Legislature(2017 - 2018)GRUENBERG 120

04/12/2017 06:00 PM House FISHERIES

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06:02:26 PM Start
06:03:05 PM HB199
07:53:18 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed from 4/11/17 --
Heard & Held
Scheduled but Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 199-FISH/WILDLIFE HABITAT PROTECTION; PERMITS                                                                    
6:03:05 PM                                                                                                                    
CHAIR STUTES announced  that the only order of  business would be                                                               
HOUSE  BILL  NO.  199,  "An Act  establishing  general  fish  and                                                               
wildlife  permits and  major and  minor  anadromous fish  habitat                                                               
permits for  certain activities; establishing  related penalties;                                                               
and relating  to the  protection of  fish and  game and  fish and                                                               
game habitat."                                                                                                                  
6:03:31 PM                                                                                                                    
CHAIR STUTES  offered an opening  statement, paraphrasing  from a                                                               
prepared statement,  which read as follows  [original punctuation                                                               
     I am the  prime sponsor of this legislation  and I want                                                                    
     to  state  my  clear  intention on  the  record   I  am                                                                    
     putting this  bill forth in  order to begin  the public                                                                    
     process so  that this  concept can  be vetted  over the                                                                    
     interim, I do not intend  to move this legislation from                                                                    
     the House Fisheries Committee this session.                                                                                
6:04:49 PM                                                                                                                    
REID HARRIS,  Staff, Representative  Louise Stutes,  Alaska State                                                               
Legislature,  presented HB  199,  paraphrasing  from the  sponsor                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
     House Bill  199, the "Wild Salmon  Legacy Act," updates                                                                    
     Title   16Alaska's    fish   habitat   protection   and                                                                    
     permitting  law.  This  law guides  how  the  State  of                                                                    
     Alaska  permits  activities  and  development  projects                                                                    
     that may impact  wild salmon; however, the  law has not                                                                    
     been updated since Statehood.                                                                                              
     The bill  creates a  balanced and  efficient permitting                                                                    
     system  that   protects  Alaska's  wild   salmon  runs,                                                                    
     promotes responsible  development and gives  Alaskans a                                                                    
     greater  voice  in   major  permitting  decisions  that                                                                    
     impact wild salmon streams.  HB 199 provides regulatory                                                                    
     certainty  for  resource  development  companies  while                                                                    
     ensuring protection of salmon habitat.                                                                                     
     This  bill  is drafted  in  response  to a  letter  the                                                                    
     Alaska Board  of Fisheries sent  to the  Legislature in                                                                    
     January 2017  recommending it  modernize Title  16. The                                                                    
     Board of  Fisheries' action  came at  the request  of a                                                                    
     group  of  Alaskans  comprised  of  commercial,  sport,                                                                    
     subsistence and personal  use fishermen concerned about                                                                    
     the future of the salmon they depend on.                                                                                   
     Wild salmon  are a major  part of our  culture, economy                                                                    
     and identity in  Alaska. Alaska is the  last state with                                                                    
     healthy  populations  of  wild  salmon  and  this  bill                                                                    
     protects  the interests  of Alaskans  who rely  on wild                                                                    
     salmon for food, income and recreation."                                                                                   
     Given the importance of  Alaska's salmon fisheries, the                                                                    
     state  must  ensure  that related  laws  are  balanced,                                                                    
     predictable and fair in  both protecting salmon habitat                                                                    
     and  encouraging responsible  development. HB  199 will                                                                    
     create enforceable standards,  provide for public input                                                                    
     and expand the Department  of Fish and Game's authority                                                                    
     to  protect fish  habitat and  will safeguard  Alaska's                                                                    
     salmon fisheries into the future.                                                                                          
MR.  HARRIS  added  that  the   definition  of  anadromous  water                                                               
includes all waters of the state.                                                                                               
6:09:35 PM                                                                                                                    
EMILY ANDERSON,  Attorney, Alaska  Director, Wild  Salmon Center,                                                               
said  there are  five primary  limitations/deficiencies with  the                                                               
current  Title 16  statutes, which  HB 199  addresses.   First it                                                               
expands the jurisdiction of the  Alaska Department of Fish & Game                                                               
(ADF&G).  Current law requires  ADF&G to specify the water bodies                                                               
in the  state that  are important for  the spawning,  rearing and                                                               
migration of anadromous fish.   The directive has resulted in the                                                               
creation  of the  Anadromous Waters  Catalog (AWC).   The  agency                                                               
estimates  that less  than 50  percent of  anadromous waters  are                                                               
listed  in  the  AWC,  which  creates  a  jurisdictional  problem                                                               
because the AWC  functions as the trigger for  the requirement of                                                               
a fish habitat  permit.  The proposed bill  creates a rebuttable,                                                               
approach  for identifying  anadromous  waters.   Rather than  the                                                               
agency identifying  and generating  a list of  anadromous waters,                                                               
the  presumption  is made  that  all  waters are  anadromous  and                                                               
provides a means  for a water way to be  removed/exempted; a more                                                               
efficient  approach considering  that  the  majority of  Alaska's                                                               
waters are anadromous.   The proposed measure  does three things:                                                               
1)  expands agency  jurisdiction  and triggers  the fish  habitat                                                               
permit requirement  without forcing ADF&G to  sample every river,                                                               
lake, and stream  in Alaska; 2) allows an applicant  to request a                                                               
site-specific  determination that  a water  is not  anadromous if                                                               
they  do  not  believe  a  permit  should  be  required;  and  3)                                                               
regardless of how the presumption  is created, it provides a more                                                               
efficient system and saves costs.   She explained that sometimes,                                                               
private organizations receive grants  and sample waterways, which                                                               
can then  be nominated  for inclusion  in the AWC,  at a  cost of                                                               
approximately  $1,000   per  stream  mile.     With  over  20,000                                                               
waterways  in the  state, costs  can  mount quickly.   The  state                                                               
usually assumes the  liability, and in 2015 paid  for sampling in                                                               
the Bristol Bay region to survey  450 miles of streams, at a cost                                                               
of $550,000.  A change in  statute to create an anadromous waters                                                               
presumption would eliminate  this level of cost.   Second, HB 199                                                               
