SENATE RESOURCES COMMITTEE  April 13, 2000 3:25 p.m. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Robin Taylor, Vice Chairman Senator Pete Kelly Senator Jerry Mackie Senator Lyda Green Senator Georgianna Lincoln MEMBERS ABSENT Senator Sean Parnell COMMITTEE CALENDAR HOUSE JOINT RESOLUTION NO. 60 Opposing the designation of millions of acres of Alaska as critical habitat for the Spectacled Eider and the Steller's Eider. -MOVED SCS HJR 60(RES) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HJR 60 - No previous Senate action. WITNESS REGISTER Mr. Scott Petsel Staff to Representative Gail Phillips Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Testified for sponsor of HJR 60. Mr. Richard Hannon U.S. Fish and Wildlife Service 1011 East Tudor Road Anchorage, AK 99503 POSITION STATEMENT: Explained why the USFWS is proposing to designate critical habitat for two eider species. Mr. Wayne Regelin Division of Wildlife Conservation Alaska Department of Fish and Game PO Box 25526 Juneau, AK 99802-5526 POSITION STATEMENT: Supports HJR 60. Ms. Marilyn Crockett Alaska Oil and Gas Association 121 W. Fireweed Lane Anchorage, AK POSITION STATEMENT: Supports HJR 60. Mr. Ken Freeman Resource Development Council for Alaska 121 W Fireweed Lane Anchorage, AK POSITION STATEMENT: Supports HJR 60. Mr. Ken Taylor Division of Habitat and Restoration Alaska Department of Fish and Game PO Box 25526 Juneau, AK 99802-5226 POSITION STATEMENT: Supports HJR 60. ACTION NARRATIVE TAPE 00-24, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:35 p.m. Present were Senators Green, Taylor, Pete Kelly, Mackie, Lincoln and Chairman Halford. The committee took up HJR 60. HJR 60-HABITAT FOR ENDANGERED EIDER DUCKS  MR. SCOTT PETSEL, legislative aide to Representative Gail Phillips, gave the following overview of HJR 60. The House Resources Committee sponsored HJR 60 at Representative Phillips' request. In February of 2000, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule change to designate large areas of Alaska, more than 75,000 square miles, as critical habitat for spectacled and steller's eiders. The eiders were listed as threatened under the Endangered Species Act (ESA) in the early 1990's. At that time, the USFWS did not consider the establishment of critical habitat areas for the eiders to be prudent because potential habitat loss was not considered a limiting factor in the recovery of the species. In September of 1999, the Department of Interior entered into an agreement to re-evaluate the critical habitat designations based on a lawsuit by a coalition of environmental groups. In addition, previous court rulings in similar cases overturned other USFWS determinations that the establishment of critical habitat areas was not prudent. Establishing critical habitat in these areas of Alaska will adversely affect resource development, subsistence and commercial fishing. This designation will slow up the federal permitting process by requiring an additional level of consultation with the USFWS. This will essentially duplicate the level of protection already afforded under Section 7 of the ESA and allow an additional opportunity for filing a third party lawsuit to halt, slow, or discourage development and investment in these regions. Additionally, certain federal permit applications that meet Section 7 requirements are simply not allowable by law in critical habitat designated areas. HJR 60 resolves that the Legislature oppose the designation and asks Governor Knowles to pursue legal action against the USFWS if the regulations are adopted. It also urges the Alaska delegation and Congress to assist in blocking the adoption of the final regulations. He asked committee members to support the resolution. Number 282 MR. RICHARD HANNON, Chief of Fisheries and Ecological Services, USFWS, gave the following testimony. The spectacled eider was listed as threatened under the ESA in 1993, and the steller's eider was listed in 1997. In both cases, the USFWS determined that it was not prudent to designate critical habitats because it could find no benefit in doing so. In March of 1999, the USFWS was sued by the Southwest Center for Biological Diversity and by Christians Caring for Creation, two environmental groups, for its failure to designate critical habitat for five California species and the two Alaskan species. In general, the USFWS has found that designating critical habitat is not beneficial to listed species and so far it has designated critical habitat for only 116 of the 1,206 species listed. Increasingly, however, environmental groups are suing the USFWS for not designating critical habitat. The courts in every case have determined that the USFWS has an affirmative responsibility to designate critical habitat for listed species under the ESA. In the future it will be the rule, rather than an exception, to designate critical habitat. SENATOR GREEN asked if the