Legislature(2015 - 2016)BUTROVICH 205

03/07/2016 04:30 PM Senate RESOURCES

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Audio Topic
04:27:31 PM Start
04:28:55 PM SB163
05:11:47 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Overview: Department of Environmental TELECONFERENCED
Conservation, Department of Natural Resources
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 163-NATL. RES. WATER NOMINATION/DESIGNATION                                                                     
4:28:55 PM                                                                                                                    
CHAIR GIESSEL announced consideration of SB 163.                                                                                
4:29:40 PM                                                                                                                    
LARRY   HARTIG,   Commissioner,   Department   of   Environmental                                                               
Conservation  (DEC), Anchorage,  said  SB 163  clarifies who  can                                                               
designate a  "Tier 3"  water in  Alaska. He  said that  there are                                                               
legal  uncertainties  whether  the  legislature  has  given  this                                                               
authority  to DEC.  The bill  also  makes a  clear policy  choice                                                               
whether the  legislature wants to  have a say in  the designation                                                               
of a Tier 3 water, which  is important given the ramifications of                                                               
such a designation.  Additionally, SB 163 provides  a process for                                                               
the public to make nominations and  for the legislature to act on                                                               
4:30:48 PM                                                                                                                    
MR. HARTIG  said [subsections] (b)-(e)  in section 1 of  the bill                                                               
provide  a  process  where  DEC   would  gather  nominations  and                                                               
supporting  information and  periodically  transmit  them to  the                                                               
legislature. The legislature can take  a nomination and act on it                                                               
in the  form of  a bill, or  it can ask  agencies for  a detailed                                                               
report  evaluating the  pros and  cons of  the nomination.  "That                                                               
isn't  spelled  out in  the  bill  itself, but  certainly  that's                                                               
something   that  would   be  within   the  prerogative   of  the                                                               
legislature to do," he explained.                                                                                               
4:31:12 PM                                                                                                                    
MR. HARTIG  said the legislature  can choose not to  designate "a                                                               
Tier 3  or Outstanding [National] Resource  Water-those terms are                                                               
synonymous," and it has a  whole host of other options available.                                                               
The legislature could protect an area  by putting it into a state                                                               
park or refuge, for example.  He asked why the legislature should                                                               
make the determination on Tier 3  waters and answered that a Tier                                                               
3 water is the highest level  of protection under the Clean Water                                                               
Act (CWA). The designation protects  water from future pollution,                                                               
including   waters  used   for   drinking,   aquatic  life,   and                                                               
recreation.  The  stream,  he  said, will  be  conserved  in  its                                                               
existing  state,  regardless  of  the pros  and  cons  of  adding                                                               
discharged pollutants.  "So it has  some large  consequences when                                                               
it's  designated,"   he  noted,  and  it   will  preclude  "other                                                               
dischargers"  from  new   pollution,  including  pollutants  from                                                               
processing plants and mining.                                                                                                   
4:33:15 PM                                                                                                                    
MR.  HARTIG said  federal requirements  for a  designation of  an                                                               
Outstanding [National] Resource  Water (ONRW) include outstanding                                                               
quality  or  purity,  as well  as  exceptional  recreational  and                                                               
ecological  significance. He  said DEC  would not  look at  those                                                               
[latter]  factors when  regulating water  quality, which  "sounds                                                               
more like  a game refuge  or a state park,"  and it would  not be                                                               
within its  purview. Water quality  and purity "sounds  more like                                                               
DEC and  water quality  standards that  we adopt  and implement,"                                                               
but quality  and purity describe all  of the water in  the state.                                                               
New  Jersey's  outstanding  water  might be  water  that  is  not                                                               
polluted, he said, but [unpolluted  water] is ordinary in Alaska.                                                               
A Tier  3 designation will  depend on what additional  factors in                                                               
Alaska  make  water  outstanding,  he  stated.  "Do  you  make  a                                                               
conscious policy  decision that  we're just going  have a  lot of                                                               
Tier 3  ONRW waters in Alaska,  because we have a  lot of special                                                               
