statutory authorities: the Fishway Act, AS 16.05.841, and the
Anadromous Fish Act, AS 16.05.871. He would first discuss the
Fishway Act in more depth. This is basically a fish passage act
that requires that any obstruction built across a stream provide
for adequate fish passage. It applies to all species, not just
anadromous fish, and all resident fish populations like grayling
and rainbow trout. If a culvert is being put, they ensure that
it doesn't block fish passage and require a long-term commitment
from the contractor or project proponent to maintain that
passage. It applies only to fish passage not to other activities
in resident fish waters like docks, for instance, motorized
stream crossings, and stream bank protections.
3:59:56 PM
SENATOR VON IMHOF said one of the previous speakers said that
none of DEC's permits had been contested in court and asked if
ADF&G had any judicial problems with its permits like people
saying the culvert was built improperly or is not sufficient for
fish to move through.
MR. BENKERT replied that some culverts weren't put in properly
and those are identified by DOTPF or the Alaska Railroad and
corrected in collaboration with the entity that constructed
them. In the case of the Railroad, sometimes it takes a little
while to see how bad the fish passage problem really is.
Reassessment is done by modeling a predominant "design fish"
from the stream into the program with velocity measurements.
That fish is run through the model to make sure it can get back
through the pipe.
SENATOR VON IMHOF said she is hearing that they check the
culverts once they are finished to make sure that salmon and
other fish are moving adequately up the stream and asked if that
process seems to be working okay.
MR. BENKERT answered yes. He added that a program in the
Sportfish Division has that as its primary task. Really bad
culverts are a priority.
COMMISSIONER COTTEN added the State of Alaska installed lots of
culverts some time ago that are in dire need of replacement and
the funding for these comes from different sources. For example,
Crooked Creek on the Kenai Peninsula is probably 40 or 50 feet
below the surface of the highway and they are waiting for
highway funding to fix that. About $5 million in Exxon Valdez
restoration funds was secured to correct a culvert that was put
in the wrong place. Either a culvert's conditions have changed,
or they just need to be replaced for some reason.
4:04:36 PM
MR. BENKERT said it's not just the ADF&G. They have good
partners for culvert replacements like the U.S. Fish and
Wildlife Service for design and funding, Alaska Sustainable
Salmon funding, National Fish Habitat Partnership, and local
habitat partners.
4:05:08 PM
SENATOR WIELECHOWSKI asked what sort of enforcement tools ADF&G
has to enforce permit violations now.
MR. BENKERT replied that both statutes they work under are Class
A, nonbailable citations, that require a mandatory court
appearance.
SENATOR WIELECHOWSKI asked, "misdemeanor?"
MR. BENKERT answered yes. That is one of the reasons they try to
work with folks who have made a mistake or don't know what they
are required to do. Sometimes landowners have a lakeshore
property and laser level their bank taking the whole riparian
zone out and put a boat ramp in without any permits. He works
with those guys to come up with remediation for the site,
because they want to comply and realize they have made a
mistake. The department will give them a permit to conduct the
remediation and will monitor it to make sure it has been
conducted properly.
For more egregious situations where someone is maybe a blatant
discharger or knows they shouldn't be doing something and does
it anyway, they use the Alaska Wildlife Troopers to enforce the
statutes. They will issue a notice of violation which can be
given directly to the violator or to one of the troopers to
issue on their behalf. Then it's just a matter of getting the
district attorney involved and taking it to court.
SENATOR WIELECHOWSKI said throwing someone in jail as the only
available penalty seems a little harsh and asked if they would
benefit from having some civil violation penalties for the
person who just doesn't want to do anything but at the same time
you don't want to throw in jail.
MR. BENKERT replied they tried to get a couple of bailable
citations through the legislature four or five years ago and
were not successful. But yes, they do see a benefit in having
bailable citations for less egregious crimes.
4:07:36 PM
MR. BENKERT said next he would cover the Anadromous Fish Act, AS
16.05.871, the focus of the initiative. This jurisdiction
applies to any kind of activity that is happening in anadromous
fish bearing water bodies and applies to any live states; so, it
doesn't matter whether its eggs in the gravel, an adult
returning to spawn, or anything in between. It is limited to
areas below the ordinary high-water line of an anadromous stream
or water body. The water bodies must be in the Anadromous Waters
Catalogue, the department's tool to identify what water bodies
in the state that do have anadromous fish. A team goes out
annually to assess and sample various areas of the state,
typically covering about 40,000 square kilometers a year, to see
if new water bodies should be entered into the catalogue. Other
consultants do it, too, those who are working on a large
project, for instance, federal agencies and other state
biologists. There is an annual nominations period for new
streams into the catalogue; the new one should come out in June.
SENATOR WIELECHOWSKI asked if he has any idea of what percentage
of anadromous rivers, lakes, and streams are in the catalogue.
MR. BENKERT replied that they had looked a lot at that but
didn't have a really good answer. But the Sportfish website has
an estimate of 50 percent, which varies between watersheds. The
percentage is higher in urban areas like the Matanuska Borough
where the Susitna/Watana Hydro project generated a lot of
biologists collecting additional information. Some places are a
really low priority such as national parks where there isn't
much chance of development occurring.
He explained that they use criteria in doing this analysis. The
state has a lot of waters that just aren't accessible to
anadromous fish like high alpine lakes with a big waterfall.
Those need to be accounted for, so there is an elevation
limitation. Anadromous fish have not been seen above about 1,100
meters. So, they don't sample there just because there is very
low likelihood of encountering anadromous fish. It all adds up
to the fact that a lot of waters in the state that are included
in that 50 percent just don't have much likelihood of containing
anadromous fish.
4:11:32 PM
SENATOR WIELECHOWSKI asked how ADF&G handles receiving an
application for a project on a stream or lake that is not listed
in the catalogue, but the department suspects it's anadromous.
