HB 138-NATIONAL RESOURCE WATER DESIGNATION  2:11:17 PM CO-CHAIR TARR announced the final order of business would be HOUSE BILL NO. 138, "An Act requiring the designation of state water as outstanding national resource water to occur in statute; relating to management of outstanding national resource water by the Department of Environmental Conservation; and providing for an effective date." [Before the committee was the committee substitute for HB 138, Version K, adopted as a working document during the bill hearing on 2/10/20.] CO-CHAIR TARR reviewed the committee's previous action on Version K, and forthcoming amendments. 2:13:18 PM REPRESENTATIVE HANNAN moved to adopt [Amendment 6, K.13, labeled 31-LS0811\K.13, Marx, 2/20/20, identified on the audio recording as Amendment 5] which read [original punctuation provided]: Page 3, line 4, following "based;": Insert "and" Page 3, lines 7 - 10: Delete all material. CO-CHAIR TARR objected for discussion purposes. REPRESENTATIVE HANNAN explained [Amendment 6, K.13] removes language in Version K on page 3, lines 7-10, which read: (F) an analysis of the economic cost and benefit of designating the water as outstanding national resources water, including the economic cost and benefit to communities and current or foreseeable projects; and (G) other information required by the commission; REPRESENTATIVE HANNAN said the amendment would remove the language that requires a person nominating an outstanding national resource water (ONRW) to include a cost benefit analysis of the designation, and other information required by the commission. She advised a cost benefit analysis is likely to be costly and burdensome for nominators and it is best left to the commission, or an affiliated state agency, to obtain a thorough cost benefit analysis. In addition, the request for other information is too broad. REPRESENTATIVE RASMUSSEN cautioned the responsibility to provide a cost benefit analysis would be an additional burden for the state; she expressed opposition to the amendment. 2:15:02 PM The committee took an at-ease from 2:15 p.m. to 2:16 p.m. CO-CHAIR TARR pointed out similar issues are addressed in a forthcoming amendment labeled, 31-LS0811\K.18, Marx, 2/20/20. 2:16:58 PM REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, speaking as the sponsor of HB 138, said the amendment would restrain the commission from asking for more information beyond the minimum criteria in the bill. He noted the drafters kept the bill simple and straight forward; however, the commission is balanced and should not be restrained from requesting additional information or criteria, if necessary, to reach a decision. In addition, a cost benefit analysis affects future development in the affected community, such as new roads and subdivisions, and the discussion of these factors in a cost benefit analysis shows the nominator is aware of economic and growth activities in the affected area around the nominated waterbody. Representative Kopp surmised these are questions the commission would raise and providing a cost benefit analysis is not a high hurdle, but a reasonable hurdle. CO-CHAIR TARR noted certain forthcoming amendments were drafted after discussion with the bill sponsor that changed the language from explanation, description, discussion, and analysis, to "general description," which a member of the public could provide without professional assistance. 2:21:01 PM REPRESENTATIVE HANNAN said placing a cost analysis in the criteria of ability to nominate places a burden on small, rural communities and entities that may not have the technical expertise to provide a cost analysis. She acknowledged a cost benefit analysis would be an element of the commission's decision process; however, it should not be included in the criteria that is required to forward a nomination. REPRESENTATIVE TUCK read from a document identified as 18 AAC 70.017 [document not provided], which he characterized as parallel to the language in the bill, with the exception of subparagraph (F)[text previously provided]. He said the goal is to facilitate ONRW water designations - not to hinder them - and expressed his support for [Amendment 6, K.13]. 2:25:04 PM TREVER FULTON, Staff, on behalf of Representative Kopp, sponsor of HB 138, suggested the document referred to by Representative Tuck contains either regulations that have been adopted to address discharges into a body of water that has already been designated a Tier 3 water, or is a draft implementation document that has been rescinded by the 2018 publication of the Department of Environmental Conservation (DEC) guidance memorandum deferring the designation process to the legislature. REPRESENTATIVE TUCK questioned whether a cost benefit analysis should be a relevant factor in the designation of Tier 3 water. 