courts have decided that critical habitat should be designated in all but exceptional circumstances. MR. HANNON replied the courts have consistently directed the USFWS to designate critical habitat. The USFWS has consistently lost critical habitat lawsuits, even when it suggested that the designation of critical habitat would have little or no benefit to listed species. As a result of the USFWS's litigation history, it now acknowledges that there is some potential benefit in designating critical habitat. In addition, a large segment of the American public lives in cities and does not make the connection that a species needs a healthy habitat to survive. The designation of critical habitat clearly sends a message that a species cannot survive without a healthy habitat. MR. HANNON indicated that, to date, the USFWS has either been ordered to designate critical habitat or has entered into settlement agreements in which it designated critical habitat areas for 264 species. It has agreed in declarations to propose critical habitat for an additional 18 species. Currently, 28 active lawsuits have been filed against the USFWS for its failure to designate critical habitat for 301 additional species. The environmental community is saying that, at the time of listing, the USFWS should designate critical habitat. The courts have agreed. The USFWS will designate critical habitat as a matter of course when it lists species in the future. Number 535 SENATOR GREEN asked whether Congress has considered taking action to lessen the potential for these types of lawsuits. MR. HANNON answered he is not aware of any actions that Congress has taken to limit the citizens' right to sue the federal government under the ESA. The USFWS has supported legislative changes regarding the way critical habitat should be designated but numerous attempts to reauthorize the ESA have failed. MR. HANNON continued his testimony. In September of 1999, the USFWS entered into a settlement agreement with the plaintiffs to re-evaluate critical habitat designations. It agreed to finalize any proposals to designate critical habitat for the spectacled eider by February 1, 2000 and for the steller's eider by March 1, 2000. If the USFWS determined that such a designation was prudent, it would finalize those designations by December 1, 2000 and January 5, 2001, respectively. On February 8, the proposal to designate critical habitat for the spectacled eider was published. MR. HANNON referred to a map of the critical habitat area and publications prepared by the USFWS entitled "Proposed Critical Habitat for the Steller's Eider in Alaska" and "Proposed Critical Habitat for the Spectacled Eider in Alaska." He reviewed briefing papers in both reports that cover the nesting, molting and wintering patterns and habitat of both species in Alaska. He commented that the area is enormous and that this designation is the first in Alaska by the USFWS. Because of the lawsuits, the USFWS is changing the way it does business in regard to critical habitat. CHAIRMAN HALFORD asked Mr. Hannon to specify what this designation will mean in regard to open federal land, federal land in a restricted category, state tidal and submerged lands, and other state and private lands. He pointed out that the designation will obviously not have as much of an impact on a federal wildlife refuge as it will on private land. MR. HANNON agreed. He explained that the critical habitat designation does not create a park, a preserve or a refuge. It does not change or limit the rights of private citizens, Native landowners or the State of Alaska. The designation does not allow the federal government to access any of these lands without prior approval. The designation emphasizes that all species require healthy habitats upon which to live and that they cannot survive without it. The only regulatory impact of a critical habitat designation is that federal agencies must ensure when they fund, undertake, or authorize an activity within a designated critical habitat that the project does not destroy or adversely modify critical habitat or that the project does not jeopardize the continued existence of a listed species. MR. HANNON clarified that the designation of the steller's and spectacled eiders' critical habitat means that the U.S. Corps of Engineers, the U.S. Forest Service, the Bureau of Land Management, or any other federal agency that undertakes or authorizes a project within the habitat must consider how the action will affect the two species. It does not mean that the project must stop, it means that, under Section 7 of the ESA, the USFWS must review the projects and their impacts. The USFWS will make a determination about whether those projects will jeopardize the continued existence of the listed species. MR. HANNON pointed out that since these two species have been listed, the USFWS has reviewed about 100 projects that might