waters here?"  He told the  committee that there is  no provision                                                               
under federal  law for "unwinding"  a Tier 3 designation,  so the                                                               
designations  could be  for perpetuity.  It will  keep the  water                                                               
outstanding  and there  would be  no logical  reason to  "reverse                                                               
course,"   he  stated.   When  looking   at  a   nomination,  the                                                               
legislature has the tools for  protecting such waters, but not in                                                               
perpetuity, so it can carve  out another mechanism, like creating                                                               
parks  or refuges.  However,  DEC would  designate  the water  as                                                               
"Tier 3  or not." He said  that by putting it  all together, "we"                                                               
think  it is  more  appropriate  for the  legislature  to be  the                                                               
decision maker. This  bill has been put forward  because "we need                                                               
to  go forward  and  designate to  EPA [Environmental  Protection                                                               
Agency]  what our  process  is for  designating  Tier 3  waters,"                                                               
which  is  a   requirement  of  the  Clean  Water   Act  and  EPA                                                               
regulation. If this  is not done, there  is the risk of  EPA or a                                                               
court "forcing  us to do it"  or providing a federal  process for                                                               
designating Tier 3 water," he explained.                                                                                        
4:37:42 PM                                                                                                                    
CHAIR  GIESSEL noted  a March  22, 2016,  letter from  Mr. Hartig                                                               
responding  to  committee  member questions,  and  she  expressed                                                               
appreciation on  how well  the letter  was done.  Senator Coghill                                                               
had said there  should be a process for  reversing a designation,                                                               
and she  referred to  the following  statement from  Mr. Hartig's                                                               
     There is no federal regulation or  guidance specifically                                                                   
     addressing whether or  how a state's  designation of an                                                                    
     ONRW can be reversed or modified. DEC knows of no ONRWs                                                                    
     in  the United States  that have  had their designation                                                                    
     reversed. It is assumed that the justification necessary                                                                   
     would be extensive; however, the proposed removal of an                                                                    
     ONRW  designation would  presumably be  similar to  the                                                                    
     process used to originally designate the ONRW, here, in                                                                    
     the legislative process.                                                                                                   
CHAIR GIESSEL  asked where Mr.  Hartig got the  above information                                                               
on rescinding a designation.                                                                                                    
COMMISSIONER HARTIG said  it is an area of  confusion, because no                                                               
provision  in the  EPA  regulations  or in  the  Clean Water  Act                                                               
addresses this.  He said he  is not aware  of any state  that has                                                               
tried to  reverse protections. He  said his  take is that  if DEC                                                               
designated a  Tier 3  water based on  water quality,  purity, and                                                               
recreational  and  ecological  values,  it  would  be  through  a                                                               
regulatory process. He  does not see how DEC could  come back and                                                               
say it  made a  mistake unless  an extraordinary  event occurred,                                                               
like a volcanic mud flow. He  added that it would be difficult to                                                               
prove that DEC  made a wrong decision  after considerable process                                                               
and review.                                                                                                                     
4:41:51 PM                                                                                                                    
COMMISSIONER HARTIG said he does not  know if there would be more                                                               
room  to reverse  a designation  legislatively, because  the body                                                               
could, perhaps, look at other  factors and considerations, but no                                                               
other state  has tried it.  He noted  that the statements  in his                                                               
letter came from the Department of  Law, and it might be that the                                                               
legislature could rescind a designation  with a bill, but he said                                                               
he did not know if that would be legal.                                                                                         
CHAIR GIESSEL said  that this committee knows that  the state has                                                               
had minimal  mapping and  is still  discovering new  resources to                                                               
develop. She said  she could envision a situation  where there is                                                               
a desire to develop a resource  upriver from a waterbody that had                                                               
been designated  Tier 3, and  "we" would want to  "undeclare" the                                                               