creates certainty in the permitting  process by creating guidance                                                               
for  how significant  adverse  effects to  fish  habitat will  be                                                               
analyzed  and mitigated.   Under  current  law, the  commissioner                                                               
shall issue a  permit unless the plans and  specifications of the                                                               
proposed project  are insufficient  for the proper  protection of                                                               
fish and game.  The "proper  protection of fish and game" is used                                                               
as a  general standard, with  no guidance or  definition provided                                                               
in statute or  regulation.  In addition, there  is no requirement                                                               
that projects  should be treated  differently based on  the level                                                               
of potential adverse effects to  fish habitat.  Fundamentally, it                                                               
creates  uncertainty regarding  how  the agency  might choose  to                                                               
impose protective measures, as well  as how proposed permits will                                                               
be  analyzed and  whether there  will  be restrictions  attached.                                                               
The  fix proposed  is HB  199,  is to  create a  two tier  permit                                                               
application system  to identify whether there  could/could not be                                                               
adverse  effects  to fish  habitat.    If ADF&G  determines  that                                                               
habitat degradation can be avoided  or minimized through specific                                                               
conditions  the  application  becomes  a  minor  permit,  and  if                                                               
potential  is significant,  it becomes  a major  permit requiring                                                               
further  scrutiny and  a detailed,  impact assessment,  for which                                                               
the  applicant  will  be  responsible  to pay.    Third,  HB  199                                                               
requires  public notice  for  all permits  and  creates a  public                                                               
process during  the review  of major permits.   Current  law does                                                               
not  require public  notice or  opportunity for  participation in                                                               
the permit  review process.  Generally,  permitting processes are                                                               
designed to  strike a  balance between  administrative efficiency                                                               
and transparency in  government, but currently such  a balance is                                                               
absent.    Further,  all  permits, whether  for  large  or  small                                                               
projects, are  treated the same  regardless of the  potential for                                                               
significant   adverse   effects   to   fish   habitat   and   the                                                               
sustainability of  fisheries.  The proposed  bill requires public                                                               
notice for  the minor  permits and  public notice  as well  as an                                                               
opportunity  for  public  comment,  during the  review  of  major                                                               
project  permits; inserting  balance  and  transparency into  the                                                               
6:18:52 PM                                                                                                                    
MS.  ANDERSON  said  the  fourth   point  HB  199  rectifies,  is                                                               
providing a  definite limit  to the adverse  effects that  can be                                                               
imposed on state  waters, and thus creating  a clear, unambiguous                                                               
standard for permit denial.   The current law, stipulating that a                                                               
permit  will be  issued  pending the  commissioner's decision  on                                                               
whether  there  is  proper  protection   of  fish  and  game,  is                                                               
nebulous,  as   previously  mentioned,   and  does   not  provide                                                               
appropriate certainty  to the process.   The proposed legislation                                                               
establishes  a clear,  upper limit  of allowable  damage to  fish                                                               
habitat.   In  concept, this  will open  the door  to development                                                               
while  providing a  backstop to  damage that  can be  incurred on                                                               
anadromous fish habitat (AFH).   The commissioner shall determine                                                               
that substantial damage  will occur if:  the  activity will cause                                                               
significant  adverse  effects;  the  adverse  effects  cannot  be                                                               
minimized using allowed mitigation  measures; and the significant                                                               
adverse  effects  are  such  that the  habitat  will  not  likely                                                               
recover in a reasonable period of  time based on the life history                                                               
of  anadromous  species, or  recover  to  a level  that  sustains                                                               
natural and  historic levels of  fish populations.   In addition,                                                               
HB 199  bans certain types of  mitigation that pose risks  to the                                                               
recovery  of  AFH after  the  project  is  complete.   Thus,  the                                                               
commissioner shall  not issue a  permit if recovery  requires any                                                               
of the  following:  necessitates  water treatment  in perpetuity,                                                               
replaces a  wild run  fish population  with a  hatchery dependent                                                               
population, or causes dewater or  relocation of a stream for more                                                               
than  five years.    The establishment  of  these parameters  are                                                               
expected to  result in the  promotion of  responsible development                                                               
while ensuring  the protection of  anadromous fish habitat.   The                                                               
fifth and  final element, is  that HB  199 adds tools  to enforce                                                               
permit  violations.   The  current law  provides  ADF&G with  the                                                               
option of  pursuing a misdemeanor penalty  for permit violations,                                                               
which requires the  involvement of the Department of  Law and can                                                               
be difficult  to pursue if  not a major offense.   The fix  in HB
199  authorizes ADF&G  to assess  civil penalties  and citations,                                                               
providing the agency flexibility  for enforcement of permits, she                                                               
6:24:53 PM                                                                                                                    
MIKE  WOOD, Board  President, Susitna  River Coalition,  said the                                                               
Susitna  hydro dam  project  has been  actively  opposed by  over                                                               
10,000  residents because  of the  impact  it would  have on  the                                                               
fisheries.   The Susitna  dam proposal provided  no type  of fish                                                               
passage, he  reported.   The creators  of the  state constitution                                                               
placed weight  on the need  to protect the fisheries  and habitat                                                               
on an  equal basis  with mineral  extraction, which  should never                                                               
become  overshadowed  by  potential   developments  such  as  the                                                               
Susitna hydro dam  or the Chuitna coal mine.   A balance needs to                                                               
be  struck that  provides assurances  and certainty  to those  on                                                               
both sides  of the permitting process;  resource conservation and                                                               
industrial  development.   The bill  would also  span changes  of                                                               
administration,  ensuring that  a given  political groups  policy                                                               
could not  hold sway.   He ended with  a quote from  Governor Jay                                                               
Hammond,  which states:    "Alaskans should  be  aware that  some                                                               
economic   growth  can   be  malignant   unless  development   is                                                               
environmentally sound, desired by most  Alaskans, and can pay its                                                               
own  way without  burdening the  state  and the  tax payer,  I'll                                                               
oppose that."                                                                                                                   
6:31:25 PM                                                                                                                    
GLENN  HAIGHT,  Executive  Director, Board  of  Fisheries  (BOF),                                                               
