Legislature(2015 - 2016)BUTROVICH 205

02/15/2016 03:30 PM Senate RESOURCES

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03:30:35 PM Start
03:30:59 PM Confirmation Hearing: Board of Game
04:03:28 PM SB163
04:55:19 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmation of Governor's Appointees: TELECONFERENCED
Board of Game, Guy Trimmingham
-- Public Testimony on Appointee --
Heard & Held
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 163-NATL. RES. WATER NOMINATION/DESIGNATION                                                                     
4:03:28 PM                                                                                                                    
CHAIR  GIESSEL called  the meeting  back to  order and  announced                                                               
consideration of  SB 163, a  bill proposed by  the administration                                                               
related to water reservations.                                                                                                  
MICHELLE  HALE,  Director,  Division   of  Water,  Department  of                                                               
Environmental  Conservation (DEC),  Juneau, Alaska,  said SB  163                                                               
does two things. It makes it  clear that only the legislature has                                                               
the  authority  to designate  what  is  known as  an  Outstanding                                                               
National  Resource   Waters  (ONRW)  in  the   State  of  Alaska.                                                               
Secondly, it describes  the process that will be  used to collect                                                               
nominations  for those  waters  and  additional information,  and                                                               
then forward those for consideration to the legislature.                                                                        
She explained that ONRWs receive  the maximum level of protection                                                               
under the federal  Clean Water Act (CWA) that  requires states to                                                               
have two things: an  anti-degradation policy and anti-degradation                                                               
implementation  methods. The  State of  Alaska has  had an  anti-                                                               
degradation  policy on  the  books since  1997.  Its draft  anti-                                                               
degradation implementation methods were  developed in 2010. Those                                                               
are required by  the implementing regulations of the  CWA, but in                                                               
part, the state also developed those  because it was sued for not                                                               
having them.                                                                                                                    
MS.  HALE said  the  department  had gone  through  a process  to                                                               
develop  implementation  methods  in regulation  and  those  were                                                               
publically  noticed  in  2014.  Due to  the  volume  of  comments                                                               
received on  those regulations,  they went  back out  for further                                                               
public meetings in 2015.                                                                                                        
One element of those regulations  is the requirement for a method                                                               
to  nominate and  designate Tier  3 waters.  She reiterated  that                                                               
Outstanding National Resource Waters  are waters that receive the                                                               
highest level of protection under  the CWA. Once a designation of                                                               
a Tier 3  or ONRW is made, no additional  pollutants can be added                                                               
to  those waters,  except for  limited or  temporary degradation.                                                               
Limited or  temporary might be  construction storm water  that is                                                               
generated  when someone  is  building  a lodge  on  a river  that                                                               
received that designation.                                                                                                      
MS.  HALE  said the  real  crux  of the  ONRW  issue  is that  no                                                               
permanent  additional pollutants  can be  added to  those waters,                                                               
which means,  for example,  if there  is a town  on a  river that                                                               
becomes an  ONRW and they  discharge waste water into  the river,                                                               
they  can continue  to discharge  waste  water, but  if the  town                                                               
grows, the discharge  can't be increased. A  seafood processor on                                                               
that river would not be able  to start seafood processing if they                                                               
discharge waste  into the river. Similarly,  mining operations on                                                               
the river  or on tributaries  to the river  would not be  able to                                                               
discharge  waste  water  into  that river  if  it  increased  the                                                               
pollutant  load at  all. So,  the designation  of an  ONRW, in  a                                                               
sense, almost becomes a defacto land use decision.                                                                              
MS.  HALE said  the requirement  of the  CWA is  not that  states                                                               
designate ONRWs, but just that they  have a process for doing so.                                                               
That is  what she  is here  today to talk  about. This  bill says                                                               
simply that the  legislature will make that  designation, not the                                                               
During the  regulatory process  when they  were working  on draft                                                               
regulations, in  addition to receiving  a lot of comments  on the                                                               
regulations, one thing  was revealed as somewhat  of an ambiguity                                                               
in terms  of who has the  authority to make that  designation. In                                                               
looking  at the  Constitution,  it appears  that the  legislature                                                               
makes land  use designations. AS  46.03.080 gives the  agency the                                                               
authority  to make  water quality  standards decisions  including                                                               
