SB 163-NATL. RES. WATER NOMINATION/DESIGNATION  4:28:43 PM CHAIR GIESSEL announced consideration of SB 163. SENATOR COSTELLO moved to adopt proposed CSSB 163, version 29- GS2916\H, as the working document. CHAIR GIESSEL objected for an explanation and invited her staff to explain the changes. 4:30:10 PM AKIS GIALOPSOS, staff to Senator Giessel and the Senate Resources Committee, Alaska State Legislature, Juneau, Alaska, explained the changes in the CS. There are seven changes in version \H as follows: 1. Page 1, Lines 7-9: Amends Section 1(a) by prohibiting the Department of Environmental Conservation from managing a water of the state as an outstanding national resource water unless it has been designated as an outstanding national resource water by an act of the legislature. 2. Page 1, Lines 10-13: Amends Section 1(b) by requiring a nomination to specifically and geographically identify a water body, or portion of a waterbody, for designation as an outstanding national resource water. 3. Page 2, Lines 1-8: Amends Section 1(d) by requiring the Department of Environmental Conservation to adopt regulations establishing a process for submitting a nomination for an outstanding national resources water by providing public notice for all nominations, providing notice to all property affected by the designation, and creating a means for any resident of the state to provide additional information about the nomination. 4. Page 2, Lines 9-31/Page 3, Lines 1-2: Creates a new Section 1(e), requiring the Department of Environmental Conservation to transmit a nomination of an outstanding national resource water to the legislature if the department determined the nominated water to be unique, important, or ecologically sensitive; that the designation is necessary to protect the water due to insufficient federal and state protections; determined there is no other available/effective method of protection. The Department would need to determine whether the nominated water had either been designated a wild or scenic river; whether the water is either an ecosystem or habitat for an endangered or threatened species; whether the water is an ecosystem or habitat for an outstanding recreational fishery; or whether the water serves as the sole source of water for the use of people. The Department would describe the potential effects of a designation on endangered or threatened species; recreational fisheries; and the water supplies for the use of people. 5. Page 3, Lines 3-8: Amends the previous bill version's Section 1(e) by reordering it to subsection 1(f), and adding a provision prohibiting the Department of Environmental Conservation from transmitting a substantially similar nomination to one already transmitted within two years of the existing nomination's original transmission. 6. Page 3, Lines 9-14: Adds a new Section 1(f), requiring the Departments of Environmental Conservation and Natural Resources to submit a report to each body of the legislature every ten years, beginning in 2017. The reports would describe each body of water designated as an outstanding national resource water and provide a recommendation regarding the continuation of that designation. 7. Page 3, Line 21: Amends Section 3 by replacing the word "may" with "shall," requiring the Department of Environmental Conservation to adopt regulations necessary for the implementation of the bill. CHAIR GIESSEL removed her objection and said since Senators Coghill and Stedman had suggested some of these changes she would offer them the opportunity to comment. SENATOR COGHILL commented that a 10-year review is totally appropriate (referencing language on page 3, lines 9-14, Section (g)). A lot of places in Alaska that have not been occupied will change. 4:35:01 PM SENATOR STEDMAN said language on page 2, line 5, provides a provision to require individual notification to property owner(s), the reason being they are always taking away peoples' property rights away and very rarely adding to them. When you purchase property, you buy those rights, and he didn't think it appropriate to take them away without proper notification and due process. SENATOR WIELECHOWSKI asked if the notice to known property owners will include people who have ownership of rights-of-way along a river or a couple hundred yards in from that, but may take the water. MR. GIALOPSOS answered that he understands Senator Stedman's intent is to provide notice to each property owner whose interests are affected by the designation that would have their property directly impeded by the waterway. The DEC will promulgate regulations that should clarify that issue. SENATOR WIELECHOWSKI asked for the DEC commissioner to come back. 4:37:21 PM SENATOR COSTELLO asked if language on page 3, line 14, of the 10-year report is asking for a recommendation from the two departments on the continuation of the designation, because that implies that there is a process to un-designate. She wanted to know if that is the intent, and if that is included in the lower section of the bill where the department would write the regulations. MR. GIALOPSOS answered according to Legislative Legal because this would be an act of the legislature, not a constitutional act, and because one legislature cannot bind the hands of future legislatures, it is understood that these departments could recommend to un-designate in extreme circumstances, barring a constitutional prohibition. CHAIR GIESSEL asked if there is further objection to the committee substitute (CS). Finding none, she announced that Version \H was before the committee. She invited Commissioner Hartig forward and asked him to comment on the CS. 4:39:09 PM LARRY