MR. BENKERT replied that they "look pretty hard." For example,
the Department of Transportation and Public Facilities (DOTPF)
was replacing some culverts on the Parks Highway around Broad
Pass and the stream had been sampled three or four times for
fish and nobody found any anadromous fish; they found resident
fish but not anadromous fish. The reason it was sampled so much
is that ADF&G thought it looked like fish should be there. Then
both gas line projects proposed to go through the same place and
so both ASAP and AKLNG consultants sampled that creek, as well.
The Habitat Division went up there and still didn't find
anything. Prior to issuance of the permits they went up again
with DOTPF and didn't find anything. It came time to permit the
project and he sent a biologist up there one more time, because
he was there anyway. He put a minnow trap in that stream and got
two juvenile cohos. So, it took five sampling events to identify
anadromous fish. When it looks fishy, the department will do
everything it can to get in and try to document anadromous fish.
Culverts are still required to provide fish passage whether
there is an anadromous system or not; fish passage is for all
fish.
4:13:33 PM
SENATOR WIELECHOWSKI asked the average cost to survey a stream.
MR. BENKERT guessed a typical survey would be one guy for a day,
whatever that would cost, but remote locations with helicopter
supported surveys get expensive really quick.
He said the process of how they issue Fish Habitat Permits is:
-The applicant submits a plan and specifications to the division
-The division reviews the plans and consults with other staff
and divisions for what they know and have concerns about
-The division works with the proponent to try to avoid any
impacts if there are special concerns and negotiates to get a
better project.
The timelines for issuing permits vary widely. Sometimes a
permit can be issued quickly because it's not controversial.
Some projects take years of pre-project permitting just to get
to the place where they can put in an application. That usually
occurs on a large project. A complicated project for a large
bridge project with multiple components would require more back
and forth with engineering and environmental staff at DOTPF to
get a "good handle" as to what is going on on the ground. The
division has the ability to issue emergency exemptions under AS
16.05.891 such as in the instances of flooding and preventing
washouts of bridges.
4:17:34 PM
MR. BENKERT said their permits have a couple typical
stipulations for protection of the resources; timing windows for
construction projects is a major one. The standard window is May
15-July 15, because the smolts have already migrated out and
there is typically no eggs in the gravel and the adults haven't
returned to spawn. Their highest bar is to protect spawning
fish.
The diversion fish passage bypass has the same stipulations. The
diversion plan has to be approved to ensure fish passage
continuously through the project. They work with the Department
of Environmental Conservation (DEC) on sediment control and
require revegetation and stabilization of any bare banks with
native vegetation to make sure they get a jump-start on being
stabilized.
The department requires notification from these projects before
they divert, so a biologist can go out and make sure everything
is being done properly. The division can remove the fish for
them if they know in advance of the project. They inspect
continuously to make sure that the project follows the permit
explicitly and adjust for problems. They can issue field permits
if a project runs into a problem: if a solution looked good on
paper but didn't turn out so good on the ground, for instance.
This would avoid shutting the project down and going through the
application process again.
4:19:47 PM
MR. BENKERT said that concluded his explanation of current
business practices. Their cost statement contained the new
duties and functions if the initiative passes. First, the
initiative presumes anadromy on all waters and, therefore, any
waters in adjacent riparian areas are subject to the Anadromous
Fish Act. Currently, their jurisdiction is at the ordinary high-
water mark; they have little jurisdiction in riparian areas.
They currently don't catalogue a stream that is connected to an
anadromous stream; they need a "fish in hand" to show a stream
really contains anadromous fish.
The way the initiative is written, if the proponents disagreed
with the assumption that it's an anadromous system, they could
request a site-specific determination that his staff or some
qualified biologist would have to go out and determine. That is
an unknown cost as they don't know how exactly that would work,
yet.
CHAIR GIESSEL said he mentioned that they don't categorize
waterbodies that are above a certain elevation and asked if the
initiative would require the department to do that.
MR. BENKERT replied that is the assumption: it's not
specifically clear, but the way it's written, all waters would
be anadromous.
4:22:27 PM
One of the big components of the initiative is developing a
public notice process and it requires noticing "all permits,
applications, or amendments to permits." It also requires
separate permits for many diminimous activities now covered
under a general permit (for things that a lot of people do). For
instance, a known anadromous stream crossing, because it is a
good place to cross. The department doesn't want to have to
issue 250 permits to individuals who cross that stream. The
general permit has stipulations to make sure they are crossing
the stream correctly and the initiative would require them to
notice those, as well. Also, they are not sure what "any major
anadromous habitat permit assessments" means, but they would
need to go out and determine if fish were there potentially.
It's unclear what that would entail, but it is obviously a new
duty that requires figuring out the intent. Any major fish
habitat applications not just the permit would also have to be
noticed.
4:23:50 PM
SENATOR BISHOP asked how long the public notice period is and if
that decision is left up to him.
MR. BENKERT replied if the initiative were to pass, he believes
that a regulation package would have to be developed to guide
some of the general requirements and that would include those
timelines.
SENATOR WIELECHOWSKI referred to section 3 of the initiative
that says, "The commissioner shall specify in regulation
anadromous fish habitat". So, he presumes the commissioner could
say anything above ordinary high-water (OHW) could be presumed
to not be anadromous. It goes on to say in the absence of any
specification the commissioner shall presume that it's
anadromous, but that's a rebuttable presumption. Right? The
commissioner is given quite a bit of leeway to specify in
regulation what is anadromous and what's not.
MR. BENKERT responded that that language is vague.
SENATOR WIELECHOWSKI responded that it says, "The commissioner
shall specify in regulation anadromous fish habitat", and that's
not vague, at all.
4:25:58 PM
MR. BENKERT continued that the initiative would require written
authorization for an individual to operate under the general
permit, and that's not necessarily the case now. Currently, the
department requires having the permit in one's possession to
know what the rules are, but it doesn't need to be authorized
prior to its use.