impact either the steller's or spectacled eiders. The USFWS found that the impact of the projects did not rise to a level that would jeopardize the two species. Even without designation of critical habitat, the USFWS has the affirmative responsibility to make sure that projects do not jeopardize species. This designation will not result in additional layers of protection placed on federal land. If the USFWS undertakes an activity on the Yukon Delta National Wildlife Refuge, it will have to consider the impacts of that activity on the two eider species. It will also have to determine whether the activity will compromise the species' habitat to a point where the species will no longer be able to use it. For example, the private landowner who is planning an activity on private land will not need a permit from the federal government if no federal money is involved. But, under current law, a private landowner who is planning a housing project in Barrow with federal funding has to consider the impact on the species because it was listed as threatened under the ESA. A USFWS determination will have to be made as to whether or not that housing project will adversely modify or render the entire critical habitat area unusable by the two species. The USFWS does not believe it is likely that it would determine that the use of those five acres will destroy or compromise an entire critical habitat area. Number 1440 SENATOR TAYLOR asked if the USFWS has to take into account the cumulative effect. MR. HANNON said yes, but the USFWS has to do that anyway because the species is listed. In the 200 times the USFWS has had to make such determinations, it has never determined that an activity would jeopardize a species. SENATOR TAYLOR asked Mr. Hannon to discuss the impacts of drilling on the National Petroleum Reserve. MR. HANNON explained that first the USFWS would have to look at the direct and indirect effects of the infrastructure associated with the installation of the drilling pad on the ducks. The USFWS must look at the species and its habitat because the two cannot be separated. The USFWS has reviewed several projects on the North Slope and determined that the impacts would not jeopardize the species. MR. HANNON informed committee members that the USFWS's public comment period was originally scheduled to close at the end of May, but two entities have requested an extension. As a result, a notice that the comment period will be extended to June 30 should be published in the Federal Register next week. The USFWS has held meetings in Toksook Bay, Chevak, Barrow, and Nome and meetings have been requested by five communities on the North Slope, which will be scheduled. If other communities request hearings, the USFWS will accommodate as many as possible. During this comment period, the USFWS is looking for information about the duck, its habitat, and the species' distribution that can be considered. The USFWS has not had many dealings with critical habitat in Alaska, nor have many other people. There is a misconception that this is a federal lockup of land - that is not the case. Most of the prohibitions that come under the ESA are precipitated by the listing of a species. The analysis for looking at whether critical habitat is adversely modified or destroyed is really duplicative of the analysis that must occur anyway to determine whether an activity will jeopardize the species. CHAIRMAN HALFORD asked what the primary causes of the natural mortality of the two species are. He clarified that he was speaking about mortality on a year-to-year basis rather than over the long term. MR. HANNON answered in the past both species were hunted for sport and subsistence. CHAIRMAN HALFORD asked if they are still being hunted. MR. HANNON replied not since 1991. CHAIRMAN HALFORD asked if any eggs are taken. MR. HANNON said the USFWS believes that some egg take is going on, but for the most part the USFWS is getting tremendous cooperation from the Native villages and people are not taking the eggs. CHAIRMAN HALFORD asked what is causing the mortality on a year-to- year basis. MR. HANNON answered it is from predation, weather and climatic factors, and a whole host of things that can affect the survival of all waterfowl. CHAIRMAN HALFORD asked whether the USFWS is sure that all other factors are under maximum positive control before it applies this rule, which says that 30 acres must be set aside for every nest. MR. HANNON said he did not understand. CHAIRMAN HALFORD said he calculated a radius of 656 feet so the area would equal 30.07 acres per nest. He said he is concerned that the USFWS has done everything else in terms of limiting damage to the species before it sets aside that land. MR. HANNON said that the USFWS identified some causes for the decline of both species when they were listed. With respect to the spectacled eider, the USFWS identified a 96 percent