HARTIG, Commissioner, Department of Environmental Conservation (DEC), Anchorage, Alaska, said the CS addresses a number of issues and that it represents reaching "some middle ground" to get more consensus. He is still concerned with some ambiguous language that has already been mentioned. SENATOR WIELECHOWSKI asked if new language on page 1, lines 7-9, means the department may not manage water of the state as specified in 40 CFR (Code of Federal Regulations) 131.12 unless it has been designated as an outstanding national water resource (ONWR) under this section. That is essentially saying the DEC may not manage the water as an ONWR, and there is a lot more to anti-degradation than just the ONWR. Does this mean that DEC can't apply anti-degradation to manage any water unless it is specifically designated as an ONWR? It could be read two ways. COMMISSIONER HARTIG agreed adding that that that CFR section reference covers more than Tier 3 waters. It appears to also deal with Tier 2 waters and perhaps Tier 1. This also might be contrary to requirements of the Clean Water Act, but he would have to get a legal opinion. He thought there were some unintended consequences that need to be addressed. CHAIR GIESSEL asked if he would advocate when water is nominated that it would immediately become under the jurisdiction of a Tier 3 water without having any review. COMMISSIONER HARTIG responded no; it's more subtle than that. It says the department may not manage water of the state as specified in 40 CFR 131.12, and that section also deals with how Tier 2 waters are managed and maybe Tier 1. It's confusing. CHAIR GIESSEL asked if "tier water" only is designated as ONRW. COMMISSIONER HARTIG replied only Tier 3 water. CHAIR GIESSEL said she agreed that that language seemed to make it a bit more specific. COMMISSIONER HARTIG explained that the problem is with the referral to all of 40 CFR 131.12 that deals with more than just Tier 3 waters. SENATOR WIELECHOWSKI asked if he had any recommended language. COMMISSIONER HARTIG answered that he could come up with some other language. 4:43:50 PM SENATOR WIELECHOWSKI asked what if you had to take the river to get to your property and had to hike in a few hundred yards in reference to language on page 2, lines 5-6. How would it be determined that a property is affected, because clearly someone whose land abutted water would be affected? COMMISSIONER HARTIG agreed with all the discussion he had heard already about noticing anyone affected before anything happens, but in practice it might not be easy to execute, because of ambiguity and costs. For instance, it says to "each known property owner," for which he thought the intent was "real property owner." Also, "whose interest is affected" would be a tough determination to make, because each person's circumstances would have to be considered. Something definitive would have to be crafted. Perhaps they could provide the same notice the department does to the general public for a rule making broadcast, and a more targeted approach for directly affected owners. CHAIR GIESSEL asked if he wants that language in statute rather than regulation. COMMISSIONER HARTIG said he wants some guidance in statute, but the details could be worked out in regulations. 4:47:22 PM SENATOR COGHILL said he thought the 40 CFR 131.12 reference issue could be fixed by referencing subsections (a)(3), specifically. Then the designation hasn't happen, but the reason to designate is in what is called Tier 3 section. CHAIR GIESSEL asked if he was on page 1, line 8. SENATOR COGHILL answered yes. COMMISSIONER HARTIG said he guessed that would be the direction to go, but he would have to talk to the attorneys about it. 4:49:36 PM SENATOR WIELECHOWSKI said language on page 2, lines 16-17, talks about the department transmitting an ONRW nomination only if, and a number of things are listed, and asked if number 3 - determines that there is no other available or effective method of protecting the water - and asked if that is a costly analysis. COMMISSIONER HARTIG agreed that it would be and added that his concern generally was how to pay for this, because there is no mechanism currently. He is looking at four nominations right now, and if they start acting on those and he to have them ready by the start of next session, he would have "to get real busy." There is the whole Bristol Bay watershed, all of the Yakutat forelands, the Chilkat River, and the Koktuli River. The concept about an alternative short of a Tier 3 is a legitimate area of inquiry, he said, but he was a bit concerned with "determines that there is no other available or effective method for protecting the water," because that would never be the case. There is always something else, like declaring a park. CHAIR GIESSEL said the fiscal issue is a fundamental question. The Governor has asked that the legislature make this determination, but public comment indicates that they are considered a political body and not a scientific one. So, regardless of who is doing this, scientific information would be needed. One member suggested having a fee attached to a nomination. 4:52:46 PM COMMISSIONER HARTIG agreed about the science and other relevant facts to the criteria like recreational and ecological values would be needed. 4:53:18 PM SENATOR STOLTZE disclosed that his property has a couple hundred feet of river front. He asked what the legislature could do to help him "keep on this high ground that I believe you started on." COMMISSIONER HARTIG said he believes the legislature should make the ultimate decision; it would take a lot to convince him otherwise. He would want to assure that the legislature has the science and public weigh-in when it gets the package to make a decision efficiently. 