water classifications. Because of  that potential ambiguity, they                                                               
believe it  is very important  to make it  very clear that  it is                                                               
the legislature, and  the legislature alone, that  will make that                                                               
In addition, the  legislature has a much broader  authority to do                                                               
far more  than just  Tier 3 designations;  it can  create special                                                               
management  areas and  state  parks.  If DEC  were  to make  that                                                               
designation, they would make the  Tier 3 designation but not have                                                               
the ability  to do other  things.  DEC  does have the  ability to                                                               
make  sure  that water  quality  is  maintained through  applying                                                               
water quality standards to discharge permits.                                                                                   
4:09:40 PM                                                                                                                    
She  said  that  DEC  has received  ONRW  application  for  three                                                               
different waters in  the State of the Alaska: one  is the Chilkat                                                               
River  near Haines,  another is  the Koktuli  River west  of Lake                                                               
Iliamna, and the  other is the entire Bristol  Bay Watershed. The                                                               
department  is not  acting  on  those right  now  because of  the                                                               
ambiguity in authority,  but a process is required  at some point                                                               
for designating those whether they are designated or not.                                                                       
4:10:15 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if the  language the  department was                                                               
relying on was Article 8  of the Constitution, Section 7, Special                                                               
Purpose Sites.                                                                                                                  
MS. HALE answered yes, along with Section 2.                                                                                    
SENATOR  WIELECHOWSKI  asked  if  she had  an  opinion  from  the                                                               
department's attorneys.                                                                                                         
MS.  HALE answered  that they  don't have  a formal  opinion, but                                                               
bits  of different  opinions from  different attorneys  that have                                                               
viewed this.                                                                                                                    
SENATOR WIELECHOWSKI  said he  thought this  issue hinges  on the                                                               
question of  whose authority it  is, is it the  legislature's, or                                                               
the DEC's.  It would be  a good idea to  get a final  decision on                                                               
what that is.                                                                                                                   
CHAIR GIESSEL said they will follow up on that.                                                                                 
SENATOR  STEDMAN  remarked that  if  something  as broad  as  the                                                               
Bristol Bay  Watershed or  the watershed  of Southeast  Alaska is                                                               
designated ONRW one could virtually shut down the entire state.                                                                 
MS.  HALE  responded that  there  are  broad implications  to  an                                                               
actual  designation. The  concern is  not just  the water  bodies                                                               
themselves,  but  the  tributaries  to those  water  bodies.  The                                                               
C.F.R. reads that the  water quality in a Tier 3  or ONRW must be                                                               
maintained  and protected.  So, if  there  was an  activity on  a                                                               
tributary that  then impacted the  water that  becomes designated                                                               
so that  it's not maintained,  then that activity would  also not                                                               
be allowed.                                                                                                                     
4:13:23 PM                                                                                                                    
SENATOR  STEDMAN  said  the  Chena  River  in  Fairbanks,  as  an                                                               
example,  has some  fish in  it and  a hatchery.  If it  had that                                                               
particular designation,  would that designation flow  all the way                                                               
down to the ocean?                                                                                                              
MS. HALE answered  that it is possible to  nominate and designate                                                               
segments  of waters,  and he  didn't  think that  just because  a                                                               
segment of  a river is  nominated that the nomination  would then                                                               
flow downstream. Of more concern  would be the upriver activities                                                               
that might result in the water  quality in that segment not being                                                               
maintained and protected.                                                                                                       
SENATOR STEDMAN asked  her how this designation  would be removed                                                               
by whoever has final authority.                                                                                                 
MS. HALE replied  that Code of Federal  Regulations (C.F.R.) Part                                                               
131.12 that  talks about  the necessity of  having a  process for                                                               
designating  these  waters  does  not describe  any  process  for                                                               
removing a designation, and she  couldn't find an example of one.                                                               
The  idea is  that this  is a  permanent designation.  She hadn't                                                               
found  any  court  cases  where  somebody  tried  to  remove  the                                                               
designation.  She  emphasized that  they  are  not talking  about                                                               