New duties they would have to perform under the initiative would
be determine whether a fish habitat permit is a major or minor
permit (page 3) and that criteria is unclear. The department
would have to respond and address all the public input on major
fish habitat permits. It would also have to collect fees equal
to the cost of service for major permits, which would probably
apply to the site-specific determinations he alluded to earlier.
They do not currently have such a fee schedule.
The department would have to determine whether a performance
bond is necessary for a project, something they currently do not
do (DNR and DEC have that ability, but ADF&G doesn't) and
determine if the proposed activities are likely to cause
substantial damage to anadromous habitat, something they do
currently but the initiative's guidelines would be much more
codified. It would have to determine if the anadromous fish
habitat will recover if restored within a reasonable period of
time.
MR. BENKERT said under the initiative, regulation would have to
specify what activities do not require a permit and that would
be an interesting list to develop, because they would have to
come up with everything that wouldn't require a permit and if
it's not on the list, then it does require a permit.
4:28:07 PM
In conclusion, Mr. Benkert said, the passage of the initiative
would require hiring additional staff including habitat
biologists, an analyst programmer, and program technicians to
implement and handle the additional workloads. They also think
it would be a good idea to have a public education component,
just to let the public know the department has expanded its
jurisdictional authority and that folks that didn't need permits
before would need them now. The department believes a regulation
package would be required as a companion to this initiative and
that could take at least two years working with the Department
of Law (DOL), and then the legislature would have to adopt the
new regulations; then they would have to be implemented.
4:29:15 PM
SENATOR MEYER asked what he anticipates implementing this
initiative would cost and commented that it could affect several
current development projects, which could mean they won't happen
and jobs would be lost in the process.
MR. BENKERT replied that they have estimated implementing the
initiative would cost $1.3 million per year for several years
until it gets up and running. Obviously, they would still need
to hire and maintain a higher level of staff to work with the
new statute.
SENATOR MEYER asked how much more it would add to a major
project like the gas pipeline.
MR. BENKERT replied that a major project like that would have a
reimbursable services agreement (RSA) attached to it already, so
the state is compensated for its time. It may cost the project
applicant more money, because of the additional criteria they
would have to look at. It would not cost the department any
additional money.
SENATOR MEYER said the state is the one who owns the project
now, so it would cost the state a lot more.
MR. BENKERT agreed and added that another good example would be
the Susitna Hydro project.
SENATOR MEYER commented that it would also impact all the DOTPF
roads and projects.
MR. BENKERT agreed and added that the true cost of implementing
the initiative is unknown at this point.
4:31:51 PM
SENATOR VON IMHOF asked if the current system is working and if
the proposed changes to Title 16 would make it better or worse.
MR. BENKERT replied that the current system is working; they
have permitted many projects throughout the state and haven't
had too many problems with those projects. It is a large concept
to evaluate.
CHAIR GIESSEL asked Commissioner Cotten what he thought.
COMMISSIONER COTTEN responded that the answer is in the eye of
the beholder. Some view it as an improvement; others feel that
things are working fine now. It's a matter of opinion.
SENATOR VON IMHOF said she was asking his opinion.
COMMISSIONER COTTEN said they are cautioned to not appear to be
an advocate for or against the initiative.
CHAIR GIESSEL reminded committee members that asking his opinion
is crossing a line.
4:34:14 PM
SENATOR WIELECHOWSKI asked what ADF&G currently allows as
mitigation for damage to salmon habitat.
MR. BENKERT replied the department follows the same mitigation
sequence as other state departments and federal agencies, and
the number one thing is to avoid an impact altogether. Then to
minimize - negotiate to try to get certain components of it to
change so that it's not going to create much of an issue. What
can't be minimize they mitigate for. Mitigation is crafted for
each individual project; it all depends on what kind of project
it is and what is available to mitigate. Often, mitigation can't
occur in the immediate vicinity, so they look at other projects
as close to the disturbance as possible. Replacing bad culverts
bank stabilization could be a mitigation component. A good
example of this is the Fort Knox Mine in Fairbanks. Part of
their mitigation 15 or 20 years ago was to reclaim a bunch of
old placer mining sites below the project and turn them into a
beautiful wetland complex that is used by fish and wildlife
resources extensively.
4:36:26 PM
SENATOR WIELECHOWSKI asked what he requires of the permittee if
there is damage to salmon habitat; what if there are actually
fewer salmon?
MR. BENKERT replied that several things can be done: develop
alternative habitat to compensate for the loss of the damaged
habitat and artificial spawning channels could compensate for
some section of habitat. Taking fish out of the picture is
something they don't want to see, and they are trying hard to
mitigate for habitat loss, at the very least, to replace what
has been disturbed with something that will function the same.
That could be enhancing a bad piece of stream or bank
stabilization for old placer mine sites that disturbed fish
habitat 20 or 30 years ago that will actually increase the fish
population. In these cases, the people who did it are long gone;
the guy conducting the mitigation wasn't the cause. These
restoration projects are monitored.
4:38:54 PM
SENATOR WIELECHOWSKI asked if replacing wild runs with hatchery
runs is a successful technique.
MR. BENKERT replied that there are some new hatchery techniques
that haven't been used in Alaska, but the West Coast isn't using
production hatcheries and it hasn't worked out on the Columbia
River. They continue to pump millions and millions of dollars
into those hatcheries without a whole lot of recovery.
The National Marine Fishery Service (NMFS) and National Oceanic
and Atmospheric Administration (NOAA) fisheries have been
working with local proponents on something called "conservation
hatcheries," which is "a very intense hatchery situation" where
they genetically pair fish that are at a low-density level to
recover the endangered run. It is a much more selective
technique as far as developing a hatchery to not really supplant
a wild population but to reestablish it, because they go out and
try to find what is left of the wild fish population and use
animal husbandry to maintain that genetic diversity and to
reestablish that run.