Alaska Department of  Fish & Game (ADF&G),  directed attention to                                                               
the  committee packet  and  the BOF  letter  addressed to  Senate                                                               
President, Pete  Kelly, and Speaker  of the House,  Bryce Edgmon,                                                               
1/19/17, and explained that it was  written in response to a non-                                                               
regulatory   proposal  requesting   that   the  board   recommend                                                               
legislative  action to  have elements  of the  sustainable salmon                                                               
fisheries  policy included  under  the Title  16  statutes.   The                                                               
board  responded, and  during the  October  meeting in  Soldotna,                                                               
Alaska,  heard comments  and received  written  testimony on  the                                                               
topic.   The outcome was  that the board found  sufficient cause,                                                               
which triggered  special committee meetings, and  resulted in the                                                               
letter before the committee.                                                                                                    
6:32:56 PM                                                                                                                    
REPRESENTATIVE  KREISS-TOMKINS   asked  if  the  letter   sets  a                                                               
precedent  for  the  board  weighing  in  on  habitat  permitting                                                               
matters, or is it a frequent occurrence.                                                                                        
MR.  HAIGHT responded  that there  are statutory  duties allowing                                                               
for this type  of action, and in 2009 the  BOF provided a similar                                                               
letter regarding the Bristol Bay refuge area.                                                                                   
6:34:35 PM                                                                                                                    
RON BENKERT,  Acting Manager, Habitat  Division, referred  to the                                                               
committee packet handout titled,  "Fish Protection Laws in Alaska                                                               
ADF&G  Statutory  Authority;  Salmon Policy  Forum,"  4/11/17  to                                                               
review the  authority held  by Alaska Department  of Fish  & Game                                                               
(ADF&G) for  fish and wildlife  habitat protection,  identify the                                                               
strengths and limitations of that  authority, and explain how the                                                               
authority is  applied regarding  fish habitat  permits.   He said                                                               
several agencies, in  addition to ADF&G, provide  permits for any                                                               
project that  involves fish bearing  streams, including:   Alaska                                                               
Department  of  Natural  Resources (DNR),  Alaska  Department  of                                                               
Environmental  Conservation (DEC),  US Army  Corps of  Engineers,                                                               
boroughs  and  municipalities, and  land  managers.   A  delicate                                                               
balance  must be  struck by  the habitat  division, to  allow for                                                               
resource development while protecting  the resource, he said, and                                                               
pointed out that  permitting today is very different  than it was                                                               
20  years ago.    The  agency conducts  and  gathers research  to                                                               
compile  technical reports,  which  are used  to update  guidance                                                               
manuals for use in evaluating  projects.  Examples he offered are                                                               
the new  blasting standards that  were recently field  tested and                                                               
issued.   Additionally,  the division  maintains a  memorandum of                                                               
agreement (MOA)  with the Department  of Transportation  (DOT) to                                                               
ensure  fish passes  are appropriately  installed  that will  not                                                               
restrict migration, such as culverts  which must now be installed                                                               
with simulated substrate  in the bottom.   The agencies effective                                                               
negotiation  process results  in  the majority  of permits  being                                                               
approved;  however,  the  original   application  may  look  very                                                               
different than what is eventually  permitted.  An applicant often                                                               
withdraws  their  paperwork  rather  than be  denied,  when  they                                                               
understand how the  regulations apply to their  project.  Turning                                                               
to the committee handout, page 6,  he provided a state map of the                                                               
six regions  where ADF&G, Habitat  Division offices  are located.                                                               
The  workload  priorities  include:    Title  16  permitting  and                                                               
enforcement;   field   work    that   includes   research,   site                                                               
inspections, and  AWC [anadromous waters catalog]  surveys; large                                                               
projects  that are  of  importance to  the  state; Alaska  Forest                                                               
Resources  and Practices  Act [Title  41, 2013]  enforcement; and                                                               
special area planning for critical habitat areas.                                                                               
6:41:51 PM                                                                                                                    
MR.  BENKERT said  there are  two primary  statutes that  Habitat                                                               
works under, which are the Fishway  Act [or Fish Passage Act], AS                                                               
16.05.841, 1959, and the Anadromous  Fish Act, AS 16.05.871.  The                                                               
Fishway Act was  instituted at the time of  statehood and applies                                                               
to anadromous  as well as  resident fish.   It requires  that any                                                               
obstruction  built  across  fish-bearing waters  will  provide  a                                                               
means for fish to pass.   The options for mitigation are archaic,                                                               
he opined, and include:  a lump  sum payment to the state for the                                                               
fish and  game fund; build,  operate, and maintain a  hatchery in                                                               
perpetuity, or pay  to expand, maintain, and  operate an existing                                                               
hatchery.     Today,  it  is  understood   that  production  fish                                                               
hatcheries are  not an  acceptable surrogate  for wild  run fish.                                                               
The positive  aspect of this act  is that it applies  to all fish                                                               
bearing streams  and all  fish species  and requires  a long-term                                                               
commitment  to  operate  and  maintain  any  structures.    These                                                               
measures  apply to  culverts, as  well  as dams  and other  large                                                               
projects.  The  limitations are  that  it  only applies  to  fish                                                               
passage,      and     the      mitigation     provisions      are                                                               
inappropriate/archaic.   Mr. Benkert  referred to  the Anadromous                                                               
Fish  Act,  stating  that  it  requires  that  the  waterbody  be                                                               
included in  the AWC,  specifying that  the waters  are important                                                               
for the spawning,  rearing, or migration of anadromous  fish.  He                                                               
reported that agency  biologist spend about six  weeks every year                                                               
in the field,  updating and adding waterbodies to the  AWC.  When                                                               
projects are  proposed, data is  often collected from  areas that                                                               
otherwise may  not have been  a focus.  Project  notification and                                                               
plan  submissions are  required before  work can  begin, via  the                                                               
permit  application,  and the  permit  can  then be  approved  or                                                               
denied.   Strengths of  the act  include that  it applies  to any                                                               
hydro  activity  and  to  any  life  stage  of  the  fish.    The                                                               
limitations  are  that jurisdiction  only  applies  to the  areas                                                               
below  the  ordinary high  waterline,  the  waterbodies that  are                                                               
included in the AWC, and only freshwaters.                                                                                      