actually  doing  designations;  the  requirement  is  to  have  a                                                               
process for designating.                                                                                                        
SENATOR MICCICHE said he had  just read through AS 46.03.080 that                                                               
talks  about  the department  having  the  authority to  classify                                                               
waters, and  asked if he  misunderstood something in  her initial                                                               
statement about the statute.                                                                                                    
MS. HALE answered the department  has always read that segment of                                                               
its  statutory  authority  as  having  the  ability  to  classify                                                               
waters, which they do under  water quality standards. They do not                                                               
believe the intent  when that statute was passed  was to actually                                                               
classify them in terms of an ONRW.                                                                                              
SENATOR MICCICHE  said he didn't  look at the  legislative intent                                                               
and asked  if the department  thinks there  is a bar  it couldn't                                                               
reach   and   suddenly   the  responsibility   shifted   to   the                                                               
MS. HALE answered the DEC has  never read that statute to mean it                                                               
would be able to designate ONRWs.  They have read it to mean that                                                               
the department  can set water  quality standards, which  it does,                                                               
and  can classify  waters,  which it  does  through a  regulatory                                                               
process. By  "classifying waters"  she means classifying  a water                                                               
for  a certain  use,  for example,  this water  can  be used  for                                                               
drinking and  swimming, and not  doing this designation  of ONRW.                                                               
That  was  pointed  out  and  that is  where  lies  part  of  the                                                               
ambiguity.  Draft regulations  that  were  publically noticed  in                                                               
2014  culminated   with  the  legislature  actually   making  the                                                               
designations. So, even  at that time the  agency wasn't proposing                                                               
to make that designation.                                                                                                       
4:18:05 PM                                                                                                                    
SENATOR  STOLTZE  asked if  any  vendors  had been  consulted  in                                                               
developing this legislation and if they have an opinion.                                                                        
MS.  HALE  answered  yes;  they   have  been  doing  considerable                                                               
outreach  to affected  industries and  to some  of the  NGOs that                                                               
have a lot of interest in the  subject, and it's fair to say that                                                               
some are very supportive of this  and others think the bill needs                                                               
more  clarification. Of  the environmental  NGOs, while  some are                                                               
worried  about the  legislature  being the  body  that makes  the                                                               
designations,  others are  very pleased  to see  the transparency                                                               
and the public process that would be involved.                                                                                  
SENATOR STOLTZE  said he has tried  to get the normal  up or down                                                               
response  from  industry,  but  he  was just  getting  a  lot  of                                                               
caution, "an amber alert."                                                                                                      
4:20:01 PM                                                                                                                    
MS. HALE responded that the  department has done outreach and had                                                               
some conversations  "wondering if  we should add  more clarifying                                                               
language  to  the  legislation"  and it  is  working  with  those                                                               
members of industry now.                                                                                                        
SENATOR  COGHILL said  it looks  like  she is  talking about  the                                                               
state's authority on national parks,  wildlife refuges, and water                                                               
that are  protected and  how they would  be nominated  under this                                                               
C.F.R.  It really  becomes a  land use  decision, which  properly                                                               
should involve  the legislature.  He asked  if DNR's  Division of                                                               
Mining, Land and Water has had any input.                                                                                       
4:22:20 PM                                                                                                                    
MS. HALE  answered that  DEC had been  communicating quite  a lot                                                               
with DNR,  because one  of the  questions that  has arisen  is if                                                               
water  rights  are  being  considered  when  they  look  at  this                                                               
possible designation.                                                                                                           
SENATOR COGHILL said  they should get DNR's  perspective and that                                                               
maybe this  is a  co-management issue.  He didn't  understand the                                                               
criteria for  the designation part,  but it  could be one  of the                                                               
key elements of that issue, and  all managers should be a part of                                                               
MS. HALE agreed  that the criteria for ONRW  designation are very                                                               
broad  and if  an attempt  is made  to define  what they  are, it                                                               