4:40:14 PM
SENATOR STEDMAN asked if the sports and subsistence fishermen
and tourists who go up and down the river banks on foot,
crossing and kicking dirt in them and other things, would be
subject to these permits. He also asked if a motorized boat that
has a jet drive would need a permit.
MR. BENKERT replied that current statute says a motorized
activity within an anadromous stream, although there are
exceptions. On the Kenai River, for instance, local entities
have riparian exclusion zones and have built walk-ways to offset
human disturbance on the banks. The department works with State
Parks and local entities to identify that and try to remediate
those sites and get folks going down the right direction.
SENATOR STEDMAN asked if this initiative would change any of
that criteria.
MR. BENKERT replied it depends on the interpretation of the
wording.
SENATOR COGHILL said in many of the spawning areas people will
be floating in canoes and other shallow draft boats that
disturbs the bottom. He asked if that would be a new issue he
would have to look at.
MR. BENKERT replied it could be.
4:43:27 PM
SENATOR BISHOP asked how he would rank ADF&G's permitting system
with the peers he interacts with.
MR. BENKERT replied that he is familiar only with a couple other
states' permitting systems and Alaska is the only state that has
the two-tiered system differentiating between anadromous fish
and resident fish. California deals with all fish the same way.
Alaska has chosen to elevate the protection of anadromous fish
above the resident fish in the state.
SENATOR BISHOP remarked that the record salmon runs over the
years proves that point.
CHAIR GIESSEL followed up on what she heard Senator Stedman ask
about the map with the yellow dots indicating anadromous streams
and asked if subsistence hunters that cross streams all the time
on ATVs will need to get permits and how would that be managed.
MR. BENKERT replied they probably would unless there is a site-
specific determination requiring an anadromous fish habitat
permit. He clarified that the yellow dots indicate sampling
points.
4:46:07 PM
SENATOR WIELECHOWSKI said on the point of boats going up and
down and people walking along the rivers, that AS 16.05.871
basically says the same thing: if you're going to operate a
wheeled, track, or excavating equipment; if you're going to
pollute, change the flow of a bed or specified river, lake, or
stream; divert, use, or obstruct: those all currently require
contacting the commissioner.
MR. BENKERT replied that is correct if that water body is in the
Anadromous Waters Catalogue.
CHAIR GIESSEL thanked him for the very interesting presentation
and Commissioner Cotten for being before the committee. She
invited the Department of Environmental Conservation (DEC) to
provide its presentation next.
4:47:19 PM
WADE STRICKLAND, Manager, Wastewater Discharge Authorization
Program (WDAP), Department of Environmental Conservation (DEC),
said his presentation is structured to give a little bit of an
overview of water quality standards (WQS), which is their basis
for protecting aquatic and wild life, the statutory and legal
framework for the permitting program, the nuts and bolts of the
permitting program, and a closing slide on the impacts of the
initiative.
MR. STRICKLAND said Alaska water quality standards are science-
based and the main way that DEC maintains and protects water
quality and habitat. They designate existing uses of the water,
which includes protection of all life stages of aquatic life.
They establish acceptable levels of pollutants known as "water
quality criteria." That is done both numerically (parts per
million (ppm) and narratively (you shall not cause a sheen on
the water body). A third prong of the WQS talks about an
enhanced review for discharges to high quality waters.
Water Quality Standards (WQS) are set through a public process.
They are public noticed, which includes a response to comment
document on the regulations (regs). The Department of Law (DOL)
reviews the regs for consistency; the commissioner adopts them,
and the lieutenant governor files them; and then the regs are
actually sent to the Environmental Protection Agency (EPA). They
can't be used in the APDES permitting process until they have
been approved by the EPA. Their approval process is in
consultation with other federal services, endangered species
service agencies, and tribes.
Water quality standards are used to identify polluted waters
through stream and other water body sampling events. To
recognize high quality waters, the numeric and narrative
limitations are then transposed into the permits to ensure that
any discharges are authorized such that they protect and
maintain water quality. The WQS themselves are found in the R70
regulations.
4:50:58 PM
MR. STRICKLAND said the Alaska Pollutant Discharge Elimination
System Program (APDES) stems from the Clean Water Act and the
National Pollutant Discharge Elimination System Program (NPDES).
Section 402 of the Clean Water Act Program authorizes states to
request approval to administer the NPDES. Forty-six states have
that authorization. Alaska was the 46th state to get it, and as
of July 1, Idaho will be the 47th state.
4:51:46 PM
MR. STRICKLAND said DEC started working to secure primacy to
administer the NPDES in the late 1990s and after a long and
involved process, received authority to administer the program
beginning in October 2008. The program was taken over in four
phases; the fourth and final phase was the transfer in October
2012. Statutory authority is provided in AS 46.03 and APDES
regulations are found in chapter 83.
He said approximately 4,000 facilities are covered under the
APDES Program: they have both individual and 26 general permits,
which authorize 3,400 of them. The types of facilities that are
covered are oil and gas, mining, seafood, timber, municipal
treatment works, discharges from power generating facilities,
and many more.
4:53:17 PM
Under the Clean Water Act (CWA), the permits are restricted to
only five years. So, sometime in the fourth year the department
receives a permit renewal application from the proponent. DEC
reviews the application to see if anything has changed at the
facility and what the potential impacts of the wastewater
discharge is to the receiving water. They consider the
pollutants that would be discharged and special characteristics
of the receiving water and any aquatic life that are present.
4:53:33 PM
Slide 18
For discharges to fresh water they review ADF&G's Anadromous
Waters Catalogue to determine if the water body is listed as
anadromous. If the water body is listed as anadromous, the
permittee is not eligible to receive a mixing zone per currently
approved EPA water quality standards. A mixing zone is a limited
area in the water body where wastewater is allowed to mix in the
near area of the outfall with the ambient water before meeting
state water quality criteria. If the area is determined
anadromous, the WQS basically say no mixing zone is authorized
and all the state water quality criteria must be met at the end
of the pipe.