6:47:21 PM                                                                                                                    
MR. BENKERT said the AWC is  online and anyone has access to view                                                               
the information.   It's  updated annually,  and signed  off-on by                                                               
the  lieutenant governor.   He  reviewed the  complete permitting                                                               
process,  to wit:    applicant submits  plans  to ADF&G;  habitat                                                               
biologist reviews  and consults  area staff;  the project  may be                                                               
permitted  as proposed  or modified  during  the review  process.                                                               
The review timeline  may be two days but is  generally 4-6 weeks,                                                               
and in  some instances years;  however, emergency  exemptions are                                                               
available under  AS 16.05.891 via  verbal/email approval  and are                                                               
followed-up  with  a  formal permit.    Permit  stipulations  may                                                               
include:   timing  windows to  minimize effects  on fish;  stream                                                               
diversion/bypass   pumping  to   allow   fish   to  pass   during                                                               
construction;   sediment    control;   revegetation    and   bank                                                               
stabilization; and fish passage provisions in perpetuity.                                                                       
6:52:47 PM                                                                                                                    
CHAIR STUTES  asked for  an estimation on  the percentage  of the                                                               
waterways included in the AWC.                                                                                                  
MR. BENKERT answered that it may  be 60 percent of Alaska waters.                                                               
The  surveyors are  focusing primarily  on  accessing the  larger                                                               
watersheds, as  helicopters are inevitably involved  and expenses                                                               
run  high.    The  road system  has,  understandably,  been  well                                                               
CHAIR STUTES asked when the cataloging was started.                                                                             
MR. BENKERT conjectured that it may have begun in the 1980's.                                                                   
6:55:31 PM                                                                                                                    
REPRESENTATIVE  TARR assumed  that  some projects  may require  a                                                               
National  Pollutant Discharge  Elimination System  (NPDES) permit                                                               
and a  Stormwater Pollution Prevention  Plan (SWPPP), as  well as                                                               
an  ADF&G permit  and  asked  if a  chronological  order must  be                                                               
followed  during  the  application  process  or  whether  overlap                                                               
MR.  BENKERT responded  that  DEC issues  the  SWPPP permits  and                                                               
deferral is made to them for water quality issues.                                                                              
REPRESENTATIVE  TARR   noted  that  the  permitting   process  is                                                               
reportedly slow,  but it  appears that there  may be  good reason                                                               
given all of the moving parts.                                                                                                  
MR.  BENKERT agreed  that there  are  many aspects  that must  be                                                               
worked with, prior  to a permit being issued,  as the evaluations                                                               
often require collaboration between multiple agencies.                                                                          
7:00:01 PM                                                                                                                    
TAYLOR  HORNE,  Environmental   Program  Manager,  Department  of                                                               
Transportation  & Public  Facilities (DOTPF),  directed attention                                                               
to  the committee  packet document  titled,  "DOT/PF Comments  on                                                               
HB199; How do  Title 16 ADF&G Fish Habitat  Permits Affect DOT&PF                                                               
Projects?," 4/7/17,  and paraphrased the contents,  which read as                                                               
follows [original punctuation provided]:                                                                                        
     Many  DOT&PF  projects   affect  creeks,  streams,  and                                                                    
     rivers  that  support  anadromous  fish.    Current  AS                                                                    
     6.05.871-.901 specifies  that all activities  within or                                                                    
     across  a  specified  anadromous waterbody  requires  a                                                                    
     permit  from ADF&G  before altering  or affecting  "the                                                                    
     natural flow  or bed"  fish stream.   This  is commonly                                                                    
     referred to as the "Title 16 Fish Habitat Permit".                                                                         
     DOT&PF  environmental,   engineering,  and  hydrologist                                                                    
     staff work  closely with ADF&G fish  habitat biologists                                                                    
     during  the project  development process  and Title  16                                                                    
     fish    habitat    permitting   process    to    create                                                                    
     transportation projects  that preserve or  improve fish                                                                    
     habitat  while improving  transportation infrastructure                                                                    
     for Alaskans.  For example,  DOT&PF works with ADF&G to                                                                    
     improve culverts  to allow for anadromous  fish passage                                                                    
     at every  opportunity; similarly, bridge  abutments and                                                                    
     piles are designed  to allow for the  natural meander o                                                                    
     fish streams and to increase fish habitat.                                                                                 
     DOT&PF  staff  value  the  input   of  the  public  and                                                                    
     resource  agencies throughout  the project  development                                                                    
     process.   Conversations  early in  project development                                                                    
     allow for  design modifications  to be  incorporated in                                                                    
     the  project, allows  the environmental  impacts to  be                                                                    
     accurately  analyzed  in  the  NEPA  document,  assures                                                                    
     compliance  with  our  federal  funding  partners,  and                                                                    
     gives  the public  and agencies  more opportunities  to                                                                    
     voice   their  concerns   and   improve  outcomes   for                                                                    
     anadromous  fish habitat.    In particular  discussions                                                                    
     with ADF&G fish habitat  biologist beginning at project                                                                    
     scoping,  continuing  through  the  NEPA  process,  and                                                                    
     concluding with  the Title 16 permitting  allows DOT&PF                                                                    
     to design  and build  projects that often  improve fish                                                                    
     The  department of  transportation would  value you  to                                                                    
     consider  whether it  would be  appropriate to  have an                                                                    
     exception for  major fish habitat permits  of major DOT                                                                    
     projects that have already undergone the NEPA process.                                                                     
7:09:24 PM                                                                                                                    
REPRESENTATIVE TARR referred to  the final suggestion asking that                                                               
an exception  be allowed for  major projects that  have undergone                                                               
the NEPA process  and asked whether such action  would be applied                                                               
based on a particular point in time.                                                                                            
MR.  HORNE  clarified  that  the  majority  of  DOT  construction                                                               
projects  have  a  well-defined   public  process  that  must  be                                                               
followed.   It  would helpful  to consider  a means  for current,                                                               
active  projects  to  be  exempted from  revisiting  any  of  the                                                               
processes  and   conversations  that  have  already   been  moved                                                               
