HB 89-AQUATIC INVASIVE SPECIES  10:28:55 AM CHAIR SEATON announced that the final order of business would be HOUSE BILL NO. 89, "An Act relating to the rapid response to, and control of, aquatic invasive species and establishing the aquatic invasive species response fund." CHAIR SEATON opened public testimony. 10:29:26 AM GERALD McCUNE, Lobbyist, Cordova District Fishermen United, stated support for HB 89 and said that debris has been evident, including Japanese debris lodging in fishing nets. He said the bill provides a vehicle to monitor beaches and to respond to invasive species. 10:31:12 AM RODGER PAINTER, President, Alaskan Shellfish Growers Association, stating support for the intent of HB 89, pointed out the written response in the committee packet, and said many methods of invasive species introduction exist, including: ballast water discharge, tsunami debris, and other opportunities that come with the freedom of vessels moving in the ocean and the successive use of fishing gear in multiple areas. Aquatic farmers are concerned about the possibility of infestations. However, there is also concern for some language contained in the bill, specifically page 2, subsections (f) lines 17-20, and (h) lines 25-28. Interpreting these subsections, he said, it appears that ADF&G and DNR would be held harmless for any impacts on private property, but, as shellfish farmers, the majority of private property assets are located in the water in the form of gear and crops. Although language stipulates that the department shall consider the potential effects of its response measures on private property, Mr. Painter opined that the wording is "soft." Referring to the most common aquatic threat, tunicates, similar to what was found in Whiting Harbor, he said, although these are difficult to deal with, they cannot survive once removed from the water. Aquatic farmers can pull gear, without damage, and employ methods to save aquatic crops such as thermal treatment or brining, which would not affect shellfish. The easiest means of killing a tunicate is exposure to air. He said the proposed language, as stated, is not reassuring and sets up a situation of distrust. There have been times when the private sector was "at war" with the state agencies, he recalled, and said it is important to cultivate good relations between the government and free enterprise. He said the need for this legislation is clear, and suggested more reassuring language be considered. 10:38:39 AM REPRESENTATIVE HERRON asked if the association has reviewed the MOU. MR. PAINTER responded no 10:39:02 AM CHAIR SEATON referred to the bill page 1, lines 6-9, paraphrasing the language, which reads [original punctuation provided]: (a) The department shall, in cooperation with the Department of Environmental Conservation, the Department of Natural Resources, and other state, federal, public, and private entities, establish a rapid response and management plan for addressing incipient populations of aquatic invasive species. CHAIR SEATON pointed out that this language directs the department to incorporate the input of private entities for the development of a plan and asked whether inclusion in this sub paragraph is enough to protect private sector interests. Further, once a plan is devised and implementation is imminent, as noted in the subsequent, previously referenced subparagraphs the agency is required to show consideration for the private property interests. MR. PAINTER agreed that it is helpful to have the departments directed to include the aqua farmers from the onset rather than association members having to insert themselves into the process. 10:41:06 AM JULIANNE CURRY, Executive Director, United Fishermen of Alaska (UFA), said that UFA has not discussed HB 89 but invasive species is a concern and the need exists. She said the upcoming meeting would have this bill as a topic and, in anticipation of the outcome, she stated unofficial support for HB 89. 10:41:59 AM REPRESENTATIVE HERRON asked whether a definition for rapid response would be part of the anticipated discussion. MS. CURRY responded yes, it is important to be able to provide a rapid response. 10:42:47 AM MARLENE CAMPBELL, Director, Government Relations, City of Sitka, stated support for HB 89 and said the legislation has strong support. Sitka is the first Alaska site infested with Didemnum vexillumis, the invasive species that has caused immense damage in many areas of the world. The tunicate is fully entrenched in Whiting Harbor, after appearing two years ago. She said since its appearance, the area has not been cordoned off nor have boaters been encouraged to refrain from entering the area; rather, boats routinely enter Whiting Harbor to fish, risking further infestation. The bill should include a priority requirement for marking or blocking off an infested area to inhibit spread. The Alaska Department of Fish & Game (ADF&G) received a $500,000 budget item in the FY 13 budget, specifically to work on eradication, but an RFP has yet to be issued. Despite discussion and planning the department has not taken obvious steps, other than removal of an aquatic farm; in- water eradication steps have not occurred. She expressed concern for lack of action on the infestation and said efforts have been hampered by lack of staff and initial funding. The department employs only one person to oversee invasive species for the entire state. The City of Sitka is ready and willing to work with agency staff to assist in any way possible, but thus far has had no direction or information to help with the Whiting Harbor episode. The bill may help create a united effort for handling invasive species, and she emphasized the need for a rapid versus eventual response. 10:49:11 AM CHAIR SEATON asked for comments from DNR and ADF&G regarding the development of the MOU. 10:49:30 AM ED FOGELS, Deputy Commissioner, Department of Natural Resources (DNR) responded that the MOU delineates that DNR will take the lead on coordinating efforts to address invasive freshwater plants; ADF&G will have purview over anything that swims and inhabits saltwater. Under the MOU a rapid response system will be developed, which may employ chemical and mechanical methods. Streamlining the permitting process is also important as that can slow or delay an otherwise rapid response. 