4:54:31 PM
Slide 19
MR. STRICKLAND said this slide includes some of the standard
provisions in an APDES permit. The permits are customized based
on the industry being permitted and whether there are sensitive
receiving water requirements. These can fluctuate but generally
that is what one sees in a permit.
The first page of the permit has his signature on it, which
makes it a legal document, and says the permittee is responsible
for complying. The permit has both numeric and narrative
limitations on the discharge. Industrial permits, especially for
oil and gas and mining, require the entire facility and
treatment to use best management practices and to operate at the
most optimal level. Municipal treatment plants have operational
plans with very similar requirements.
The NPDES or the APDES program per the Clean Water Act is a
self-monitoring and reporting program. The permit has extensive
monitoring, record keeping, and reporting requirements. Because
it's a legal document, the reporting requirements are under the
penalty of perjury. All APDES permits have standard conditions
including duty to comply and duty to allow DEC on-site
inspections.
MR. STRICKLAND said their permits come with annual or one-time
fees.
4:57:13 PM
Slide 20
He said their individual and general permits go out for a
variety of different reviews. A letter to potentially affected
tribes and local governments in the area of the discharge is
sent. All the governments and tribes are notified for statewide
general permits.
They then prepare the draft permit and provide that to the
permittee and state and federal agencies for a 10 business-day
applicant review period. During that time, the DEC can meet with
anyone who wants to discuss the permit documents, although they
do not respond to those comments in writing. It's more of
working with stakeholders to further develop the next stage of
the draft permit, and that is the permit that is released for
public notice. The draft permit is associated with a fact sheet
that describes the legal and technical basis for the permit.
They are public noticed for a minimum of 30 days. Typically, the
more complex general permits are extended and depending on the
season, if they are proposing to go to public notice on a
seafood permit in the middle of summer, they will extend it
because everyone is busy with competing priorities. So, they
often do 60-day public notices for general permits.
All major and general permits are public noticed in a newspaper
of local circulation. For statewide general permits, that means
hitting Juneau, Anchorage, Fairbanks, and sometimes for oil and
gas permits the North Slope will be included.
The program description in their 83 regulations for the APDES
program talk about having public meetings and hearings should
there be significant interest or if the department determines
that it's appropriate to do so. After that, they will prepare a
formal written response, the comment document, for all major
comments. They will then issue a proposed final permit for a
five-day applicant review, which isn't like the comment period.
It is more of "this is their last chance to take a look at it
and meet with us to make sure they understand the intent of the
permit, and catch any typographical errors, and things of that
nature." Then they issue the permit.
4:59:59 PM
Slide 21
Once the permit is issued (for up to five years), if anyone
disagrees with his decision, they can administratively appeal to
the commissioner, and after a certain time if they do not
administratively appeal, then they can appeal to Superior Court.
5:00:33 PM
Slide 22
During the five-year permit cycle, a separate Compliance and
Enforcement Program will inspect the facilities during the
permit term. They will review records, both on-site and
submitted reports during the permit term. Because it's a self-
monitoring report program, there is an emphasis on making sure
all the submittals are definitely looked at in the permit term.
MR. STRICKLAND said in the standard conditions and 83
regulations and at the end of all permits there is a requirement
to timely notify DEC of any non-compliance events that
potentially threaten public health or the environment. For less
dire non-compliance events there is a five-day written follow-up
instead of a quicker response.
During the permit period the permit can be opened and modified
based on new information, or if an application was found to be
false, it can be terminated.
5:02:02 PM
SENATOR COGHILL asked if it's up to the permittee to figure out
requirements and commented that the fact that they are already
cooperating extensively at this point is interesting.
MR. STRICKLAND answered that they coordinate extensively with
ADF&G and DNR on certain permits with known overlapping areas of
concern. For the larger projects the OPMP makes sure the
permittee is aware of the state agencies' multitude of
requirements.
5:03:35 PM
Slide 23
Impacts to DEC relating to the potential passage of the
initiative:
The initiative has a rebuttable presumption that all waters in
Alaska are anadromous and to be consistent with currently EPA-
approved mixing zone regulations, no dischargers to fresh water
would be eligible for a mixing zone.
DEC would have to work with ADF&G to review all existing permits
with fresh water to see if the initiative allows for a case-by-
case analysis to rebut the presumption. If they found that
facilities were discharging to anadromous-receiving waters,
those facilities would have to upgrade their treatment facility
to meet water quality criteria at the end of the pipe, which
would increase the complexity of the treatment systems, which
would require engineering plan reviewers to look at more
detailed plan sets. It would require increased coordination by
permit writers to work with ADF&G to look at all these different
sites and to draft new permits that would have new limitations.
Therefore, their cost statement included hiring a new permit
writer and an engineer.
5:05:34 PM
SENATOR MEYER asked if their budget would increase if the
initiative passes.
MR. STRICKLAND answered that the cost statement says it would
increase by about $270,000.
SENATOR MEYER asked if it is safe to assume that there would be
additional cost to municipalities, too. For instance, if the
Anchorage Waste Water Utility (AWWU) in Anchorage upgraded or
changed their system, would they have to meet this initiative,
or do they have to make the current system meet the initiative
as far as the discharge from the end of the pipe.
MR. STRICKLAND replied if a discharge is being made into
anadromous waters and the treatment facility is not sufficient
to meet water qualify criteria at the end of the pipe, yes, they
would have to upgrade. And those tend to be expensive.
SENATOR VON IMHOF asked if there is no upgrade or change to the
project, yet the permit is being renewed, if the initiative
passes, what existing projects would be affected.