Tier 3 designation.                                                                                                             
4:43:00 PM                                                                                                                    
COMMISSIONER  HARTIG  said if  the  legislature  did not  want  a                                                               
perpetual Tier 3 determination,  it could craft whatever solution                                                               
it wanted to protect the  nominated water without risking [future                                                               
development options].                                                                                                           
CHRIS  PELOSO,  Assistant  Attorney General,  Department  of  Law                                                               
(DOL), Juneau,  said that he  does not  believe that the  EPA has                                                               
contemplated  removing  a  [Tier  3]  designation,  so  there  is                                                               
nothing  in the  Clean Water  Act about  it. He  opined that  the                                                               
designations  were  designed to  be  permanent,  like a  national                                                               
forest or  park. If the legislature  were to put in  statute that                                                               
designations  could  be  removed under  certain  conditions,  "we                                                               
would have to take that back to  EPA and see what they said about                                                               
it."  He  said the  EPA  may  provide  comments  or may  find  it                                                               
acceptable, but no state has gone  through that process, so it is                                                               
impossible to know whether that would work.                                                                                     
SENATOR COGHILL said,  "I would like to suggest to  EPA that they                                                               
contemplate it," but  he understands that there  should be fairly                                                               
compelling reasons to  reverse a designation. He  stated that the                                                               
legislature would  do the  same if  it created  a state  park and                                                               
then carved  out a part  of it for some  reason. He asked  if the                                                               
EPA has a preemptive right.                                                                                                     
MR.  PELOSO answered  that the  EPA has  some approval  authority                                                               
over  certain things  that the  state does,  and Alaska's  Tier 3                                                               
process would  go to the EPA.  But since there is  nothing in the                                                               
regulations about how to reverse  a designation, "I don't believe                                                               
that EPA has  a process of how  they would do that."  He said the                                                               
state would have  to talk to the  people in Region 9  of the EPA,                                                               
"and see what their general feelings  on this are." He added that                                                               
EPA may have to do some rulemaking.                                                                                             
4:46:40 PM                                                                                                                    
SENATOR COSTELLO  pointed to line  2, page  2, of SB  163 whereby                                                               
"the commissioner shall  transmit [a list of  nominations] to the                                                               
legislature for consideration." That  implies some action of some                                                               
sort,  she  stated.  Generally  a   report  is  provided  to  the                                                               
legislature, but the bill takes it  a step further, and she asked                                                               
if there  has to be  some action  taken. Secondly, it  seems that                                                               
every year the same waters  could be proposed and transmitted for                                                               
consideration, and,  over a period  of decades, "you  would build                                                               
this  body  of political  movement  to  designate some  of  these                                                               
waters, when,  in fact, once  the legislature considers  them, it                                                               
seems like they  should be taken off the list  and not allowed to                                                               
be put back  on the list for  a period of time,  perhaps a decade                                                               
or something."                                                                                                                  
MR. PELOSO  said DEC  does not  have the  authority to  force the                                                               
legislature to  do anything,  so when  it proposes  something for                                                               
consideration, the  legislature can choose  not to act on  it. He                                                               
said he  can amend the  language to make that  clearer. Regarding                                                               
nominations  that  are  not approved  or  deliberated,  he  said,                                                               
taking [those  waters] off  "the list"  could be  handled through                                                               
regulation. "I  don't suspect it  would necessarily be  a problem                                                               
to  work  out  a  process  for  how  nominations  that  were  not                                                               
considered are dealt with," he stated.                                                                                          
4:49:24 PM                                                                                                                    
ED FOGELS,  Deputy Commissioner, Department of  Natural Resources                                                               
(DNR), Juneau,  said DNR has  worked with DEC  on SB 163,  and he                                                               
absolutely agrees that this is an  issue that needs to be solved.                                                               