would be very  hard to satisfy all the possibilities.  One of the                                                               
things the bill  does in the definition of an  ONRW is says water                                                               
that   "the  legislature   decides  is   important,  unique,   or                                                               
ecologically significant."                                                                                                      
She  said   Washington,  Oregon,  Idaho,  and   Nevada  have  not                                                               
designated  any  ONRWs;  Montana  has designated  all  waters  in                                                               
national parks as ONRW. California  has two ONRWs: Lake Tahoe and                                                               
Mono Lake (an  alkaline hypersaline lake in a  closed basin). So,                                                               
in talking about  criteria, one can't mention  high water quality                                                               
for example, because Mono Lake  is very saline. It doesn't really                                                               
meet any kind  of easy criteria for defining. That  is one reason                                                               
the  criteria  are  kept  quite  broad  and  language  gives  the                                                               
legislature the authority to actually make that decision.                                                                       
SENATOR COGHILL  said he was  concerned the department  will come                                                               
to the  legislature and say you  have to do this  because federal                                                               
law requires it. He is just suspicious.                                                                                         
MS. HALE assured him that the  department would not do that. It's                                                               
their responsibility  to make sure  a process is there,  and then                                                               
it is up to the legislature to follow that process or not.                                                                      
CHAIR GIESSEL  said page  2 of  the DNR  fiscal note  states that                                                               
their  fiscal  impact could  be  significant  should an  ONRW  be                                                               
SENATOR  WIELECHOWSKI   said  that  is  his   point.  The  fourth                                                               
paragraph on that page of the  fiscal note says: "Under the bill,                                                               
the land  or water use  application adjudication  processes could                                                               
become more  complicated." And the  first paragraph  says: "could                                                               
be  significant  should an  ONRW  be  nominated and  subsequently                                                               
designated by  the legislature  and later  signed into  law." The                                                               
department's interpretation  is that it's for  the legislature to                                                               
decide,  which   he  assumed  would   mean  they  would   pass  a                                                               
resolution, which  would not be  signed by the  governor. Because                                                               
if the  constitution says it's  up to the legislature,  he didn't                                                               
know that they would involve the executive branch at that point.                                                                
MS. HALE responded  that she didn't have that  level of knowledge                                                               
of the exact process the legislature would go through.                                                                          
SENATOR WIELECHOWSKI requested that  in writing, because if their                                                               
interpretation  is it's  the  legislature's  authority, it  seems                                                               
that would be said in a resolution as opposed to a bill.                                                                        
MS. HALE said she will follow up on that.                                                                                       
SENATOR WIELECHOWSKI  asked her  to flesh  out the  fiscal impact                                                               
more as well  as how the Mining, Land, and  Waste Use application                                                               
process could become more complicated.                                                                                          
MS. HALE  said she  would work  with the DNR  on that.  There are                                                               
certainly  potential fiscal  consequences  to  a designation  and                                                               
that is different than a  nomination. They have three nominations                                                               
4:28:42 PM                                                                                                                    
SENATOR COSTELLO  said her concern  has to  do with how  the bill                                                               
was  written.  The  most  public   deliberative  process  is  the                                                               
legislative  process, and  it  is the  only  public process.  She                                                               
thinks of  it in terms of  how her constituents come  to her with                                                               
bill  ideas without  any pre-legislative  process.  She sees  the                                                               
nomination  process and  reporting  as adding  a  layer that  may                                                               
easily become politicized. She also  wanted to know the rationale                                                               
for everything beyond line 8 in the bill.                                                                                       
MS.  HALE  answered  the  implementing  regulations  of  the  CWA                                                               
require that citizens are able  to nominate waters. That is where                                                               
the  nomination comes  from. The  idea of  DEC then  forwarding a                                                               
report  to   the  legislature  would   just  be   providing  that                                                               
information  to the  legislature, and  the idea  of DEC  having a                                                               
public notice period  of those nominations is so  that people who                                                               
are in  the area of  a nominated water  body have the  ability to                                                               
provide additional  information and opinions to  the legislature.                                                               
That is the idea behind the report.                                                                                             
SENATOR COSTELLO said  thinking through how this  would play out,                                                               