4:59:33 PM At ease 5:00:13 PM CHAIR GIESSEL called the meeting back to order and began taking public comment on the CSSB 163, version 29-GS2916\H. 5:01:02 PM PENNY VADLA, representing herself, Soldotna, Alaska, opposed SB 163. The legislature should not be making this designation about our waters, but the DEC should do it based on scientific information. 5:03:41 PM RANDY JACKSON, representing himself, Haines, Alaska, opposed SB 163. The bill is not ready to be moved forward as it doesn't have much local support. He said the bill should have specific language saying the ADF&G advisory committees should have a say in the nominations, maybe through a letter of recommendation. How to pay for this has been brought up a number of times, because the department can't pay for its projects now. 5:07:00 PM GEORGE CAMPBELL, representing himself, Haines, Alaska, enumerated problems with SB 163. In looking at case law, the Tier 3 designation is important throughout the country, because of its restrictions. What about the people on the tributaries when their lifestyle must change because of this designation? There is already confusion about parks and subsistence and overlapping federal and state regulations. 5:10:01 PM VERNER WILSON, Director, Natural Resources, Bristol Bay Native Association (BBNA), Dillingham, Alaska, opposed SB 163. He said a decision like this should be based on science. In Bristol Bay the bill would place the burden on them to obtain additional protections on their clean waters that many people in the region depend on. They would have to spend tight resources to convince legislators from other regions in Alaska to place protections on lands and waters in their own region. He said the BBNA supports additional protections for their waters and have passed numerous resolutions to that effect. Clean waters are the basis for their cultural wellbeing and putting food on the table. 5:12:15 PM KIM WILLIAMS, Executive Director, Nunamta Aulukestai, Dillingham, Alaska, suggested changes to SB 163. She said they are one of seven petitioners for the nomination of Koktuli River to be an ONRW. She said they are a 502(c)(3) non-profit and their mission is to protect the land, water, and air that will sustain their way of life for all generations. They advocate on behalf of more than 6,000 tribal and village corporation members in the Bristol Bay region. She thanked the chair for keeping SB 163 in committee for further work. One of her problems was with "only if" language on page 2, line 10. Their interpretation is that the legislature will never see ONRW because it has to meet the criteria on page 2 (1, 2, 3, 4, and 5). She wanted to know who determines "unique, ecological sensitive or important." She was also concerned that current state and federal protections are not sufficient and DEC will never find that current state and federal protections are not there. Additionally, on page 3 "recreational fishery" should include the recognition of subsistence fisheries. People in rural Alaska rely on subsistence and it's important to recognize not only recreational, but subsistence. One other problem is on the last page with the intent that it has to come before the legislature within 10 days and what happens if "no action or action is taken" needs to be defined. She reminded them that Tier 3 is about prohibiting the lowering of water quality and the reason they made their Koktuli submission is to not lower the water quality because of competing uses. Please keep this bill in committee until these issues are worked out. 5:14:38 PM SAM SNYDER, Trout Unlimited, Anchorage, Alaska, opposed SB 163. He said clean water is a critical component of the health of our fisheries and subsequently the businesses and interests they work with. Trout Unlimited with other businesses and tribes applied for ONRW status on the Koktuli River in 2012, because it sits at the head waters of Alaska's largest commercial sockeye fishery and home of Alaska's "legendary sport fishing rivers," which draw anglers, hunters and outdoor recreationists from around the world. This bill raises three concerns: 1. It places ownership of the resources that are to be managed at the best interest of all Alaskan into the hands of politicians. 2. It creates hurdles for securing ONRW designations that favor Alaskans and opening the door for the influence of other companies and lobbying interests. 3. Granting ONRW designation also creates a clear imbalance between managing Alaska's important resource for the benefit of Alaskans. This process should be clean, transparent and based on science. MR. SNYDER said SB 163 creates a more cumbersome process that discourages public involvement and raises the costs associated with proving the status, he concluded. 5:17:51 PM BRITTANY HOGAN, representing herself, Anchorage, Alaska, opposed SB 163. Outdoor recreation is one of the reasons she chooses to live Alaska and she finds great joy in being able to experience excellent trout and salmon fishing basically outside of her front door. It is exciting that Alaska has waters worthy of ONRW designation and it is clear they need to be protected. An ONRW designation is best carried out through the sound science of the DEC, not legislators in Juneau, she said. ERIC BOOTON, representing himself, Anchorage, Alaska, opposed SB 163. He moved to Alaska from Colorado after graduating from college, because it is such a pristine state and truly a dream come true. Alaska is known world-wide as one of the greatest sportfishing destinations, because of its intact ecosystems that allow salmon and trout to thrive. Water quality is a critical component of the health of our fisheries. MR. BOOTON said he and many of his fellow anglers have serious concerns about changing the responsibility for ruling making for ONRW from DEC to the legislature. That would put Alaska's resources in a game of political football while lobbyists are guaranteed to win over concerns of Alaska citizens, as amendments from the Alaska Miners' Association clearly demonstrate. He suggested leaving management of these resources and the determination of ONRW to the scientific experts at DEC. DEC is more accountable and consistent with these kinds of decisions. 