The state has to have its own  process or EPA will create one, he                                                               
noted.  He  said a  Tier  3  designation could  have  significant                                                               
impacts on  land and water  uses that DNR authorizes  both within                                                               
and upstream of the proposed Tier  3 areas. The fiscal note shows                                                               
that  DNR   permitting  could   be  complicated   by  a   Tier  3                                                               
designation,  and  it may  be  more  difficult or  impossible  to                                                               
permit land uses,  like point source discharges,  that impact the                                                               
quality of Alaska's Tier 3 waters.  Uses may not even be allowed,                                                               
so people  may not be  applying or looking  in those areas  to do                                                               
any of  those kinds  of uses.  He said  he is  not sure  how much                                                               
additional  work an  analysis would  take, but  he is  sure there                                                               
will be additional workload if  DNR was faced with issuing "these                                                               
authorizations" within  or upstream of  a Tier 3  designation. He                                                               
said DNR  recognizes the potentially significant  restrictions on                                                               
land and water  uses within a Tier 3 area,  which will be similar                                                               
to  those on  state parks,  wildlife refuges,  and other  special                                                               
areas; therefore, the legislature should make these decisions.                                                                  
4:52:10 PM                                                                                                                    
SENATOR COGHILL asked about flowing  water and "up shore," and he                                                               
said there would be a permitting  problem for DNR. He asked about                                                               
land  next  to  a  standing   water  body  and  about  permitting                                                               
recreational  cabins  near  water.   He  asked  what  other  land                                                               
management near a waterbody is going to be impacted.                                                                            
MR. FOGELS answered that there  are some unknowns, but most mines                                                               
have  a point  discharge that  would  require a  DEC permit,  and                                                               
mines near Tier 3 standing waters  would likely not get a permit.                                                               
A  person who  wanted to  apply for  a lodge  with a  waste water                                                               
disposal system  near a lake or  a standing body of  water, "that                                                               
would  likely, in  our view,  be 'unpermitable'."  If DNR  had to                                                               
authorize water  removal from a lake,  it would depend on  how it                                                               
would impact  the quality of the  water. It would all  be part of                                                               
the analysis, he stated.                                                                                                        
SENATOR COGHILL  asked about taking  water for  fire suppression,                                                               
and he stressed  being very careful about  designations. It would                                                               
be a real barrier if DNR had to ask DEC [to use Tier 3 water].                                                                  
MR.  FOGELS said  he  will get  back to  the  committee on  using                                                               
designated waters for fire suppression.                                                                                         
4:55:23 PM                                                                                                                    
SENATOR  STOLTZE  asked for  examples  of  medicinal and  mineral                                                               
waters, and if they will be impacted by [Tier 3] designations.                                                                  
MR. FOGELS  said there are mineral  springs that may be  used for                                                               
medicinal purposes. Alaska has a lot  of hot springs, but he does                                                               
not know if there are designated medicinal waters.                                                                              
CHAIR GIESSEL said  there is a hot springs in  the Fairbanks area                                                               
that touts having medicinal waters.                                                                                             
SENATOR STOLTZE said fire suppression  is a DNR activity, and the                                                               
Governor's letter has no reference  to DNR being involved. Should                                                               
DNR have a more formalized role in the ONRW process?                                                                            
MR.  FOGELS said  DNR has  been  working on  SB 163.  There is  a                                                               
question as to  what role the resource agencies  should have. The                                                               
agencies  can  provide   a  list  of  nominated   waters  to  the                                                               
legislature, or the  legislature can deliberate and  then ask for                                                               
input from  the agencies. He  hopes that  he can come  before the                                                               
legislature  to clearly  explain  the  economic ramifications  of                                                               
protecting water under  Tier 3 designations. He  pointed out that                                                               
an agency  process can  encounter "frontloading,"  and it  can be                                                               
pretty significant and decisions can be challenged or appealed.                                                                 
SENATOR STOLTZE  said that the  United Fishermen of  Alaska (UFA)                                                               