it sounds  like the nomination,  itself, would begin  a community                                                               
input process and  then the legislature may or  may not introduce                                                               
a resolution or some bill to make that so.                                                                                      
MS. HALE answered that is correct.                                                                                              
SENATOR COSTELLO said  it sounds like they  are actually starting                                                               
the legislative  process early  and that  a bureaucracy  would be                                                               
required  to manage  all of  these comments.  She asked  if other                                                               
states have just simply given the legislature this authority.                                                                   
MS. HALE  answered that the  proposed process is actually  a very                                                               
light process  in terms of  bureaucracy. The agency would  not be                                                               
reviewing  this  material;  it would  collect  the  material  and                                                               
forward it on  to the legislature. Two other  western states have                                                               
the  legislature  making the  decision:  she  believes they  were                                                               
Idaho and Montana.  In both of those cases there  is more process                                                               
before the information comes to  the legislature. A lot of states                                                               
have a  board or  a commission actually  review the  material and                                                               
then  make  a  recommendation;  some   states  have  a  board  or                                                               
commission actually make the designation.                                                                                       
SENATOR  COSTELLO   asked  if  the   Bristol  Bay   Watershed  is                                                               
nominated,  if the  department would  get much  comment from  the                                                               
MS. HALE  responded that  yes, the  department may  get a  lot of                                                               
comments, but  unlike comments they receive  on draft regulations                                                               
or on a permit, they would  not be putting together a response to                                                               
comment. They would  pull the comments together  and forward them                                                               
to the  legislature. The  idea is  for minimal  bureaucracy being                                                               
attached to that.                                                                                                               
SENATOR STOLTZE said he would really  like to hear someone of DNR                                                               
Commissioner Myers' stature explain  the consequences. He knows a                                                               
lot about what constitutes "light  processes of bureaucracies" in                                                               
trying to promote economic development.                                                                                         
CHAIR GIESSEL  said he  should not  worry; this  is not  the only                                                               
hearing of SB 163.                                                                                                              
4:36:38 PM                                                                                                                    
SENATOR MICCICHE  continued on with Senator  Costello's questions                                                               
and said there is a process  today for nomination. If DEC were to                                                               
process the nomination for  designation, the bureaucratic process                                                               
wouldn't  change.  It's  just  that  instead  of  the  department                                                               
adjudicating a  designation, the  legislature would be  the final                                                               
say in adjudication. Is that correct?                                                                                           
MS. HALE  responded that  the department  doesn't have  a process                                                               
for adjudicating  a decision on  a nomination. They don't  have a                                                               
process for the nomination; they just receive nominations.                                                                      
SENATOR  MICCICHE  remarked that  he  found  it interesting  that                                                               
states that have become  increasingly more environmentally active                                                               
like Washington,  Oregon, and Idaho,  do not have  any designated                                                               
MS. HALE said  that is correct and added that  Nevada also has no                                                               
ONRWs  designated yet,  although they  have special  statuses for                                                               
waters. One of  the reasons they don't have any  ONRWs is because                                                               
of the magnitude of the consequences of the decision.                                                                           
SENATOR MICCICHE said another state  that is less environmentally                                                               
active  has 22  ONRWs and  asked what  types of  water they  have                                                               
MS. HALE asked if he was talking about Arizona.                                                                                 
SENATOR MICCICHE answered yes.                                                                                                  
MS. HALE  said she didn't know  the precise nature of  the waters                                                               
that have  been designated  there, but  in Montana,  all National                                                               
Park waters are designated ONRWs.                                                                                               
SENATOR MICCICHE  asked if Washington,  Oregon, and Idaho  have a                                                               
process  and have  just  not used  it and  what  bodies of  water                                                               
Arizona has  designated. He  also asked  what the  criteria would                                                               
look like  for the  legislature to  use in  designating a  Tier 3                                                               
water body.                                                                                                                     
4:39:37 PM                                                                                                                    
MS.  HALE answered  that  Washington, Oregon  and  Idaho do  have                                                               