MR. STRICKLAND answered that language at end of the initiative
talks about renewals and indicates that initiative requirements
would be triggered based on permit renewals. It's hard to
quantify. Most large mines don't have mixing zones or if they
do, the receiving water has been sampled robustly to determine
if there were anadromous fish to begin with. Existing large
mines are not of great concern.
SENATOR VON IMHOF asked about the 4,000 small mines.
MR. STRICKLAND replied that there are 4,000 APDES permittees,
which includes the whole spectrum of oil and gas mining, and
small villages that discharge. The existing permits with their
diligent follow-up aren't of great concern, but a number of
facilities were inherited from the EPA that are "backlogged
permits." Some of those have not been looked at for a long time,
and those are more concerning.
5:09:23 PM
CHAIR GIESSEL asked about the initiative's impacts on water use
for ice roads on the North Slope.
MR. STRICKLAND replied that ice roads are more of a DNR
function. However, one of their permits has a little bit of
overlap but they defer largely to DNR.
CHAIR GIESSEL said she wanted to follow up on Senator Meyer's
question about the waste water treatment plant in Anchorage that
has a waiver, because they require a mixing zone. She asked if
that was correct and if the initiative would no longer allow
that.
MR. STRICKLAND answered that the Anchorage Asplund Wastewater
Treatment Facility has a "Clean Water Act Section 301 (h)
Waiver." EPA authorized certain communities that discharge to
marine waters to apply for these waivers back in the 1970s and
he believed the sunset for application was in the late 1970s or
early 1980s. So, no new facilities can apply for the waiver, but
as their further permit reissuance occurs every five years, EPA
is required to look at their waiver and that is currently being
evaluated. Those discharges that have that waiver are only to
marine waters, and since the initiative only affects fresh
water, he didn't see a concern about the Asplund mixing zone
going away.
He added that the waiver is to secondary treatment standards,
which is a requirement for all publicly owned treatment works
and municipal discharges. The waiver says, "if you discharge
from one of these facilities you have to meet a certain level of
treatment," but section 301(h) says if you have these types of
receiving water conditions: high flushing or if wastewater
discharge mixes and disburses quickly, you may not have to spend
the money to treat to this level.
CHAIR GIESSEL pointed out that salmon do exist in Cook Inlet and
asked if he was saying the initiative does not apply in that
fish-bearing water?
MR. STRICKLAND replied his read is that the initiative talks
about anadromous fresh water. Their mixing zone regulations
still do contemplate all life stages of different aquatic life,
so they still would consider the salmon in that receiving water
when they look at the mixing zone authorization.
CHAIR GIESSEL thanked Mr. Strickland and Commissioner Hartig for
their very information presentations and invited DNR
Commissioner Mack to provide his presentation.
5:13:01 PM
Slide 25
DNR COMMISSIONER MACK said the department's mission is to
develop, conserve, and maximize the use of Alaska's natural
resources consistent with the public interest. Really, what they
do is manage all state-owned land, water, and natural resources
with the exception of fish and game on behalf of Alaskans.
He said they have an interesting dueling responsibility: one is
making sure that subsurface resources are maximized for the
benefit of the State of Alaska and then to try to do that
consistent with the qualities that all Alaskans enjoy on the
surface. It's very clear from testimony that they rely very
heavily on the Alaska Department of Fish and Game (ADF&G) and
Department of Environmental Conservation (DEC) when it comes to
fish management and water quality and in many cases, he looks to
their guidance and expertise.
5:15:19 PM
Slide 26 poses the question of how DNR contributes to the
protection of fish and wildlife resources. They have three broad
land use planning processes in three large categories. The
largest category is general state lands, which cover a vast
majority of the state's portfolio of land and water. In most of
those cases, some sort of planning document has been developed
over time. He had a list of 8 or 10 pages of the titles to the
actual plans and a short synopsis. One of the most important
plans is the North Slope area-wide plan. It was a plan for
development on the North Slope put together in conjunction with
local communities, stakeholders, and industry input. The plan is
obviously geared towards resource development, but it has a
strong component of subsistence use, as well, which is very
important to the local communities there.
COMMISSIONER MACK said the department also has authority for
state parks, which are established by this body through statute.
In some cases, the benefit of a state park is that legislators
get to design what they want to see, identify the contours of
what the park will look like and the rules of engagement and
use. State Parks has a broad statutory framework and inside that
is a park plan, and in many cases, local advisory boards and
people who provide input.
The department has forest lands, as well, that exist on general
state lands but are a particular type of state land, the State
Forest, which the department manages.
In addition, Commissioner Mack said, they have land and water
authorizations, which are a little different from what they have
heard from ADF&G and DEC. Typically, DNR is an agency that
parcels out leases and manages and authorizes uses of land and
water. When they sit at the table and contemplate those permits
and authorizations, they are really looking to ADF&G and DEC to
decide what the impacts are with respect to fish and water
quality standards. His job is to contemplate what the term of
the lease is, what its benefit are, and what the access terms
are.
COMMISSIONER MACK stated that in Alaska it sometimes feels like
the process has dueling plans. DRN is the prime state agency for
creating land use plans and in many cases, the federal
government - the National Park Service (NPS), the U.S. Fish and
Wildlife Service (USFWS) (which has a plan for the 1002 area),
the Bureau of Land Management (BLM) has a plan which includes
the National Petroleum Reserve-Alaska (NPR-A) and the Kenai
Wildlife Refuge. So, the department often looks at the state's
objectives in broad terms and makes sure they are working on the
plans as the state develops and continues to grow.
5:19:06 PM
Slide 27
HEIDI HANSEN, Deputy Commissioner, Department of Natural
Resources (DNR), Juneau, Alaska, said this slide speaks to the
fact that by statute DNR is required to prepare land use
management plans that cover the use and management of the land.