7:10:55 PM                                                                                                                    
WADE   STRICKLAND,  Program   Manager,   Waste  Water   Division,                                                               
Department of  Environmental Conservation (DEC), testified  on HB
199,  paraphrasing  from  a prepared  statement,  which  read  as                                                               
follows [original punctuation provided]:                                                                                        
     My commentary is brief and  is meant to bring awareness                                                                    
     of  how  this  act   will  interact  with  certain  DEC                                                                    
     The  bill (HB  199)  creates  a rebuttable  presumption                                                                    
     that  all  fresh  waters   in  Alaska  are  anadromous.                                                                    
     Current  Alaska   Water  Quality  Standards   found  in                                                                    
     regulations  (18  AAC  70)  state   that  DEC  may  not                                                                    
     authorize mixing  zones in an  area of  anadromous fish                                                                    
     spawning.  Mixing  zones  are   authorized  by  DEC  in                                                                    
     wastewater  permits  and  are areas  in  surface  water                                                                    
     where  treated  wastewater undergoes  initial  dilution                                                                    
     and  mixing.  Under  the  proposal,  all  existing  DEC                                                                    
     permitted  wastewater  discharges  to  freshwater  with                                                                    
     authorized  mixing  zones  will be  out  of  compliance                                                                    
     unless a  site-specific determination is  completed and                                                                    
     rebutted by  Fish and Game  or additional  treatment is                                                                    
     added  to the  wastewater  facility. Accordingly,  many                                                                    
     communities  and  industry   statewide  that  discharge                                                                    
     treated wastewater  to freshwater  will likely  need to                                                                    
     engineer  and  fund  improvements to  their  wastewater                                                                    
     treatment facility to comply  with the requirements. In                                                                    
     addition, DEC  permit application reviews  are expected                                                                    
     to increase  in complexity as communities  and industry                                                                    
     work within the legal framework.                                                                                           
7:12:32 PM                                                                                                                    
REPRESENTATIVE  TARR asked  whether the  50 existing  mixing zone                                                               
permits would be grandfathered in.                                                                                              
MR.  STRICKLAND  responded  that grandfathering  in  the  permits                                                               
could  be  an option  and  clarified  that  there are  about  100                                                               
existing mixing zones  that would need to be  considered for such                                                               
CHAIR STUTES opened public testimony.                                                                                           
7:14:38 PM                                                                                                                    
MARLEANNA   HALL,   Executive  Director,   Resource   Development                                                               
Council,  stated  opposition  to  HB  199,  paraphrasing  from  a                                                               
prepared statement, which read as follows [original punctuation                                                                 
     In  brief,   RDC  is  a  statewide   trade  association                                                                    
     comprised  of individuals  and companies  from Alaska's                                                                    
     oil  and gas,  mining, forest  products, fisheries  and                                                                    
     tourism  industries,  as well  as  the  12 ANCs.    RDC                                                                    
     members are  truly the life-blood of  Alaska's economy.                                                                    
     We believe the best approach  to expand the economy and                                                                    
     generate new revenues for the  state is to produce more                                                                    
     oil,  attract  more  tourists, harvest  more  fish  and                                                                    
     timber, and mine more minerals.                                                                                            
     With regard  to House bill 199,  increasing uncertainty                                                                    
     and adding  additional, unnecessary  regulatory burdens                                                                    
     to community  and resource development  projects across                                                                    
     Alaska  with  little  to no  added  benefit  to  salmon                                                                    
     habitat is  not sound  policy.   This bill  will likely                                                                    
     delay, or even halt,  these projects and increase costs                                                                    
     for our  communities and private sector  and would send                                                                    
     Alaska further down on the regulatory-certainty scale.                                                                     
     On Monday, I  worked with 17 other  Alaskan entities to                                                                    
     develop a letter with some initial concerns:                                                                               
     The coalition  agreed that concerns  with HB  199 start                                                                    
     with  simple questions:   Why  is this  bill necessary?                                                                    
     What  is it  trying to  fix?  What is  the real  fiscal                                                                    
     The  letter   expressed  initial  overlying   areas  of                                                                    
     concern that this bill would seriously impact:                                                                             
     --Community   development      including  upgrades   to                                                                    
     infrastructure,   such    as   airports    and   roads,                                                                    
     construction  of wastewater  treatment plants,  natural                                                                    
     community growth, and more.                                                                                                
     --Economic  development    including  fish  processing,                                                                    
     timber harvests,  mineral extraction,  and oil  and gas                                                                    
     --A future  gas pipeline to transport  Alaska's natural                                                                    
     gas from the North Slope to markets.                                                                                       
     The intent  to safeguard  Alaska's salmon  fisheries is                                                                    
     an  objective  we  share  and  it  is  why  we  support                                                                    
     Alaska's    existing    rigorous   and    science-based                                                                    
     regulatory   system.   Shutting   down   economic   and                                                                    
     community  development is  a disproportionate  response                                                                    
     to a problem that doesn't exist.                                                                                           
     Those are just a few lines  from the letter I spoke of.                                                                    
     I have  a copy of the  letter, but it has  already been                                                                    
     submitted for  the record  and is on  BASIS.   It lists                                                                    
     all   18  signatories,   from   RDC   to  other   trade                                                                    
     organizations,  as  well  as Native  corporations,  and                                                                    
     others  who wanted  to  join after  I  submitted it  on                                                                    
     Monday are not listed.                                                                                                     
     In  conclusion,  my members  are  not  asking for  less                                                                    
     burdensome  regulatory  processes,  but we  do  request                                                                    
     that as the  state considers changes, it do  no harm to                                                                    
     Alaskan    communities    and   responsible    resource                                                                    
     development projects.                                                                                                      
     Members of  the HFSH  committee, I  urge you  to reject                                                                    
     this  legislation, as  it is  fundamentally flawed  and                                                                    
     poses a grave threat to Alaska's economy.                                                                                  