processes for designating waters; they  just haven't done it. She                                                               
will follow up  on the 22 Arizona water bodies.  The criteria can                                                               
be  very broad;  for  instance,  a special  hot  spring could  be                                                               
designated as an ONRW and then  it becomes very difficult to come                                                               
up with  precise criteria. That  is why  the criteria is  left to                                                               
the legislature.                                                                                                                
SENATOR MICCICHE said he is  interested in reviewing the criteria                                                               
and  process in  Washington, Oregon  and Idaho,  and the  Arizona                                                               
water bodies.                                                                                                                   
MS. HALE said she would get that information to him.                                                                            
SENATOR  COGHILL asked  how the  Environmental Protection  Agency                                                               
(EPA) views nominations under C.F.R.  Part 131.12. Does it put an                                                               
immediate restriction on anything?                                                                                              
MS. HALE answered that a  nomination doesn't put any restrictions                                                               
on that water, but a designation  does. She said that comment was                                                               
received  on  draft regulations  in  2014,  and they  planned  on                                                               
putting some  clarifying language  in the final  regulations that                                                               
will be publically noticed in 2016.                                                                                             
SENATOR COGHILL said Section 2  of C.F.R. Part 131.12 talks about                                                               
how  water quality  shall be  maintained unless  the state  finds                                                               
"after full  satisfaction of the  inter-governmental coordination                                                               
and  public participation  provisions of  the state's  continuing                                                               
planning  process,"  and  asked  if  the  legislature  would  get                                                               
overruled if they do a statute.                                                                                                 
MS. HALE replied  that she didn't fully explain all  of the three                                                               
different tiers;  she talked mostly  about Tier 3 waters.  Item 2                                                               
that he  is talking about  really describes Tier 2  waters, which                                                               
are  waters that  are of  higher quality  than the  water quality                                                               
criteria. Most of  the waters in the State of  Alaska are already                                                               
high  quality  waters.  When  doing   a  permitting  action,  the                                                               
department  has  to make  certain  conclusions  to satisfy  anti-                                                               
degradation, and that is what item 2 refers to.                                                                                 
In terms  of being overruled, Ms.  Hale said the EPA  is watching                                                               
the  process Alaska  is  going through  in  developing its  anti-                                                               
degradation  implementation methods,  as  it  is following  other                                                               
states.  EPA has  worked very  closely  with DEC  and is  pleased                                                               
overall with where department is going.                                                                                         
SENATOR  COGHILL said  his  confusion  was that  he  read all  of                                                               
C.F.R.  Part  131.12  and  didn't  make  the  connection  between                                                               
Sections 1,  2, and 3. He  suggested putting Section 3  on line 7                                                               
when they look at the law.                                                                                                      
MS. HALE said she should have made it clearer.                                                                                  
SENATOR WIELECHOWSKI  asked her to  explain what would  happen if                                                               
the  Kenai River  was designated.  What would  that mean  for the                                                               
users and would that impact the ability to have boats on it?                                                                    
4:45:09 PM                                                                                                                    
MS.  HALE answered  that  question  has come  up  a  lot, as  the                                                               
Chilkat River in  Haines has been nominated. In  general, it does                                                               
not mean  that boats can't go  up and down the  river; people can                                                               
keep  fishing. When  the  river  is frozen,  one  can still  snow                                                               
machine  on it.  Specifically, it  means that  pollutants from  a                                                               
point source discharge into the river cannot be increased.                                                                      
SENATOR  WIELECHOWSKI   asked  her  to  define   an  increase  in                                                               
pollutants. Would  drops of fuel  from a  boat be an  increase in                                                               
MS. HALE  said a  "point source  discharge" is  one from  a waste                                                               
water  treatment  plant,  for instance.  The  type  of  pollution                                                               
Senator Wielechowski is  referring to - little  drops of gasoline                                                               
from  an  engine -  is  a  "nonpoint  source discharge"  and  the                                                               
department  wouldn't be  regulating  those. But  if  there was  a                                                               
problem  with  water  quality  on   that  river  and  the  state,                                                               
including  all  the resource  agencies,  wanted  to address  that                                                               
problem, they  might do  something like  the two-stroke  ban that                                                               
went in  place on the  Kenai River, but that  is not part  of the                                                               