decline in the Y-K Delta population from the 1970's to the 1990's based upon waterfowl surveys. CHAIRMAN HALFORD asked if any recovery has occurred since the two species were listed. MR. HANNON stated he is not sure whether the USFWS has seen much of an increase at all. SENATOR TAYLOR referred to the USFWS briefing paper and read, Between the '70s and the '90s, spectacled eiders on the Y-K Delta declined by 96 percent, from 48,000 pairs to fewer than 2,500 pairs in 1992. Based upon surveys conducted during the past few years, the Y-K Delta breeding population is estimated to be about 4,000 pairs. He said that amounts to almost a 100 percent increase in the last eight years. MR. HANNON agreed it has increased. SENATOR TAYLOR continued to read, "The most recent population estimate on the North Slope is currently 9,488 (plus or minus 1,814 birds). North Slope eiders have no clear population trend." MR. HANNON explained the USFWS does not have the same baseline data for the North Slope. SENATOR TAYLOR indicated the trend on the Y-K Delta shows a dramatic increase. He asked what a normal rate of increase on that population would be. MR. HANNON was not sure. Number 1790 SENATOR TAYLOR surmised that the USFWS did not know what the populations were 30, 50, or 100 years ago. MR. HANNON said that is correct and explained that the USFWS has anecdotal information that suggests that both species were much more common than they are today. He noted there is no data to say there has been a 20 or 50 percent decline or increase on the North Slope. CHAIRMAN HALFORD asked if these species are protected throughout the entire system. MR. HANNON said they are. SENATOR TAYLOR pointed out they are only protected on a section of Alaska and that their larger current breeding range is in Russia. He asked what is being done to stop the Russians from hurting the eiders. MR. HANNON replied the spectacled eider is listed as threatened throughout its range, which means wherever it exists, and that includes Russia. Data on the Russian population shows it has been very stable to increasing. With the break-up of the Soviet Union, the USFWS has received reports about increased hunting, so it is in the process of trying to find out to what extent the eiders are being hunted. In the case of the steller's eider, the Alaska population is the only population listed under the ESA. SENATOR TAYLOR asked how large that population is. MR. HANNON said it is fairly large. SENATOR TAYLOR noted about three-quarters of the snow goose population that travels down the West Coast flyway actually nests in islands in Russia, such as Wrangell Island. He noted that when the Russians put cows on that island, the foxes decimated that population. He asked if snow geese are listed as endangered. MR. HANNON offered to find out. SENATOR TAYLOR noted that the briefing paper contains assumptions about predation and other causes for population loss, such as lead poisoning caused by eiders eating lead shot, which was documented on the Y-K Delta. He said he finds it hard to believe the USFWS found many of those cases because it would take thousands of hunters to shoot enough shot for 9,000 birds to find. MR. HANNON clarified that it is illegal to hunt with lead shot. He noted it was used for many years to hunt waterfowl and that lead shot gets deposited in the wetlands. Many wetlands in Alaska are underlaid by permafrost so the lead does not sink and remains in the zone where the ducks can ingest it. In studies done on the Y-K Delta, the USFWS found that up to 60 percent of ducklings have elevated levels of lead in their blood. He repeated that the decision to list these birds was made some time ago. That decision is not being revisited now; the issue is whether and which critical habitat is appropriate to conserve these birds. There is no smoking gun that can explain why these populations have declined. The USFWS believes lead shot is a possibility as well as increased predation because as some of the goose populations have declined, the predators are moving and looking at other prey to eat. Also, the waste management practices in some of the communities in these areas allow a larger number of species to survive through the winter, which results in increased predation. Global warming and climate change may be affecting these species. The USFWS plans to do the best it can to recover the species, but it cannot control all the variables. He believes that if he were to be invited back to speak to the committee three years from now about what this designation has done, he would have to say the USFWS has found no perceptible change. The USFWS will continue to do business the way it always has, and the determination of whether or not an action will jeopardize a species will continue to be made. If the USFWS finds that a project will jeopardize the species, it will probably also find that the project will affect