5:21:11 PM JED WHITTAKER, representing himself, Anchorage, Alaska, opposed SB 163. He said, "We share Mother Earth. We share the air we breathe. We share the water." But SB 163 makes him feel like he lives in Flint, Michigan, because of their contaminated water issue. 5:23:43 PM HEIDI KRITZ, United Tribes of Bristol Bay, Juneau, Alaska, opposed SB 163 and its CS. She said the tribes in Bristol Bay are over 80 percent of its population. The tribal members still depend on a traditional subsistence way of life and they hope to continue to thrive in this region for years to come. MS. KRITZ said they have serious concerns about the process in all the versions of the bill. The previous bill lacked any provisions about a process by which the water designations would be made and left those decisions to the legislature. The proposed amendments, however, seem entirely concerned with the outcomes, more specifically avoiding a specific kind of outcome, a Tier 3 water designation. These amendments would put in place criteria so burdensome and cost prohibitive that they would essentially prevent an ONRW designation from ever being applied to any Alaska water body. Further, if DEC had the funds to conduct the review as described in the bill, it could take years, and the ultimate decision on any such designation would still belong to the legislature. The tribes do not support politicizing the determination of an ONRW. The decision should be based on science. JAMES SULLIVAN, representing himself, Douglas, Alaska, tacitly supported SB 163. He supports any effort that is open and transparent. He urged them to keep working on the bill. 5:29:22 PM DENNIS WATSON, Mayor, City of Craig, Juneau, Alaska, tentatively supported SB 163, but said it needs more work. Tier 3 appears to be a wilderness type designation and prohibits a lot of things. It could be an end run by the Environmental Protection Agency (EPA) around Congress. 5:30:53 PM MELANIE BROWN, representing herself, Naknek Native Council, Juneau, Alaska, said she is a member of United Fishermen of Alaska (UFA) and is a fourth-generation commercial permit holder in Bristol Bay. She is affiliated with the water body known as the Naknek River through her grandparents and ancestors. She and her children are supported not only economically through the commercial fishery, but she believes they exist because of the water and what it supports. MS. BROWN said a lot of people are treating the Tier 3 water designation as something that would limit resource use and development, when the water, itself, is a resource. 5:33:31 PM VICTORIA DEMMERT, President, Yakutat Tlingit Tribe, Yakutat, Alaska, opposed SB 163. She is a commercial setnet fisherman and a subsistence user and lifelong Yakutat member. Their concern is that there be a Tier 3, because they want clean water that can't be degraded. "There have to be places in this world where these things exist¼ The water is life to us." She had concerns about some of the barriers she sees, like who is going to do it, but she didn't want "the whole business of the Tier 3 to be lost....Alaska needs it as a state." She thought the DEC would be best for processing the designations. 5:36:37 PM GUY ARCHIBALD, Director, Southeast Alaska Conservation Council (SEACC), Juneau, Alaska, opposed SB 163. He said he is also the director of the Inside Passage Waterkeeper that is affiliated with the National Waterkeeper Alliance. He gets the impression that a Tier 3 designation is a very onerous thing to landowners. But people need to remember that the only thing a Tier 3 designation does is prevent permanent long-term or permanent degradation of water quality. Any activity on that water that does not create permanent degradation is allowed, like boating and fishing. Many states have gone through this process. If there is an existing permitted waste water discharge into a water body and it is designated a Tier 3, those discharges are grandfathered in. Also, temporary degradation is allowed for construction: there are exemptions for river restoration and flood control. "It's not going to stop industry," he said. But an industry seeking to discharge into a Tier 3 water would have to treat its water to the water quality criteria that exists in the water body. They would no longer be allowed to externalize the cost of doing business onto the public trust, but could seek alternatives to waste water discharge like land application. They could do deep well injection like the oil and gas industry does or recycle the water like the Pogo Mine does very successfully and profitably. "It is not a red-letter nail in the coffin of industry as it seems to be portrayed," Mr. Archibald concluded. Colorado has over 6,000 miles of Tier 3 waters and New Mexico has 2,000 miles and 29 lakes. Those states have active extractive resource businesses and their economies are doing well. "It needs to be a DEC process," he concluded. CHAIR GIESSEL, finding no further comments, thanked everyone and closed public testimony and held SB 163 in committee.