2:27:37 PM The committee took a brief at-ease. 2:28:46 PM RANDY BATES, director, Division of Water, DEC, said he did not find the aforementioned document in existing regulations thus it either could be a draft or has been replaced. REPRESENTATIVE RASMUSSEN read from the Alaska State Constitution as follows: The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people. REPRESENTATIVE RASMUSSEN said a cost benefit analysis would be required to determine the cost to a community of designating a Tier 3 body of water, which may lead to a loss of the benefit from a mine, or to the cost of not designating a body of water, which may lead to a loss of access to salmon or other renewable resources. She restated her opposition to the amendment. CO-CHAIR LINCOLN agreed that the burden of acquiring a cost analysis is too great for a nominator, but said he prefers to support a forthcoming amendment. REPRESENTATIVE TALERICO expressed opposition to the amendment and his interest in forthcoming amendments. He said a nominator who provided a general description would include local knowledge of the area. 2:32:43 PM REPRESENTATIVE SPOHNHOLZ, speaking as co-maker of a forthcoming amendment, said she supported the intent of [Amendment 6, K.13], but preferred the balance provided by a forthcoming amendment. REPRESENTATIVE HOPKINS noted his concern about the objective nature of the recommendations made by the commission. He directed attention to Version K, on page 2, line 25, subsection (e), which listed seven factors that are required to submit a nomination, and agreed there should be a general description of cost benefits and effects on communities. He said he would support a forthcoming amendment. REPRESENTATIVE HANNAN withdrew [Amendment 6, K.13]. She restated a cost benefit analysis that is required to be provided by the nominator would place a cost benefit analysis at the wrong point in the nomination process. 2:36:11 PM REPRESENTATIVE SPOHNHOLZ moved to adopt [Amendment 7, K.18, labeled 31-LS0811\K.18, identified on the audio recording as Amendment 10], which read [original punctuation provided]: Page 3, line 6, following "quality;": Insert "and" Page 3, lines 7 - 17: Delete all material and insert: "(F) a general description of the foreseeable impacts of designating the water as outstanding national resource water, including any impacts on cultural and subsistence uses and any anticipated costs and benefits to the community; (2) by an affirmative vote of a majority of the members of the commission, (A) make a finding of whether the nomination complies with the requirements under (1) of this subsection; and (B) within one year after finding a nomination in compliance, decide whether to recommend the designation of the nominated water as outstanding national resource water;" Page 4, lines 3 - 7: Delete all material and insert: "(f) Before deciding whether to recommend a designation of a nominated water as outstanding national resource water, the commission shall obtain any additional information considered necessary by the commission to make the recommendation and provide an opportunity for public notice and comment on the nomination. A member who votes against a recommendation approved by the commission may provide a written summary of the member's dissenting opinion." Page 4, line 8: Delete "(e) or (f)" Insert "(e)" CO-CHAIR TARR objected for discussion purposes. REPRESENTATIVE SPOHNHOLZ explained [Amendment 7, K.18] provides a compromise position in the issue of the description of the costs and benefits of a Tier 3 water designation. The amendment proposes a general description of the foreseeable impacts - including costs and benefits - and the impacts on cultural and subsistence uses, which are important in Alaska; also, that within one year of finding the nomination compliant, the commission would issue a decision on the nomination. REPRESENTATIVE HOPKINS directed attention to the amendment on page 2, lines 4-6, which read: Page 4, line 8: Delete "(e) or (f)" Insert "(e)" REPRESENTATIVE HOPKINS asked whether the deletion of subsection (f) would make the recommendation a final decision by the commission. 