the habitat as well. Right now this is new to the USFWS. The allegation that this designation is a federal land grab is not true. Number 2101 SENATOR TAYLOR asked why the USFWS did not let the lawsuit filed by Christians Caring for Creation go to court. MR. HANNON replied the USFWS has been sued on many occasions about critical habitat. The USFWS determined, at the time most species were listed, that it was not prudent to designate critical habitat. It has been through many similar lawsuits and, in every case, the USFWS lost and was ordered by the courts to designate critical habitat. The USFWS counsel advised against fighting this case, so the USFWS settled out of court. SENATOR TAYLOR asked whether an additional level of permitting will have to be accomplished if this designation occurs. Number 2174 MR. HANNON said it will not. He explained that when an activity is going to be undertaken that involves a federal agency, a determination is made as to whether the activity will affect the listed species or its designated critical habitat. The result of that deliberation is a document called a "biological opinion." That biological opinion must conclude whether or not it is going to jeopardize the listed species. With the designation of critical habitat, a second decision must be made: will the activity adversely modify or destroy critical habitat? Those two decisions are made in the same document and there is no additional time for processing a permit or undertaking this analysis. It is all done simultaneously. SENATOR TAYLOR asked how the farmer who was plowing his field in California that is critical habitat for the kangaroo rat got thrown in jail. MR. HANNON replied that case made national news but he is not 100 percent familiar with it. He noted that often the media does not tell the whole story. He thought it had more to do with the fact that species were being taken as a result of that activity and not because it was a critical habitat area. He offered to get the facts for Senator Taylor. SENATOR TAYLOR asked Mr. Hannon to do that and said he is also aware of a man in Louisiana who was thrown in jail for putting a levy back into place on his farm after a flood. His family homesteaded the land for a few years, but it was then declared to be wetlands. He commented that, It's examples like that - and I could waste the rest of the afternoon and the evening giving you anecdotal comments on what I've experienced this year in Alaska on critical habitat for eel grass, for God's sake - on the largest coastline in the North American continent - we're sitting on top of it and the eel grass is very sensitive to folks like you and they worry about that a lot and so, as a consequence, I've watched one construction project after another either get tied up, get screwed up or somebody has to go buy off a federal bureaucrat or a state one by paying off to go to some other area to enhance that area because somebody decided that the aura of this particular place has now been disrupted. If you don't think we're paranoid when it comes to you people up here, you're crazy. We have been fighting nobody but the - what I refer to as 'eco-bigots' in the federal government who come up here and want to sanction this and sanction that. As a consequence, to say the least, we're paranoid but, you know, even paranoids have enemies and we know who ours are. SENATOR GREEN remarked that when she started reading the briefing paper, she recalled reading the book "Undue Influence: Wealthy Foundations, Grant-Driven Environmental Groups, and Zealous Bureaucrats that Control Your Future". She recognized the name of the Southwest Center for Biological Diversity and its long thread of rage against nearly every state in the Southwest. The group has ties back to a group named Earth Firsters who were the forerunners of the terrorists and who were funded by the Pew Foundation and some of the charitable trusts. These groups make claims in court that government agencies are not implementing the laws properly. TAPE 00-42, SIDE B SENATOR GREEN commented, And I had to go get this book to read it, because I want this to be part of the record. And it goes back to the spotted owl controversy in the Southwest - then into California - then Pew is also involved in the nearly $600,000 investment in the Alaska Conservation Foundation and the Alaska Coastal Rainforest, which I know Robin will be interested in. It killed two long term timber contracts that the U.S. government had begged for to stabilize the economy there and then it went on into Arizona, up the West Coast, and then - but the interesting thing is the restraining order was granted by U.S. District Judge Paul Rosenblatt - were also brought by environmentalists Peter Galvin of New Mexico. Interestingly enough, Galvin is another one of the Earth Firsters arrested and charged with felony and fined and then the judge let him off for $1 bail. But, this is the same guy who's now doing the Southwest Center for Biological Diversity and I cannot find the cite for the Christians Caring for Creation or I would also read that, but there are two other Christian, quote, community organizations mentioned in here, which - as little as I've read about this, because I can't stand it because I can't take enough blood pressure medicine to keep it in control, are inextricably woven and again, funded by the same people sitting in either New York, Boston, San Francisco or Seattle doling out money to organizations in every state to bring lawsuits against you. So I want that to be part of the record because it really ticks me off." MR. HANNON responded that the USFWS does not relish listing species. SENATOR GREEN noted that Mr. Hannon does not have to apologize to her on this issue. She said she agrees that the USFWS is besieged by people filing lawsuits and that judges in courts will not uphold the USFWS's decisions. She added the lawsuits are filed by environmental groups who are funded by wealthy people who have already made their money and sit on it and fund every local environmental organization in the State of Alaska. CHAIRMAN HALFORD asked whether the USFWS is negotiating to purchase any of the land in the habitat area in an effort to protect these species. MR. HANNON said he is not aware of any land acquisition program for the two species. He said the USFWS did a breakdown of land ownership within the proposed critical habitat areas and offered to send the committee copies. Mr. Hannon noted that a large percentage of the terrestrial landscape, both on the North Slope and on the Y-K Delta, is in some form of federal ownership. CHAIRMAN HALFORD thanked Mr. Hannon for his presentation and testimony. MR. KEN FREEMAN, Executive Director of the Resource Development Council (RDC), made the following comments. The RDC strongly supports HJR 60. The USFWS concedes that neither the spectacled or steller's eiders are habitat limited in Alaska. These waterfowl have not suffered due to a shortage of suitable habitat, therefore the sheer size of the proposed designation is a serious cause of concern for RDC members. The USFWS's stated reason for designating critical habitat for these two species is an order to respond to a lawsuit filed by two environmental organizations. A designation of this magnitude should be based on sound science and not a legal compromise. The protections afforded species listed under the ESA are substantial. Because the spectacled and steller's eiders are not habitat limited, the designation of critical habitat does little to significantly increase their protection under the ESA. Critical habitat can be used as a tool to slow economic development by individuals or organizations interested in acting as obstructionists. A few weeks ago, Greenpeace and the Sierra Club asked a federal judge in Seattle to ban the harvest of pollock and other bottomfish in areas throughout the Bering Sea and Gulf of Alaska where critical habitat for stellar sea lions has been designated. This is exactly the type of situation the RDC would like to avoid on the North Slope and in western Alaska. RDC members are committed to the responsible development of Alaska's natural resources. They believe the protections provided through a threatened listing are enough to safeguard the welfare of both species. The designation of more than 80 million acres of critical habitat goes too far. He offered to answer questions. MR. WAYNE REGELIN, director of the Division of Wildlife Conservation, ADFG, stated support for HJR 60. ADFG is in the process of preparing official comments opposing the proposed designation. ADFG agreed with the USFWS in 1997 when it concluded that no conservation benefit would accrue from the designation of critical habitat for either species of eider. There is no scientific basis for the ADFG or USFWS to change that position. The only thing that has changed is lawsuits and a mediation order that requires the USFWS to reconsider the designation of critical habitat. ADFG believes designating millions of acres of Alaska as critical habitat is not biologically defensible. Information about what might be critical habitat is lacking but that lack of information does not justify locking up areas where eiders may never have gone. Eiders are not a common species and they never have been. There is no conclusive evidence the populations have been any smaller than they ever were in Alaska. Most of the populations breed in Russia and come to Alaska periodically, for the most part staying off of the coast. The spectacled eider population has declined in the Y-K Delta but it appears to be recovering. There is no indication it has ever declined anywhere else. The only places in Alaska where steller's eiders occur on a regular basis in substantial numbers are in the Izembek and Nelson Lagoons during