HB 185-EXEMPT DISCHARGES FROM USE OF MUNITIONS  5:10:49 PM CO-CHAIR WAGONER announced HB 185 to be up for consideration. CO-CHAIR PASKVAN moved to bring CSHB 185(RES), 27-LS0506\X, before this committee for purposes of discussion. CO-CHAIR WAGONER objected for discussion purposes. He invited the sponsor to present the bill. 5:11:43 PM REPRESENTATIVE TAMMIE WILSON, sponsor of HB 185, explained that in 2008 the state sought Environmental Protection Agency (EPA) approval of its Clean Water Act program. Title 46 now excludes the firing or other use of munitions in training activities conducted on active ranges including: active ranges operated by the U.S. Department of Defense or a military agency unless it results in a discharge into waters of the United States. She said that HB 185 was vetted by the EPA, the Department of Environmental Conservation (DEC), the Department of Defense (DOD), and the state Department of Military & Veterans Affairs (DMVA). It clarifies section (e)(7) such that it cannot be misinterpreted to restrict military exercises on ranges other than instances where the federal Clean Water Act would apply. It reduces the chance of litigation in trying to interpret waters within the U.S. 5:12:55 PM KEVIN WARD, counsel, U.S. Army, Northern Regional Environmental Office, Denver, said he was representing the Department of Defense Regional Environmental Coordinator and the military services in Alaska, and that they all supported HB 185. The committee had a couple of questions at the last hearing and he reiterated his answer that HB 185 adds clarity to current Alaska Clean Water Act statute so that application of it to military ranges will be determined in accordance with the federal Clean Water Act. Secondly, he said this bill has absolutely no effect on Alaska's primacy of the Clean Water Act program, which it received from the EPA. This amendment has been coordinated with the EPA and it has no objection to it. CO-CHAIR PASKVAN said he was trying to figure out why they were going through this process and asked what differences there are between the federal and state standards for discharge into waterways. MR. WARD replied that this bill changes language in the existing Alaska statute that reads: "Unless it results in a discharge into waters of the United States." to: "Unless otherwise regulated by the federal Water Pollution Control Act." This will not result in any different standards, effluent limitations or water quality criteria between the military and any other member of the regulated community. The real purpose for this change is at the phrase "waters of the United States," which is a term that has been much debated and disputed not only in Congress but within EPA, the Corps of Engineers and the courts. The courts decisions, despite their many efforts, have not resulted in great clarity as to what the meaning of that phrase is and its meaning may change over time. So rather than have the application of the state Clean Water Act be determined by a phrase that is ambiguous and may be further be interpreted in different ways by the courts, he simply felt that they would have more clarity and confidence in what situations need to comply with the state act if it simply refers to the generic federal act. CO-CHAIR PASKVAN said he was trying to understand how Alaska would retain its primacy position as permitting agency if it defers to federal standards (as compared to state standards). MR. WARD replied that this amendment will not have any effect on Alaska's primacy. Alaska received primacy from the U.S. EPA forward state program about two years ago. EPA has reviewed this proposed amendment and does not object to it. So Alaska will remain the permitting agency. The way the requirements will apply to the military ranges will be if and when the federal act would apply, so there will be consistency between the Alaska act and the federal act. The reason that is important to the Department of Defense is so that it will not be faced with different requirements when they do or don't have to obtain permits for their ranges in different jurisdictions in different states. But if a permit is required, it would be a state permit. The state departments will also take over the schedule component for looking at military ranges and determining which permits will be required in about October 2012. CO-CHAIR PASKVAN said he understood what he was saying in terms of primacy in the sense that the State of Alaska retains its position as the permitting authority, but he perceived the substantive issue beyond who processes the paperwork was that it removes substantive Alaskan standards and defers them to the substantive standards of the federal government. And the river ways and the federal government has been a hot topic in Alaska over the last year. 5:21:42 PM MR. WARD responded with an example of how this might apply. If a citizen group wanted to assert that a military range required a Clean Water Act permit pursuant to the state act, they might assert that there is a discharge to waters of the United States. Since it is an ambiguous term and is interpreted different ways, an Alaska court might say yes, this is a "waters of the United States" under Alaska statute even though it might not be waters of the United States under the federal act. 5:22:03 PM SETH BOSANG, Assistant Attorney General, Civil Division, Environmental Section representing the Alaska Department of Environmental Conservation (DEC), said he agreed with the testimony so far that this bill really is intended to make state and federal law consistent. As it stands right now, there is at least a potential that state law on this subject would be broader than federal law and the intention is to make state and federal law consistent. CO-CHAIR PASKVAN said this where he was trying to understand the difference between the Alaska law on this subject and the federal law that Alaska is ceding to it. Why does it need to be done? 5:23:21 PM MR. BOSANG responded that this would not affect the state's primacy and the state would continue to be the permitting agency. The only thing it would affect is whether or not a permit is required and it removes some potential ambiguity where a court could construe the terms "waters of the United States" in a way that people may not have intended or anticipated. So the substantive standard that would apply would remain the same. SENATOR WIELECHOWSKI said that last year, they asked the legislative drafting attorney, Alpheus Bullard, about it and he said the definition of "waters of the U.S." is actually found in Alaska regulations at 18 AAC 83.990(77). Did Mr. Bosang agree? Mr. Bullard was also asked to explain what the bill does and he said it wasn't clear to him. MR. BOSANG said he didn't know the answer. MR. WARD answered that he believed that was correct. If it is not in the state regulations, there is certainly a definition in the federal regulations. The term has been defined various ways through policy and court decisions; but a definition that may look simple on its face has over time become not as simple as people would like. CO-CHAIR PASKVAN asked if this addresses whether a permit application even needs to be presented. In other words, if it's under the federal law and it's a discharge into federal waters, there is a potential that there would be no permit application necessary; but assuming that there was one, the only involvement that the state has is that it would be the permitting agency applying purely federal law. 5:27:16 PM MR. WARD answered that he had accurately stated that the threshold issue that this addresses is whether or not a permit is required. Because if a permit is not required as a threshold matter pursuant to the federal Clean Water Act for a military range, then one would not be required pursuant to the state act and that is the consistence they were looking for. If a permit is required, then it is a state permit and state standards, procedures and criteria apply to determine the terms of the permit. 5:28:07 PM KARLA HART, representing herself, described herself as a private citizen with a passion for clean water. She was concerned that this bill was a bit of a sleeper that because of its complexity might bite us at some point when water is polluted potentially with very persistent and dangerous toxins, leads and other things that could be with us for a long time. Alaska's clean water is too important to its economy and allowing an exemption to military ranges of our clean water standards seems like a degradation of the state's regulation over clean water overall. CO-CHAIR WAGONER closed public [testimony] and held HB 185 in committee.