has  a   different  priority  and   does  not   want  legislative                                                               
involvement, and  it certainly has  a record of not  supporting a                                                               
lot  of mining  and  other activities,  including tourism.  "They                                                               
have a  death grip on one  of our departments, and  I'd sure hate                                                               
to  have them  have a  death grip  on several  others if  there's                                                               
another process they're suggesting." He  said there are people on                                                               
the  committee  who   have  a  few  months   remaining  in  their                                                               
legislative terms,  and he sure  would like to see  DNR's process                                                               
and involvement formalized,  because the "cadre of  folks" at DEC                                                               
do not  have the same  type of enthusiasm for  the constitutional                                                               
charge of DNR.  He added that DEC has  a different interpretation                                                               
of  Article XIII  than he  thinks the  founders did,  and DEC  is                                                               
closer to the  mission of the fishermen than the  mission of DNR.                                                               
He  stated  that  DNR  should  be  elbowing  its  way  into  this                                                               
discussion, and "you  should be more forcefully  shoving your way                                                               
into this if you're following your constitutional mission."                                                                     
5:01:09 PM                                                                                                                    
CHAIR GIESSEL  said that  is the very  reason that  the committee                                                               
has  DNR present  today. She  asked about  "the role  of Canadian                                                               
waters." Many  of Alaska's rivers  start in Canada, she  said, so                                                               
"how's that going to work?"                                                                                                     
MR.  FOGELS said  that  is a  good question,  and  DNR is  having                                                               
discussions with  Canada regarding resource development  over the                                                               
border from Southeast  Alaska. But Tier 3 designation  is US law,                                                               
and he does  not believe there is any direct  legal recourse if a                                                               
water was [impacted]  if "something happened on  the other side."                                                               
That  would be  beyond the  authority  and expertise  of DNR,  he                                                               
SENATOR  COSTELLO asked  if Alaska  can be  exempt from  the law,                                                               
considering  how   important  resource  development  is   to  the                                                               
MR. FOGELS  said he is experienced  with the Clean Water  Act and                                                               
finds  it highly  unlikely that  Alaska  can be  exempt, but  the                                                               
state might  be able to  "push back"  on certain aspects  and see                                                               
how EPA responds. "I'm totally  behind looking at avenues that we                                                               
could do something like that-test the  waters a little bit, so to                                                               
5:03:28 PM                                                                                                                    
MICHELLE  HALE,  Director,  Division   of  Water,  Department  of                                                               
Environmental Conservation  (DEC), Juneau, said  the requirements                                                               
for the antidegradation process have  been clearly spelled out in                                                               
federal regulations since 1983, and it  is in the Clean Water Act                                                               
revision of 1987.  The antidegradation process includes  a Tier 3                                                               
nomination  and designation  process, and  "in our  experience we                                                               
would not  be able  avoid that  requirement." The  requirement is                                                               
just to  have the process,  and there  is no requirement  to make                                                               
designations, she added.                                                                                                        
CHAIR  GIESSEL  said that  is  a  key  point;  "this is  about  a                                                               
designation process, not that it would necessarily be used."                                                                    
MS.  HALE said  yes. Many  states have  processes and  have never                                                               
used  them,  she explained,  but  if  Alaska  does not  create  a                                                               
process, it  faces two risks: the  EPA will come in  and create a                                                               
process, "and  it may not be  the process that we  want," and the                                                               
second risk is litigation. "We have  been sued about our ... lack                                                               
of antidegradation implementation  procedures, which includes the                                                               
Tier 3  nomination and designation  process." She said  she would                                                               
like to not be sued again, but that risk is there.                                                                              
5:05:30 PM                                                                                                                    
SENATOR  STOLTZE asked  if  Alaska  is really  in  charge of  the                                                               
process. "If  the feds tell us  we can drive, but  we're going to                                                               
have a  gun stuck  in our  ribs during  the whole  driving route,                                                               