the molt. It is probably reasonable to consider those two small areas for critical habitat designation. ADFG believes all of the other areas, especially the North Slope, should be withdrawn. The spectacled eiders occur in sizable numbers in Norton Sound and Ledyard Bay during the molt and in the winter they raft in large groups of up to 80,000, in the Bering Sea between St. Lawrence and St. Matthews Islands. MR. REGELIN suggested those areas also be considered for critical habitat but he was not sure how a designation would occur in the middle of the ocean. ADFG feels strongly that designating large parts of Alaska will have a significant economic impact. The USFWS will have to do Section 7 consultations for every development project on federal lands in this huge area across the North Slope, much of it NPRA. The consultations could cause delays. What is of concern to ADFG is that if the USFWS makes a determination that the proposed action does not jeopardize the eiders, the USFWS will be taken to court. When it goes to court, the judge is likely to take into great consideration the idea that the area has been designated as critical habitat. HJR 60 may help the USFWS to designate only areas where it knows what birds have existed in reasonable numbers. SENATOR TAYLOR asked how sending the resolution to Alaska's congressional delegation will affect what the USFWS will do. MR. REGELIN explained that the USFWS has proposed a federal rule with all of these areas. It has an open comment period underway and it will be extended until June 30. Once the comment period is over, the USFWS will finalize actions; Congress does not have to do anything. SENATOR TAYLOR said it seems to him that HJR 60 will be sent to the wrong people - it should be sent to the USFWS as part of the comments. MR. REGELIN said he did not write the resolution. Number 1863 SENATOR LINCOLN noted the resolution contains a clause that speaks to pursuing legal action once the regulations are adopted and asked about the timing. Second, she pointed out she has no objection to HJR 60, but she questioned whether a fiscal note has been included if the Legislature is asking the Governor to pursue legal action. CHAIRMAN HALFORD said he did not think the resolution has a fiscal note. SENATOR LINCOLN pointed out it has a zero fiscal note. MR. REGELIN commented that the USFWS would be able to tell the committee when the public comment period will become final, but he is still hopeful that the USFWS will change its mind after hearing ADFG's comments. If it does not, ADFG will probably look at other alternatives. He believes the USFWS proposal will have a great economic impact on federal lands outside of refuges and on private lands. The ESA requires that an economic analysis be done before the USFWS can designate critical habitat areas and that analysis has not been done yet. He said he is not sure if that is why the process has been delayed until June 30. There being no questions, CHAIRMAN HALFORD took teleconference testimony. MS. MARILYN CROCKETT, Assistant Executive Director of the Alaska Oil and Gas Association (AOGA), made the following comments. There are a number of activities talked about today, which provide extensive protection for the eiders in the absence of the critical habitat designation. First, the private industry has done extensive research and surveys on its own part prior to development, especially on the North Slope. Second, the Section 7 consultation does provide a level of protection and answers a number of questions with regard to protection of species. With regard to the NPRA area, the environmental impact statement (EIS) for NPRA designated over 1,000,000 acres in the vicinity of Teshekpuk Lake as a spectacled eider breeding range land use emphasis area. The EIS also includes 79 stipulations to address and minimize the impacts of activities within that area. Furthermore, from the State of Alaska's standpoint, the best interest findings for lease sales also contain similar stipulations and mitigating measures. A whole stack of additional eider habitat protection mechanisms are currently in place without the designation of critical habitat. Given all of those factors, it is questionable what the value would be of a critical habitat designation. MS. CROCKETT said AOGA is particularly concerned about two areas. One, mentioned by Mr. Regelin, is that the USFWS has stated that the designation of critical habitat will have much impact on permitting activities however there is no doubt that the regulated community is just as concerned over the potential for third party lawsuits when agencies appropriately issue permits within a critical habitat area. Finally, the USFWS has stated numerous times that it does not believe there will be any additional prohibitions as a result of this critical habitat designation. Over the last several weeks, AOGA has found there were many