Area plans are generally the broadest plans; the management
plans cover areas that have high use such as the Hatcher Pass
Management Plan. Site-specific plans are utilized in areas where
there isn't an existing area or management plan.
5:19:55 PM
Slide 28 flags the coordination between the Alaska Department of
Fish and Game (ADF&G) and the Department of Natural Resources
(DNR). DNR's land use planning processes incorporate significant
opportunities for agency and public participation and comment
throughout the process.
5:20:31 PM
She said slide 29 speaks to some of the activities related to
state parks, which include habitat for fish and wildlife. In the
instance of the Kenai River Special Management Area, a lot of
riverbank restoration work, boardwalks, and infrastructure were
put into place to protect habitat. This was all done in
consultation with ADF&G. Signage that echoes the conservation
message is coordinated, as well.
MS. HANSEN said the Fish and Game Troopers and Park Rangers are
all authorized to enforce fish and game regulations, which is
seen predominantly in the Kenai, but happens all over Alaska.
5:21:53 PM
Slides 30 & 31
KYLE MOSELLE, Associate Director, Office of Project Management
and Permitting (OPMP), Department of Natural Resources (DNR),
Juneau, Alaska, continued explaining that the Forest Resources
and Practices Act (FRPA) applies to all non-federal land in the
state of Alaska and legislatively designated state forest lands.
The specific intent in FRPA relates to protection of riparian
areas from significant adverse effects from timber harvest
activities and provides for adequate preservation of fish
habitat. Those are balanced with economic activities derived
from forest resources. This sets up a situation where they need
to work with partner agencies, ADF&G and DEC, to fully implement
the intent.
He said the Board of Forestry oversees FRPA and has a spectrum
of interests ranging from conservation to timber to mining to
wildlife interests. He said ADF&G, DNR, and DEC together hold up
FRPA.
5:23:39 PM
Slide 32: Land and Water Authorizations
MR. MOSELLE said a lot of uses are generally allowed uses by
state regulation. A provision in 11 AAC 96.025 speaks to all
those generally allowed uses which do not require a written
authorization; it says, "must minimize disturbance to fish and
wildlife resources."
The written permits, authorizations, and approvals cover a
number of things: floating docks, weirs, uses of water, mineral
exploration, placer mining, and a gamut of uses on state land
and water. The DNR Division of Mining, Land, and Water will
consult with DEC and ADF&G on enforceable conditions that can be
added to the written authorizations for those activities if
there is a need to address a fish or wildlife habitat or
possible impact issue to those resources. The same goes for
easements and leases, he said, but those have a higher level of
authorization because it is an individual right to the person or
entity.
SENATOR VON IMHOF said she feels like they have a comprehensive
understanding of land and water authorizations and permits go
with the other departments, and it looks like the process is
working. It protects salmon and allows commerce to continue:
people can build a dock, enjoy a recreational cabin, make a
living placer mining, hunting, trapping, and guiding. She asked
what needs to be fixed.
MR. MOSELLE responded that he shared her perspective. The
agencies do well as far as recognizing that each one has
individual authorities, yet from a users' perspective they are
overlapping authorities and subject them to a number of laws and
regulations. If an individual user contacts one of the three
agencies here today, that agency will put them in contact with
the others and give them a brief explanation of what they need
to do. Larger projects need a conscious effort to coordinate
agencies and that's where OPMP comes into play. The three
agencies strive to work together at the various levels; it's not
by accident.
SENATOR VON IMHOF said interagency coordination is happening now
and this initiative doesn't necessarily create it.
MR. MOSELLE replied yes; that coordination is already happening
at various levels. The initiative will affect the statutory
authority of only one of the three agencies, ADF&G, but the
interagency piece will continue. The need to work with that
department will not change, but their level of review and
activity might.
5:28:49 PM
SENATOR COGHILL said it looks like OPMP would go into places
where an extensive review is needed like for an Environmental
Impact Statement (EIS) and permits are already open to very
extensive reviews. Was he missing something?
MR. MOSELLE replied that he wasn't missing anything but
clarified that the Environmental Impact Statement (EIS) is a
document that stems from the National Environmental Policy Act
(NEPA), a federal law that is triggered in one of three ways:
that the proposed activity is on federal land, that it requires
a federal authorization, or it is using federal funds. It is not
a state process. However, when NEPA is triggered for a proposed
activity, the state has a framework that allows the three state
agencies to plug into that process as a cooperating agency. That
gets to the question of how the state authorizations fold in
with the federal process for reviewing the potential
environmental impacts.
SENATOR COGHILL said he knows that almost everything that uses
water in Alaska has to go through a 404-wetland mitigation
permitting process that gets nearly to a level of an EIS.
MR. MOSELLE responded that Alaska has around 63 percent of the
nation's wetlands, so it's' fairly hard to do anything in Alaska
that doesn't require a 404 authorization from the Corps of
Engineers.
SENATOR COGHILL said he was just trying to demonstrate that
almost everything done in Alaska is either greenfield, federal
land, or some land use planning that requires a lot of
oversight.
5:31:42 PM
SENATOR WIELECHOWSKI asked if DNR lets the U.S. Army Corps move
forward on an expedited schedule with NEPA permitting when use
of state lands and waters has not been authorized by Alaska.
COMMISSIONER MACK asked if he was referring to the project
proposed by Pebble.
SENATOR WIELECHOWSKI replied either that or any other project.
COMMISSIONER MACK answered they work with stakeholders in the
state to ensure that if a federal project is impacting state
lands that they appropriately participate. The recent issue that
has come up is a scoping period proposed by the Corps of
Engineers with respect to that project, and the DNR has asked
for more time to be included in the process to make sure that
stakeholders have a very thorough chance to engage.
As a general matter, DNR deals with large projects in Alaska
that typically have some federal component triggering NEPA. The
next part of the analysis is whether an Environmental Impact
Statement (EIS) or an EA is needed, and the state is usually
heavily engaged in those. The department makes sure the state's
voice is heard and makes clear what they think the federal
agencies should do and how they should do it. Some federal
agencies are easier to work with than others.