7:18:29 PM                                                                                                                    
LINDSEY  BLOOM stated  support for  HB  199 and  said entry  into                                                               
statehood was spurred  on by the interest to  control the fishing                                                               
resources.   The Constitution of  the State of Alaska  provides a                                                               
powerful  framework   for  fisheries,  which,  she   opined,  "is                                                               
probably why  we continue  to be  the last  state in  the country                                                               
with robust,  economically viable  salmon fisheries."   Title 16,                                                               
provides  the  Alaska  Department  of Fish  &  Game  (ADF&G)  its                                                               
authorities,  and  one  sentence guides  the  permitting  process                                                               
regarding habitat, which she paraphrased  as:  "You shall issue a                                                               
permit so long as that  permit provides for the proper protection                                                               
of fish and  game."  Searching statute,  policy, and regulations,                                                               
she  reported that  the definition  of "proper  protection," does                                                               
not  exist,  and  suggested  that  this  may  be  the  overriding                                                               
problem.  Industry may have a  knee jerk reaction to the proposed                                                               
legislation and insist  that no problem exists;  however, if your                                                               
culture or  economic way  of life depends  on the  fisheries, not                                                               
having proper  protection defined does  pose a problem  and needs                                                               
to be fixed.                                                                                                                    
7:22:53 PM                                                                                                                    
REPRESENTATIVE EASTMAN  asked for  further reasons that  the bill                                                               
should be considered necessary.                                                                                                 
MS.  BLOOM pointed  out that  the multi-agency  coordination work                                                               
and  complexity involved  for permitting  large projects  creates                                                               
several  problems.   Also,  requirements  are  not in  place  for                                                               
public notices involving the issuance  of permits related to fish                                                               
habitat.   Thus, parties/entities interested in  what permits are                                                               
being  issued in  a given  area can  only receive  information by                                                               
filing  a request  for public  information  with the  department.                                                               
The technology exists  to easily remedy this  situation, she said                                                               
and  cited the  possible  use of  geo-locator  mapping.   Another                                                               
issue is  enforcement of fish  habitat permits,  which reportedly                                                               
poses challenges to the department.                                                                                             
7:25:29 PM                                                                                                                    
REPRESENTATIVE   KREISS-TOMKINS   referred   to   the   lack   of                                                               
transparency around issuance of  permits that requires the public                                                               
to forage  for information,  and asked  whether law  prohibits an                                                               
agency from instituting regulation to rectify the situation.                                                                    
MS.  BLOOM replied,  "To my  knowledge, there  is nothing  in law                                                               
that would  prevent that."  She  added that many of  the concepts                                                               
proposed  in the  bill are  currently  at the  discretion of  the                                                               
commissioner.   Placing the  concepts into  law will  establish a                                                               
non-arguable  certainty  for  the  maintenance  of  fish  habitat                                                               
7:27:32 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  referred  to the  Susitna  Dam  project,                                                               
which was permitted without allowing  passage for fish, and asked                                                               
whether it's possible for a dam  to be permitted, under Title 16,                                                               
without provisions for a fishway.                                                                                               
MS. BLOOM explained that the Susitna  Dam project has been put on                                                               
hold, and a Title 16 permit was  not issued.  The Fishway Act [or                                                               
Fish  Passage  Act AS  16.05.841]  includes  a mitigation  option                                                               
allowing for hatchery replacement of natural-run fish.                                                                          
7:29:15 PM                                                                                                                    
MIKE SATRE,  Manager, Government  and Community  Relations, Hecla                                                               
Mining, stated opposition  to HB 199, directing  attention to the                                                               
committee packet and the coalition  letter submitted by the trade                                                               
association.  The  stance held by the coalition is  that the bill                                                               
is  fundamentally  flawed  and should  not  proceed  through  the                                                               
process.  The  Board of Fish (BOF) has  requested enhanced public                                                               
comment, and  enforceable standards.   He opined  that regulation                                                               
could be  promulgated to satisfy the  needs, as an easy  fix, and                                                               
enforceable  standards  are  already  in  place.    Many  of  the                                                               
concerns appear  to focus on  changing the law  primarily because                                                               
it hasn't  been visited  in 60 years;  however, there  is nothing                                                               
compelling  such a  review  other than  fear.   Sweeping  reforms                                                               
should only happen  if there are documented  examples of problems                                                               
in the  existing law, and targeted  solutions.  He said  the bill                                                               
will  create significant  delays  to any  development within  the                                                               
state,  and a  one  size  fits all  approach  will preclude  site                                                               
specific  criteria  from  being appropriately  addressed;  salmon                                                               
habitat is unique  in each region as are the  projects.  He urged                                                               
the bill  be placed in the  "circular file," and not  run through                                                               
the legislative process.                                                                                                        
7:32:19 PM                                                                                                                    
REPRESENTATIVE JOSEPHSON  asked whether the Fishway  Act [or Fish                                                               
Passage Act AS 16.05.841] and  Anadromous Fish Act [AS 16.05.871-                                                               
.901]  are considered  a  one size  fits all  approach.   If  the                                                               
proposed  legislation replaces  portions  of  the existing  acts,                                                               
what makes HB 199 outstandingly different, he posed.                                                                            
MR.  SATRE answered  that the  acts  establish broad  overarching                                                               
goals that  serve to  protect the environment  and yet  allow for                                                               
resource  development.    The  largest  impact  of  the  proposed                                                               
legislation may  not be  on projects  requesting permits,  but on                                                               
community development.                                                                                                          
7:34:45 PM                                                                                                                    
KRISTIN  CARPENTER, Executive  Director,  Copper River  Watershed                                                               
Project,  stated  support  for  HB  199,  and  said  the  project                                                               
promotes sustainable  economic development, within the  region of                                                               
the Copper River drainage, by  ensuring fish passage ways for all                                                               
species.  She pointed out that  a construct is often posed around                                                               
jobs  versus  the environment.    However,  the environment  does                                                               
represent jobs,  including:  guiding services,  tourism, lodging,                                                               