permitting programs in place by agencies other than USFWS that typically prohibit permitting of activities in critical habitat areas. These prohibitions are sometimes the result of statutory prohibitions, sometimes they are included in program regulations, and sometimes they are simply agency policy. These outright prohibitions are absent the Section 7 consultations. One recent example is the new Corps of Engineers nationwide general permit program, which prohibits the use of these permits in critical habitat areas. SENATOR TAYLOR asked what portion of NPRA is set aside today as critical habitat for summer nesting areas for a different waterfowl species, which prevented the oil industry from drilling in those areas. MS. CROCKETT said she did not know but numerous areas within NPRA have been designated as critical habitat for both steller's and spectacled eiders. She repeated the one designation she is familiar with is the 1,000,000 acres within the Teshekpuk Lake area. SENATOR TAYLOR asked if the Teshekpuk Lake critical habitat area is for spectacled eiders. MS. CROCKETT said it is. SENATOR TAYLOR said Mr. Regelin thought it was for brant geese. He thought it might be a joint nesting area. Number 1572 MR. KEN TAYLOR, Director of the Habitat and Restoration Division of ADF&G, said if he could find any benefit in this proposed critical habitat area he would be testifying in support of the USFWS decision but he believes it will not be beneficial and it will be detrimental for the reasons Ms. Crockett testified to. This affects more than just federal lands; it affects all federal permits for activities on federal, state, or private lands. This will result in the public's ability to file suit not only under the ESA, in which the plaintiff would have to prove that use of five acres is affecting an entire habitat area, but also under the critical habitat status, which says that the five acre pad has affected five acres of critical habitat, which will be much easier. Those lawsuits involve a lot of ADF&G staff time and he does not want his staff chasing frivolous lawsuits at the expense of good, sound conservation practices. Number 1418 SENATOR TAYLOR, acting as Chair, announced there was no further testimony and that as soon as a quorum was present, the committee would take action on HJR 60. SENATOR LINCOLN asked Mr. Hannon to explain how he sees this issue panning out between now and when the decision is made. MR. HANNON explained that the final decision according to the settlement agreement will have to be made on spectacled eiders by December 1 of this year and for steller's eiders by January 5 of 2001. That is when the USFWS has committed to making a final decision. As stated earlier, the USFWS is in the process of extending the comment period through June 30. Public hearings will be held as requested. The USFWS is required to do an economic analysis as to what economic effects the designation of critical habitat will have incrementally. Once it is developed, a notice of availability will be published in the federal register and the public will have 30 days to comment. Once all comments are received, the USFWS will do an analysis of that information and it will make a final determination by the dates mentioned. SENATOR LINCOLN asked whether the USFWS is accepting written comments from the public or whether it is taking comments from people who reside in the area. MR. HANNON said the USFWS will accept any comments, written or oral. So far, five communities on the North Slope have requested public meetings. The USFWS is in the process of working with the communities to identify suitable dates. The USFWS is trying to schedule the meeting outside of the whaling season. Up until now, no other communities in the State have asked for a public hearing but the USFWS is open to doing so. SENATOR TAYLOR moved to conceptually amend HJR 60 as follows: beginning on line 27, following the word "Eider" insert "and be it FURTHER RESOLVED that the Alaska State Legislature urges the United States Fish and Wildlife Service to adopt final regulations that create no new critical habitat for eiders in Alaska." There being no objection, CHAIRMAN HALFORD noted that amendment would be incorporated into the Senate Resources CS. SENATOR LINCOLN said she was interested in Senator Taylor's comment that it may be a good idea to send copies of the resolution beyond the list of Alaska's congressional delegation. She suggested amending the resolution to add names. SENATOR TAYLOR said he assumed a copy would be sent to the USFWS. CHAIRMAN HALFORD noted that will be a conforming portion of Senator Taylor's original amendment to the CS. SENATOR TAYLOR moved SCS HJR 60(RES) from committee with individual recommendations. There being no objection, the motion carried. There being no further business to come before the committee, CHAIRMAN HALFORD adjourned the meeting at 4:45 p.m.