10:51:53 AM REPRESENTATIVE HERRON referred to the Fiscal Note Analysis provided by DNR, Division of Agriculture, page 2, and paraphrased the sixth paragraph, which reads [original punctuation provided]: Currently, there are some eradication efforts in planning stages for freshwater invasive aquatic plants in Alaska-specifically for Elodea. The removal of Elodea would be carried out in the following methods: manual removal by divers, suction dredging, or chemical application. REPRESENTATIVE HERRON asked if the removal methods mentioned are in the governor's proposed budget. MR. FOGELS responded that the current budget for the invasive species program covers one staffing position, the invasive species coordinator, and nothing additional. The employee identifies response methods and means, as well as issues public announcements, and coordinates agency response. He said the removal itself is significantly more expensive that what is indicated, and other entities have been acquiring funds to help with the effort. The funding that DNR has budgeted will provide the "backbone" for response. REPRESENTATIVE HERRON asked why it will take at least a year to develop a rapid response plan. MR. FOGELS explained that, for combating Elodea, mechanical methods have been tried but are not 100 percent successful. Chemical agents can be effective and are reasonably benign, but how benign along with how the chemicals may react in northern waters are unknowns. Additionally, residents have concern regarding the use of chemicals, particularly those with private wells near the Elodea infested waters. Thus, he said, it all takes time to arrive at a safe effective approach. REPRESENTATIVE HERRON recalled committee discussions regarding the ADF&G statewide management plan for invasive species. He referred to the fiscal note submitted by ADF&G, Division of Sport Fish, page 2, and noted that it is anticipated to take 18 months for completion. In the previous hearings, reports were that planning began two years ago, and he asked why it will take another 18 months. 10:57:03 AM CHARLIE SWANTON, Director, Division of Sport Fish, Alaska Department of Fish & Game (ADF&G), said the plan referenced is a document prepared in 2002 and is used as a guiding document; it's 10 years old. The fiscal note funds the first phase of the current effort and provides 18 months of funding to update the 2002 document and address the five species identified as current threats, which are: tunicates, Northern pike, European green crab, cordgrass, and crayfish. In the course of the 18 months, a rapid response plan will be developed to handle vectors of each of the identified species and include assistance from outside agencies, and private sector groups. He emphasized that it is important to have a current document to guide a comprehensive approach. 10:59:26 AM CHAIR SEATON noted that the MOU is an internal discussion between three agencies, and HB 89 requires inclusion of outside entities. He asked if the departments see any problems with developing a collaborative approach, as indicated in the bill. 11:00:25 AM MR. FOGELS responded that DNR considers the directive to included stakeholders to be a positive approach and said it is an important aspect for meeting an infestation effectively, as well as to provide immediate mobilization. The soil and water conservation districts, as indicated in the MOU, are expected to play a crucial role, he said. Permitting for eradication via chemical application will take significant public discussion. MR. SWANTON agreed and said it is important to bring everyone to the table and can only prove beneficial to the state efforts. 11:01:46 AM CHAIR SEATON stated his understanding that budgeted funds are available for a rapid state response, yet monetary burden is being placed on soil and conservation districts to provide necessary support. He expressed concern for relying on non- profit organizations, with limited funds, to shoulder funding responsibilities. If capital grants are to be considered as a source, and the legislature is not in session, a delayed response would be inevitable. The bill is intended to establish a fund to draw on immediately to carry out a previously devised plan, but not to create the plan. MR. FOGELS clarified that cost responsibility and response would not rest with the conservation districts, and agreed that the funding mechanism needs to be worked out. CHAIR SEATON restated that the bill establishes a fund for the agency, in charge of response, to draw down for implementation of a previously established plan; derived through the stipulated public process. The legislature would handle the appropriation process, but would not need to be convened in order for a response to take place. Having funds readily available is meant to ensure that a rapid response can be executed. REPRESENTATIVE GATTIS commented that it is an oxymoron when a rapid response takes years to progress, and noted that, thus far, one employee is in charge of invasive species but a workable plan is not in place. MR. FOGELS said DNR has a strategic plan for invasive species and he offered to provide it to the committee. 