which  is  in perpetuity  ...."  He  asked if  Governor  Walker's                                                               
administration  has confidence  in the  federal government  "that                                                               
many of us don't have."                                                                                                         
COMMISSIONER  HARTIG said  it is  a requirement  that each  state                                                               
have a process to consider nominations  of Tier 3 waters, but EPA                                                               
has  made it  clear in  its guidance  that it  will not  compel a                                                               
state to designate  any particular water. That will be  up to the                                                               
states, he  explained, but  states just have  to have  a process.                                                               
That is  shown by the past  decades, because some states  have no                                                               
Tier 3  waters. Washington and  Oregon have none,  and California                                                               
only has  two, he noted.  Tier 3  status is a  big consideration,                                                               
and EPA has not  tried to force them on the  states. His said his                                                               
one concern is that a member  of the public will attempt to force                                                               
action  on a  nomination. If  the  legislature says  DEC has  the                                                               
authority to  designate Tier 3  waters, and if a  nomination came                                                               
in  and DEC  did not  act on  it, Mr.  Hartig could  see somebody                                                               
asking for a  court order for the agency to  take official action                                                               
since it will  be within its duties. Whereas,  if the legislature                                                               
has the  authority, then there  will be  legislative prerogative,                                                               
"and I don't  see it very likely  that a judge would  come in and                                                               
try to force the legislature to take up a bill."                                                                                
5:08:02 PM                                                                                                                    
SENATOR STOLTZE said  it sounds like citizens  can get organized,                                                               
and they can get  "somebody who used to be a  U.S. senator to get                                                               
the federal  government to bring in  the feds, and we  don't know                                                               
how to get them out." He said  that is a question directed to the                                                               
commissioner or the highest ranking DNR person.                                                                                 
COMMISSIONER HARTIG  said he does not  see a great risk  that EPA                                                               
would try to  force the legislature to act on  or even consider a                                                               
bill  for a  Tier 3  designation. He  said he  has never  seen an                                                               
action like that in any state  under the Clean Water Act. He said                                                               
he sometimes  questions whether the  EPA has the authority  to do                                                               
some of the  things it does, but based on  40 years of experience                                                               
working on the CWA he has never seen something like that.                                                                       
SENATOR WIELECHOWSKI  said he appreciates  the input  provided by                                                               
industry,  and unfortunately,  in a  resource development  state,                                                               
sometimes there is conflict between  fish and mining. It does not                                                               
help to demonize a group, and  he said he appreciates the letters                                                               
that were provided  by both organizations. The  letters were well                                                               
thought out, he said, and  they were both advocating strongly for                                                               
their interests.  The United Fishermen  of Alaska  provided well-                                                               
reasoned testimony, and,  he said, it has  been actively involved                                                               
in the  regulatory process.  The UFA is  trying to  protect fish,                                                               
and the miners are trying to  protect the mines-"I don't think it                                                               
helps us to demonize anyone."                                                                                                   
5:11:39 PM                                                                                                                    
CHAIR GIESSEL said she appreciated  DNR's presence, and she noted                                                               
that there  are letters from  UFA, Yakutat Tlingit  Tribe, Alaska                                                               
Miners Association, and others, which  will all be posted online.                                                               
She said  the committee will  take public testimony on  Friday or                                                               
Monday. [SB 163 was held in committee.]                                                                                         

Document Name Date/Time Subjects
SB163 ver A.PDF SRES 3/7/2016 4:30:00 PM
SB 163
SB163 Sponsor Statement.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB 163 Supporting Documents - Transmittal Letter to Senator Meyer 1.28.2016.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163 Fiscal Note DEC-WQ-12-30-15.PDF SRES 3/7/2016 4:30:00 PM
SB 163
SB163 Fiscal Note-DNR-MLR-02-15-2016.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163 Supporting Document - FAQs.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163-Comments-Alaska Miners Association.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163-DEC Responses to Questions in SRES.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163-Comments-Yakutat Tlingit Tribe.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163-Comments-United Fishermen of Alaska.pdf SRES 3/7/2016 4:30:00 PM
SB 163
SB163 Supporting Document - Tier Descriptions-DEC.pdf SRES 3/7/2016 4:30:00 PM
SB 163