5:34:31 PM
SENATOR WIELECHOWSKI said the legislature has issued dozens of
resolutions in support of development in the ANWR and the NPRA,
but the state has not authorized the Pebble Mine Project. So,
why would the state allow the Army Corps to go in on an
expedited basis to work on it?
COMMISSIONER MACK replied they have asked for additional time in
the scoping process for that project and he thinks the state
should speak about the project, because it is an issue of high
public concern in Alaska. Their general perspective is that the
Corps of Engineers has been an agency which has worked through
many delicate issues in Alaska, but every project comes with its
characteristics and the department will make sure that the
state's interest in that case - it's on state land - is fully
engaged.
SENATOR BISHOP remarked that some folks differ with the Corps of
Engineers' interpretation of the '87 field manual's definition
of wetlands.
CHAIR GIESSEL asked if permitting for ice roads will be more
stringent if the initiative passes.
5:37:12 PM
BRENT GOODRUM, Director, Division of Mining, Land, and Water,
Department of Natural Resources (DNR), Fairbanks, Alaska,
answered that whenever the water resources section gets an
application for water use, they always contact ADF&G and DEC. If
the initiative passes, ADF&G's requirements might change and
that could impact permitting for ice roads on the North Slope.
5:38:20 PM
CHAIR GIESSEL asked if the generally allowed uses listed on
slide 32 would change under the initiative.
MR. MOSELLE replied that they wouldn't necessarily change,
because they are identified expressly in regulation. Although it
is not an exhaustive list. Some authorities could overlap for
written authorizations where they consult with ADF&G and DEC, so
there could be some interplay.
5:39:11 PM
Slide 33 Land and Water Authorizations
COMMISSIONER MACK said this slide points out that DNR is
custodian of the molecules of water and relies on ADF&G and DEC
to decide the sufficiency of the quality of the water and the
amount of water which is required to remain in the stream so
that it continues to be receptive to reproduction of fish, if
that is the case. A process is established in statute with
criteria. The Division of Mining, Land, and Water determines
appropriateness of an application to issue an in-stream flow
reservation to protect some of the water.
COMMISSIONER MACK said a corresponding issue is a water
appropriation, which is when an entity needs to use water for a
particular purpose in a particular area or temporarily use some
water. The department relies very heavily on ADF&G for informing
those types of decisions.
5:42:04 PM
MR. MOSELLE said slide 34 reiterates complex project
coordination activities that happen any time multiple agencies
need to be involved because of their individual statutory and
regulatory authorities. This is where the OPMP will come into
play. Typically, they coordinate for transportation, oil and
gas, mining, or alternative energy projects and they do this by
forming multi-disciplinary agency teams to review the
applications. They try to identify issues early, be creative in
addressing them, and ensure that as they address an issue for
one agency they are not creating a conflict for another.
MR. MOSELLE summarized their main points: DNR manages all state-
owned land, water, and natural resources except for fish and
game on behalf of Alaskans. DNR contributes to the protection of
fish and wildlife through its land use planning and permitting
processes, and coordinates with ADF&G and DEC, specifically, on
management plan guidelines, authorizations, and permit
conditions related to fish and wildlife resources.
Because he is a visual learner, Mr. Moselle said he likes
diagrams and the last slide is a visual representation of that
coordination; at the very center is the Office of Project
Management and Permitting (OPMP). Aside from ADF&G, DEC, and
DNR, it is surrounded by the Department of Health and Social
Services (DHSS), Department of Law (DOL) (to advise regulatory
agencies in the executive branch), and the Department of Revenue
(DOR) (advising on proof of financial responsibility). He
offered to answer questions.
5:45:45 PM
SENATOR VON IMHOF thanked them for the "great" presentations and
commented that after listening to them she has grave concerns
about this initiative. She thinks it will affect the state
economically. At this time, Alaska has a very robust permitting
process and something like this initiative will hammer
unnecessary layers on it. Aside from the big commercial
projects, she wonders how this initiative would affect the small
home builder, the placer miner, projects to build hiking trails,
and the small businesses that are already paying the high cost
of health care and energy, that will now have layer upon layer
of delays and permits.
SENATOR MEYER asked what financial impact this initiative would
have on DNR.
COMMISSIONER MACK replied that DNR is not included in the cost
estimate.
SENATOR BISHOP editorialized on ice-road water use. The state
has a comprehensive permitting system going above and beyond
federal requirements. It is well coordinated and well run.
Talking about a fiscal note, he remarked how one facilitates
access to a Point Thomson or an Alpine and not hit the bottom
line to the State of Alaska!
CHAIR GIESSEL thanked everyone again for their presentations and
asked for any closing remarks.
MR. BENKERT said he appreciated the opportunity to speak with
the committee today. The three departments work very closely
together to make sure project is the best possible. Sometimes
it's a very long process, but they really try to cover all their
bases.
5:51:06 PM
SENATOR COGHILL wondered if the initiative's ambiguities will
cause a new liability for litigation.
5:53:30 PM
CHAIR GIESSEL said she was "very impressed" with the biologic
sciences the departments are applying to the permitting process
in guarding Alaska's water and fish resources. It informs the
committee and the public, which is key, because advocating
regulation of these resources to the ballot box can creates some
very serious outcomes that are not particularly helpful. "That
is why the best protection of liberty is an informed electorate,
as one of our founders once said."
She adjourned the Senate Resources Standing Committee meeting at
5:53 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Senate Resources Hearing Agenda - 3 - 28 - 18 .pdf |
SRES 3/28/2018 3:30:00 PM |
|
| ADFG DEC DNR Presentation to Senate Resources 3-28-18.pdf |
SRES 3/28/2018 3:30:00 PM |