11:06:43 AM TIM STALLARD, Chair, Alaska Committee for Noxious and Invasive Plant Management, stated support for HB 89 and said that it is timely for Alaska to act on invasive species. An exponential growth curve exists for an invasive, but when they are insipient it is possible to eradicate them prior to a population explosion. Thus, a rapid response is imperative, bearing in mind that every species has a particular growth curve; pike versus DVex or Elodea. He referred to the ISER study, available in the committee packet, regarding the costs associated with invasive species management. The study indicates funding source percentages as: federal government 84, state 5, and private non-profit agencies 9. He noted that the non-profits are contributing over twice as much as the state currently provides, and said HB 89 is important to ensure Alaskans as responsible stewards of the state's natural resources. The bill focuses on ADF&G, and he expressed concern that both agencies are provided the response ability and authority beyond stipulations of the MOU. Regarding the fiscal notes, he said it is reasonable that ADF&G update the comprehensive plan, but the DNR request seems inadequate, he opined. Leadership is important, and the inclusion of funding to enlist the assistance of an experienced consultant could prove helpful; especially regarding invasive plants. MR. STALLARD continued, paraphrasing from a prepared statement, which read [original punctuation provided]: I understand its standard practice to have a "Hold Harmless" clause in state lease agreements. I'm looking at a State Airport lease agreement - there is a hold harmless clause in there if the state needs to come in and clean up a fuel spill in the area of a leased hanger. The state has a public trust responsibility to protect its resources. Of course we want to support and facilitate industries such as mariculture, but the state shouldn't assume the risk of safeguarding commercial property operating in state waters and benefiting from use of the public resource. I would think the details of this would normally be sorted out in Department Regulations, which are theoretically a more flexible process than statutes. Part of such regulations could be the opportunity for the leasee to remove their property within a certain period and not put it back into the water before satisfying the agency Director that it has been decontaminated. Remember this is potentially an emergency situation and swift action will likely be necessary to contain and prevent further spread of a harmful new species. Under item (c) 2nd page line four - emergency exemptions. "Quarantine" - we want to make sure this will give ADF&G or DNR authority to close water bodies temporarily if needed. Right now Sand Lake in Anchorage is infested with Elodea and folks can still fly in and out of there, take a boat from there anywhere in Alaska - potentially spreading this invasive threat to salmon all over the state. Note there are not any State signs even posted about the problem. 11:15:22 AM CHAIR SEATON closed public testimony. 11:15:32 AM REPRESENTATIVE GATTIS moved Amendment 1. [Subsequently withdrawn and re-offered.] CHAIR SEATON explained that ADF&G suggested this amendment to ensure that a full response could be made; removing restrictions for the department to delegate and authorize duties to responders. 11:17:13 AM REPRESENTATIVE JOHNSON established that the amendment holds the department, or workers contracted by the state, harmless, and he expressed concern for regarding what might occur if a contractor proved unscrupulous. A legal opinion would be helpful, he said. REPRESENTATIVE HERRON concurred. CHAIR SEATON directed attention to the committee packet and the departmental request, including intent, for Legislative Legal Services to review and draft the amendment. REPRESENTATIVE JOHNSON suggested that specific stipulations could be imposed when the contract is signed rather than drafting statutory language. However, he maintained that control of state agents could prove difficult and questionable. CHAIR SEATON suggested clarification directly from Legislative Legal Services. 11:21:59 AM REPRESENTATIVE GATTIS withdrew Amendment 1. 11:22:21 AM REPRESENTATIVE JOHNSON stated support for HB 89 and said it is good to see legislation regarding invasive species. Alaska is ahead of the nation partially due to locale. In some states, property owners can be denied bank loans based on the presence of an invasive species inhabiting a parcel of land. He commented that the soil conservation districts are more able to mobilize large numbers of volunteers, than provide funds, to help eradicate invasive species. 11:24:38 AM ALPHEUS BULLARD, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, said the intent is to hold harmless the department or agent of the state, when responding, notwithstanding gross negligence; it does not provide a blank slate. 11:26:52 AM CHAIR SEATON offered a theoretical situation involving a nonprofit volunteer working on a project to remove Elodea and asked if the terminology "agent of the state," would apply to this worker. MR. BULLARD responded that subsection (b) only applies to the department. If there is a mechanism that allows the department to deputize the volunteer as an agent, then it would apply. REPRESENTATIVE SEATON suggested it would eliminate suit being brought against someone carrying out a state plan for rapid response. 11:28:29 AM REPRESENTATIVE GATTIS re-offered Amendment 1, labeled 28- LS0339\U.1, Kurtz\Bullard, 2/11/13, which read [original punctuation provided]: Page 2, line 18: Delete "department" Insert "state and the officers, employees, and agents of the state" 11:28:57 AM REPRESENTATIVE SEATON, hearing no objection, announced Amendment 1 as adopted. 11:29:50 AM REPRESENTATIVE KREISS-TOMKINS expressed support for the bill. 11:30:22 AM CHAIR SEATON the hold harmless may seem aggressive but one thing that held up the response in Whiting Harbor was the problem of ADF&G not knowing how to handle the private mariculture facility. A rapid response cannot be conducted if fear of a law suit is prevalent. Responding to an invasive, durable species, such as mussels, requires that a comprehensive plan be in place for immediate implementation. 11:32:51 AM REPRESENTATIVE JOHNSON commented that the best response agents are often the public and, in formulating an effective plan, this should be a focus for consideration; people need to know what is happening and how they as individuals can help to provide a rapid response. 11:34:54 AM REPRESENTATIVE HERRON moved to report HB 89, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 89(FSH) was reported from the House Special Committee on Fisheries.