canneries,  boat  manufacturing  and   repair,  as  well  as  the                                                               
commercial fishing  industry that has been  reported as providing                                                               
3,280 full time jobs, and $162  million in annual labor income to                                                               
Southcentral Alaska residents.   Salmon are a renewable resource,                                                               
generating economic and  recreational opportunities for thousands                                                               
of people.   Title 16  will be  improved by placing  into statute                                                               
upper  limits on  habitat  degradation, she  opined.   The  broad                                                               
statements  by  the  opposition  seem to  take  the  stance  that                                                               
permits would  be disallowed, and  projects shut down  across the                                                               
state, however,  based on ADF&G  testimony, the process  won't be                                                               
significantly  changed.   She urged  the committee  to take  into                                                               
account all  the opportunities for  jobs that  ecosystem services                                                               
support and the intangible, as  well as tangible, values realized                                                               
from cultivating the natural resources.                                                                                         
7:39:42 PM                                                                                                                    
GEOFFREY  PARKER,  Bristol  Bay Fishermen's  Association  (BBFA),                                                               
stated  opposition to  HB  199, pointing  out  that the  positive                                                               
parts  of   the  proposed  legislation   could  be   handled  via                                                               
regulation.   He  opined that  there are  eleven negative  points                                                               
being proposed, which  could prove harmful to  salmon.  Directing                                                               
attention to  the committee packet  and the  previously submitted                                                               
letter  dated  4/10/17,  he paraphrased  from  the  "CONCLUSION,"                                                               
pages  9-10,   which  read   as  follows   [original  punctuation                                                               
     (1)  removes the  beds of  anadromous  waters from  the                                                                    
     jurisdiction of  the Act so  as to reduce the  scope of                                                                    
     protection and permitting;                                                                                                 
     (2) requires regulations to create  a method of evading                                                                    
     permitting  by determining  that anadromous  waters are                                                                    
     "not  important," when  a method  already exists  under                                                                    
     the Administrative Procedure Act;                                                                                          
     (3)  allows  excavation  and  mining  of  the  beds  of                                                                    
     anadromous streams to  evade permitting, whenever ADF&G                                                                    
     was  unable  to  anticipate that  previous  activities,                                                                    
     such  as  water extraction  wells  around  a mine  pit,                                                                    
     would result in dewatering anadromous water;                                                                               
     (4)   eliminates   the   fish   themselves   from   the                                                                    
     jurisdiction of  the Act so  as to allow  blasting near                                                                    
     documented anadromous  waters, including by  Pebble and                                                                    
     the  mining  and  oil  and  gas  industries,  to  evade                                                                    
     permitting  whenever  pressure  waves would  harm  fish                                                                    
     embryos but leave the habitat intact;                                                                                      
     (5) presumes unnecessarily that  all surface waters are                                                                    
     anadromous  when modeling  after  the Forest  Practices                                                                    
     Act offers a more rational presumption;                                                                                    
     (6) limits existing  administrative and judicial review                                                                    
     by replacing the "interested  person" standard with the                                                                    
     "person adversely affected" standard;                                                                                      
     (7) limits  existing judicial  review by  replacing the                                                                    
     right to file an original  court action in the Superior                                                                    
     Court  sitting as  a  trial court,  which  has all  the                                                                    
     advantages  of   discovery,  production   of  evidence,                                                                    
     cross-examination, use of  expert witnesses, etc., with                                                                    
     an administrative appeal to  the Superior Court sitting                                                                    
     as an  appellate court reviewing an  established agency                                                                    
     record with  no opportunity  in an appellate  court for                                                                    
     discover,  production  of evidence,  cross-examination,                                                                    
     use of experts, etc.;                                                                                                      
     (8)   amends  the   Administrative  Procedure   Act  to                                                                    
     extinguish  the  applicability of  numerous  provisions                                                                    
     designed to assure a fair  hearing before ADF&G hearing                                                                    
     officers  on   matters  involving   reconsideration  of                                                                    
     decisions made under HB 199;                                                                                               
     (9) replaces full fees for  ADF&G doing field work with                                                                    
     reasonable  fees,  and   limits  ADF&G  to  "reasonable                                                                    
     requests" for  an applicant  to do  field work,  all of                                                                    
     which  puts the  applicant  in greater  control of  the                                                                    
     information that goes in decision-making;                                                                                  
     (10) bars mitigation  of unforeseen significant adverse                                                                    
     effects under  major permits whenever prior  damages to                                                                    
     the same water body already exist; and                                                                                     
     (11) invites further erosion of  the current Act if the                                                                    
     bill becomes an enacted initiative.                                                                                        
7:42:55 PM                                                                                                                    
REPRESENTATIVE TARR asked whether the BBFA is a group that                                                                      
supports the Pebble Mine.                                                                                                       
MR. PARKER responded, "Not in the least."                                                                                       
7:44:11 PM                                                                                                                    
KAREN MATTHIAS, Executive Director,  Council of Alaska Producers,                                                               
stated  opposition  to  HB  199,  paraphrasing  from  a  prepared                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
     The Council  of Alaska Producers (CAP)  appreciates the                                                                    
     opportunity  to  provide  comments  on  HB199  "An  Act                                                                    
     establishing  general  fish  and wildlife  permits  and                                                                    
     major  and minor  anadromous fish  habitat permits  for                                                                    
     certain  activities;  establishing  related  penalties;                                                                    
     and relating  to the  protection of  fish and  game and                                                                    
     fish and game habitat."                                                                                                    
     CAP is  a non-profit  trade association formed  in 1992                                                                    
     and serves as a spokesperson  for the large metal mines                                                                    
     and major  metal developmental  projects in  the state.                                                                    
     Bringing  together mining  companies  with interest  in                                                                    
     Alaska, the  Council represents and informs  members on                                                                    