2:38:11 PM The committee took an at-ease from 2:38 p.m. to 2:40 p.m. REPRESENTATIVE SPOHNHOLZ explained on page 2, lines 4-6, the amendment contains conforming changes recommended by Legislative Legal Services. REPRESENTATIVE KOPP expressed support for [Amendment 7, K.18]. He directed attention to the amendment on page 1, lines 7-9, which read [in part]: including any impacts on cultural and subsistence uses and any anticipated costs and benefits to the community; REPRESENTATIVE KOPP suggested following "community;" adding "and current or foreseeable projects;" in order to be fully inclusive of possible ongoing projects in the area. 2:43:06 PM MARIE MARX, attorney, Legislative Legal Counsel, Legislative Legal Services, Legislative Affairs Agency, stated the deletion of subsection (f) is a conforming change due to the restructuring of the bill. REPRESENTATIVE HOPKINS directed attention to Version K on page 4, lines 8-11, and asked whether [Amendment 7, K.18] would make any change to whether the recommendation by the commission is, or is not, subject to appeal. MS. MARX said the amendment would not make any substantive change because the recommendation or action of the commission does not constitute a final agency decision or action. In further response to Representative Hopkins, she clarified subsection (f) was changed, and is no longer applicable. REPRESENTATIVE TUCK asked whether water that has been designated Tier 3 could have changes, within a certain range, when subjected to the construction of a bridge or a port. REPRESENTATIVE KOPP advised for Tier 3 water the baseline data must be intact; however, if there is an ongoing project in place, those activities can continue. For example, if the construction of an access road or infrastructure is foreseeable, or ongoing, the cost of the project should be included in the discussion of the Tier 3 water designation. REPRESENTATIVE TUCK recalled Tier 1 water does not have all water quality standards met; Tier 2 water has water quality standards met; Tier 3 water requires that the water maintain its current status. He expressed his understanding Tier 3 [water standards] have no requirement to improve the water quality. REPRESENTATIVE KOPP indicated correct. 2:49:28 PM CO-CHAIR LINCOLN gave a description of Mono Lake in California that is designated Tier 3, not because it is of high water quality, but because it is rare and unique. REPRESENTATIVE TUCK noted at Red Dog mine, due to proper mining techniques, the zinc concentrations were reduced and now there are trout in "that stream." He questioned whether improving the water quality in water designated Tier 3 would be a violation. REPRESENTATIVE KOPP said improving water quality is not a violation of a Tier 3 water designation. REPRESENTATIVE TUCK asked for more information on the example in California. CO-CHAIR LINCOLN said he assumed the intent is for the water quality at Mono Lake to remain unchanged. MR. BATES stated DEC would only disallow an activity in a Tier 3 waterbody that degrades the current water quality standard; he said he would provide an answer related to projects that clean up water and release water in a better form. 2:54:22 PM REPRESENTATIVE RAUSCHER gave an example of water that had many sources of pollution, but the overall water quality was improved, and asked whether a new [or increased] source of pollution would be allowed. MR. BATES said the existing water quality would be tested at the time a Tier 3 waterbody was established; any new project that would degrade the water, below the level at the time of designation, would be disallowed. REPRESENTATIVE KOPP, in further response to Representative Rauscher, explained a baseline is established for each pollutant individually, so a higher level of degradation from an existing pollutant would be disallowed. There followed discussion related to the effects of activities by polluters new to - or upriver of - Tier 3 waters that create mixing zones. Mr. Bates was asked to provide clarity on this issue after further review by DEC staff. 2:58:29 PM REPRESENTATIVE HANNAN directed attention to Version K, on page 4, lines 8-11, which read: (g) A recommendation or action of the commission under (e) or (f) of the section does not constitute a final agency decision or action, and the recommendation or action is not subject to appeal, including appeal or review under AS 44.62 (Administrative Procedure Act). REPRESENTATIVE HANNAN questioned whether said [recommendation or] action is not subject to appeal because the action of the commission is finalized by legislative process. MS. MARX explained recommendations by advisory bodies are not generally subject to judicial appeal or review, because the recommendations of advisory boards or commissions are not enforceable, until the recommendations are implemented by a further agency, or legislative action, and therefore do not govern the conduct or the rights of the public. 3:03:08 PM CO-CHAIR TARR withdrew her objection to [Amendment 7, K.18] and there being no further objection, Amendment 7, K.18 was adopted. HB 138 was held over.