Tier  3 process.  It  would  be part  of  the department's  over-                                                               
arching water quality management process.                                                                                       
SENATOR COSTELLO  asked her  to point  to where  she, as  a state                                                               
legislator, has  the authority  to vote on  a measure  that would                                                               
create an ONRW. Isn't that the power of Congress?                                                                               
MS. HALE  answered that it  is a  matter of semantics.  EPA calls                                                               
them Outstanding  National Resource  Waters. Some  have suggested                                                               
that  rather than  using  that term  they  use Outstanding  State                                                               
Resource   Waters,  and   some  states   do.  Other   states  use                                                               
Outstanding  Resource  Waters.  So,  it really  is  a  matter  of                                                               
semantics. The  language in  this bill  is from  the implementing                                                               
regulations of  the Clean Water Act,  but they don't have  to use                                                               
that term.                                                                                                                      
SENATOR  COSTELLO asked  if one  legislature can't  bind another,                                                               
why is  there such  an importance  placed on  the process  to get                                                               
into  the  Tier  3  category,  and  no  provision  for  a  future                                                               
legislature to  rethink and perhaps  take one off. Why  would the                                                               
legislature tie its hands in that regard?                                                                                       
4:49:11 PM                                                                                                                    
MS.  HALE responded  that the  C.F.R. paragraph  3 describes  the                                                               
need for  a process to  designate; it's  silent on a  process for                                                               
un-designating and  she is not  aware of  any ONRW that  has been                                                               
SENATOR COGHILL  said they should  consider having a  process for                                                               
un-designating  in  this  law.  He also  pointed  out  that  "any                                                               
resident may"  could mean any  resident of Alaska or  any citizen                                                               
of the United States.                                                                                                           
MS. HALE replied that their intent  is a resident of the State of                                                               
SENATOR  COGHILL   asked  if  that  should   be  a  PFD-qualified                                                               
MS. HALE  responded that a statute  actually describes "resident"                                                               
and "person," and  "person" can include an organization  if it is                                                               
within the state. Those terms could be clarified if needed.                                                                     
SENATOR  COGHILL asked  if the  requirement is  "you shall  under                                                               
this law accept the nomination" follows through with the C.F.R.                                                                 
MS. HALE answered  yes; a process is needed for  nomination and a                                                               
process is needed for designation.                                                                                              
SENATOR COGHILL said they should at  least test the EPA on having                                                               
a process for un-designating.                                                                                                   
CHAIR  GIESSEL agreed.  She wondered  what would  happen if  they                                                               
designate  a particular  water  way and  then  a community  forms                                                               
upstream  and they  have  no  ability to  put  in  a waste  water                                                               
treatment plant or a mine.                                                                                                      
4:52:27 PM                                                                                                                    
SENATOR MICCICHE said it looks like  this process is being set up                                                               
to significantly  reduce the likelihood  that an ONRW  would ever                                                               
be formed  in the State  of Alaska. It  would be far  less likely                                                               
with legislative approval than with  agency approval. He asked if                                                               
that is a fair assumption.                                                                                                      
MS. HALE  said she  had heard that,  but didn't know  if it  is a                                                               
fair assumption.                                                                                                                
SENATOR   WIELECHOWSKI   asked   if  the   legislature   or   the                                                               
administration doesn't do anything, does the EPA have a penalty.                                                                
MS. HALE  replied that she  was not aware  of a penalty,  but the                                                               
greater  risk   might  be  of   additional  litigation.   It's  a                                                               
requirement that the state needs to meet at some point.                                                                         
CHAIR GIESSEL said  that three water ways or  watersheds had been                                                               
discussed, and  all can  identify development  opportunities that                                                               
exist on them  and this is of  great concern. She held  SB 163 in                                                               
committee for later discussions.                                                                                                

Document Name Date/Time Subjects
Resume-Guy Trimmingham.pdf SRES 2/15/2016 3:30:00 PM
Board of Game Appointments
SB163 ver A.PDF SRES 2/15/2016 3:30:00 PM
SB 163
SB 163 Supporting Documents - Transmittal Letter to Senator Meyer 1.28.2016.pdf SRES 2/15/2016 3:30:00 PM
SB 163
SB163 Fiscal Note DEC-WQ-12-30-15.PDF SRES 2/15/2016 3:30:00 PM
SB 163
SB163 Sponsor Statement.pdf SRES 2/15/2016 3:30:00 PM
SB 163
SB163 Supporting Document - FAQs.pdf SRES 2/15/2016 3:30:00 PM
SB 163
SB163 Fiscal Note-DNR-MLR-02-15-2016.pdf SRES 2/15/2016 3:30:00 PM
SB 163