     legislative   and  regulatory   issues,  supports   and                                                                    
     advances  the mining  industry,  educates members,  the                                                                    
     media,  and  the  general   public  on  mining  related                                                                    
     issues,   and   promotes   economic   opportunity   and                                                                    
     environmentally sound mining practices.                                                                                    
     CAP   opposes  HB199   because  it   would  shut   down                                                                    
     responsible  resource development  projects across  the                                                                    
     state,  jeopardize  the  continuation or  expansion  of                                                                    
     existing  operations,  delay  and  add  costs  to  road                                                                    
     construction and  other state  infrastructure projects,                                                                    
     and it  would inhibit  community development.  The real                                                                    
     fiscal impact of this bill would be staggering.                                                                            
     HB199 is the  wrong solution to a  problem that doesn't                                                                    
     exist.  Alaska already  has  a  world class  permitting                                                                    
     system   that  is   based   on   science  and   applied                                                                    
     consistently.  This  bill   creates  a  new  permitting                                                                    
     program  that is  more  stringent  than the  applicable                                                                    
     federal laws  without giving any  reason why  the Clean                                                                    
     Water  Act,   the  Endangered  Species  Act,   and  the                                                                    
     National   Environmental   Policy    Act   are   deemed                                                                    
     insufficient to  project fish  habitat and  wildlife in                                                                    
     HB  199  cannot be  fixed.  Please  recognize that  the                                                                    
     current, rigorous  permitting system  works and  do not                                                                    
     move  this  bill  any further.  Doing  otherwise  would                                                                    
     endanger Alaska jobs as well  as threaten any expansion                                                                    
     of our  state's limited  transportation infrastructure.                                                                    
     It  would   also  restrict  opportunities   for  Alaska                                                                    
     communities to grow and prosper.                                                                                           
7:46:13 PM                                                                                                                    
DEANTHA CROCKETT,  Executive Director, Alaska  Miners Association                                                               
(AMA), stated opposition to HB  199, paraphrasing from a prepared                                                               
statement,   which   read   as  follows   [original   punctuation                                                               
     AMA   has  approximately   1,500   members  and   we're                                                                    
     represented in  eight statewide branches, from  Nome to                                                                    
     Earlier  this week,  this Committee  received a  letter                                                                    
     signed  by eighteen  statewide business  organizations,                                                                    
     including AMA,  opposing HB  199.   This is  the letter                                                                    
     Ms. Hall  referenced earlier.   Ranging  from community                                                                    
     development  to tourism,  oil to  mining, this  diverse                                                                    
     group  of  entities  represents the  broadness  of  the                                                                    
     negative  impacts that  would result  of passage  of HB
     As to Alaska's  mining industry in particular:   all of                                                                    
     AMA's  members  operate  within the  State's  rigorous,                                                                    
     science-based  regulatory  process.    This  is  not  a                                                                    
     rubber-stamp  "easy," or  superficial process.   It  is                                                                    
     lengthy, rigorous,  and stringent.  A  key component of                                                                    
     this process  is the protection of  Alaska's fisheries,                                                                    
     and not just fish  habitat protection, but fish habitat                                                                    
     The  safeguarding of  fish species  at Alaska's  mining                                                                    
     projects is a  success story.  The bill  we are hearing                                                                    
     today,   HB   199,  suggests   significant   regulatory                                                                    
     problems that simply  do not exist.  HB  199 proposes a                                                                    
     massive rewrite of fish habitat  regulation that is not                                                                    
     only a solution in search of  a problem, but is an all-                                                                    
     out shut  down of  community and  economic development.                                                                    
     I appreciate  that the sponsor  has indicated  she does                                                                    
     not  wish to  shut down  any development,  therefore, I                                                                    
     encourage thorough  review of  the impacts of  each and                                                                    
     every provision suggested in the  bill.  The provisions                                                                    
     in HB 199  would ensure that development  of new mines,                                                                    
     oilfields,  wastewater plants,  highways, you  name it,                                                                    
     would  not be  built.    At a  time  of billion  dollar                                                                    
     deficits,  these are  not the  kinds of  bills Alaskans                                                                    
     should be pursuing.                                                                                                        
     Because the protection  of fish is a  high priority for                                                                    
     Alaska's mining industry, AMA is  and always has been a                                                                    
     willing  participant  for   workgroups  to  review  the                                                                    
     current process and find improvement.   However, HB 199                                                                    
     is severely  flawed, and should  be abandoned  in favor                                                                    
     of productive  discussion that enhances  our regulatory                                                                    
     process while continuing to grow the State economy.                                                                        
     We  do  have a  letter  on  the record  reflecting  our                                                                    
     position of NO on HB 199.                                                                                                  
7:49:05 PM                                                                                                                    
LOUIE FLORA,  Lobbyist, Alaska  Center, stated  tentative support                                                               
for HB  199, acknowledging  the industry  concerns.   However, he                                                               
said,  citizen  participation  and  involvement  in  the  habitat                                                               
protection process  is timely, as  the pendulum has swung  far to                                                               
the  other  side during  the  last  20-30  years.   The  proposed                                                               
legislation could  serve to help move  the needle back to  a more                                                               
moderate  level of  participation on  behalf of  the public.   An                                                               
important aspect  are the requirements  for public notice,  as an                                                               
average of  3,000 habitat permits  are issued per year,  and none                                                               
are  public noticed  despite being  for major  developments.   He                                                               
said he looks  forward to continued work on the  issue and future                                                               
7:51:19 PM                                                                                                                    
REPRESENTATIVE  KREISS-TOMKINS referred  to the  committee packet                                                               
and  the  BBFA  legal  memorandum, 4/10/17,  paraphrased  by  Mr.                                                               
Parker,  and expressed  interest  in hearing  comments from  user                                                               
groups  who  have  had  direct  experience  with  the  permitting                                                               
CHAIR STUTES  closed public  testimony, and  announced HB  199 as                                                               

Document Name Date/Time Subjects
HB199 Additonal Document G. Y. Parker Comments.pdf HFSH 4/12/2017 6:00:00 PM
HB 199