Legislature(2015 - 2016)BUTROVICH 205
03/14/2016 03:30 PM Senate RESOURCES
Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
Download Mp3. <- Right click and save file as
|Overview: Alaska Oil and Gas Conservation Commission (aogcc)|
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 163-NATL. RES. WATER NOMINATION/DESIGNATION 4:09:34 PM CHAIR GIESSEL announced consideration of SB 163. She limited testimony to about 10 minutes per group. 4:10:00 PM RAYMOND SENSMEIER, Council Member, Yakutat Tlingit Tribe, Yakutat, Alaska, said he was born and raised in Yakutat and thanked them for this time "to speak from my heart" on behalf of the Tier 3 status of the forelands of Yakutat. He represents Yakutat on the Transboundary Commission and said that many mines in Canada are at the headwaters of fishing rivers; one is the Alsek, which is 40 miles from Yakutat. The forelands, according to scientists, Park Service and Alaska Department of Fish and Game (ADF&G), is the "most pristine, cleanest waters of drinkable water quality in Alaska and the nation." He said there are approximately 90 streams with all five species of salmon, char, cut throat, hooligan, seals and sea lions. This area is covered with old village sites, old summer fish camps, shaman's graves, and the bones of his ancestors. There is no controversy involved in claiming this status. MR. SENSMEIER digressed saying he is a veteran and asked if there were any other veterans in the house. A number of people stood. CHAIR GIESSEL thanked them for their service. MR. SENSMEIER said he served two tours in Vietnam; it haunts him still and he suffers from PTSD. He is now fighting for his country once again. Two men in a foxhole ask each other: Do we have your back? The people in Yakutat have the same plea. He asked that everyone today put their minds together and see what life they can make for their children. 4:15:00 PM CHAIR GIESSEL thanked Mr. Sensmeier for his testimony and recognized Representative Kreiss-Tomkins present in the audience. 4:15:27 PM DEBRA SCHNABEL, Executive Director, Haines Chamber of Commerce, Haines, Alaska, said the mission of the Greater Haines Chamber of Commerce is promotion of economic growth that contributes positively to the quality of life in Haines. A household survey undertaken in 2011 by the McDowell Group as a basis for developing their 2025 Comprehensive Plan concluded that 72 percent of Haines' residents rate quality of life as high. Sixty-six percent named natural beauty and outdoor opportunities as what they like most about Haines. The following is a summary of her comments: Haines is a community in transition. Their century- long economic history includes simultaneous operation of four salmon canneries, growth and the demise of Porcupine (a mining town supporting over 5,000 people), simultaneous operation of two sawmills manufacturing wood products for export, and a cruise ship schedule that brought three to four vessels into port weekly seasonally. So, Haines is a typical Alaskan community that has prospered or not depending on resource extraction, technological overhauls, global market conditions, and politics. Today's demographics describe a community of retirees, craftspeople who renovate or construct their homes, small business entrepreneurs, tour operators, fishermen and health care providers. Much of Haines' economic history has been decided by the state because of land-granting by the state for funding the Mental Health Trust and the University of Alaska. The state owns and manages 32 percent of all land in the Haines Borough. The Haines State Forest and the Chilkat Bald Eagle Preserve fill out the inventory. The Haines' State Forest, once an economic engine for defining the timber industry, is now being defunded by the state. The Chilkat Bald Eagle Preserve is still an economic development opportunity with 77 percent of respondents supporting increased commercial use. To the extent that their economy is still resource dependent, the Chilkat River is the lifeblood of commerce. The Chamber views the nomination of the Chilkat River as a Tier 3, outstanding national resource water, as specified in 40 C.F.R. Part 131.12 as a strategy to direct energy away from mineral resource development in the tributaries of the Chilkat River and to focus energy on preservation of wild salmon stock for subsistence and commercial use in the development of recreational tourism. It is the politics of defining quality of life. Some would say that a Tier 3 designation is necessary to preserve cultural values including subsistence lifestyles, necessary to preserve wild stock salmon fisheries, necessary to maintain a semblance of pristineness that attracts photographers, artists and tourists seeking wilderness recreation. Those would say it is necessary because it is impossible to otherwise guarantee that there will never be a mishap, an accident that could introduce toxins or pollutants in the river, that it is impossible for a mining operation to create a method of waste disposal that would not pollute ground water or tributary or the Chilkat River directly. Those who support a Tier 3 designation can envision a healthy economy that restricts large scale resource extraction to fisheries and an economy built on tourism. 4:19:30 PM Those who do not support a Tier 3 designation believe that traditional resource development undertaken with modern methods and under the scrutiny of state agencies responsible for protecting the state's waters do not threaten water quality. They also think that a mining operation, specifically, the Palmer Deposit, is the sort of economic development that would improve quality of life because it would create jobs and open up more land. These people believe that there is adequate regulation in place to preserve water quality in the Chilkat River. Those who oppose a Tier 3 designation see it as an imposition on their lifestyle and a threat to potentially meaningful economic development. In the 2011 survey, more than 50 percent of households supported potential economic development opportunities utilizing agriculture (95 percent) value-added wood products (92pc), winter tourism (83 percent), promotion of the Chilkat Bald Eagle Preserve (77 percent) and large scale timber harvesting (65 percent). Fifty percent of households supported large scale mining such as the Constantine Mineral deposit in the Chilkat Valley, the Palmer Project. Being for or against Tier 3 for economic reasons is only one aspect of this issue. The issue is more broadly political. Some think it would take government regulation of local life too far. We have been told at a Q&A session held by the Department of Environmental Conservation (DEC) in Haines on February 22 that any activity currently undertaken in state waters would be allowed to continue, but there is concern that a Tier 3 designation would prohibit infrastructure development that may be deemed important to the support of subsistence lifestyles and outdoor recreation such as boat launches, docks, and operation of machines that raise turbidity levels in the river. MS. SCHNABEL said the political aspects of the proposed process for designation of Tier 3 designation as outlined in SB 163 is of concern to her membership according to a recent survey. Governor Walker's assessment of "far-reaching consequences" for economic development supports his opinion that the basis for Tier 3 designation ought to be political and not scientific. As written, SB 163 calls for legislative action on the designation. Membership favors slightly a scientific basis, because they realize that votes on issues affecting local economies can easily be traded among legislators with different constituent loyalties. Another concern about SB 163 is the provision that any single resident may nominate a Tier 3 designation. Generally, consideration of a designation of far- reaching consequence out to have a larger political buy-in at the time of application. It needs scientific buy-in and nominating applications must be vetted. 4:23:01 PM In considering the process for designating state waters as an outstanding national water resource, the Chamber looks to the State Constitution, Article 8, Natural Resources. The legislature has constitutional authority for utilization, development and conservation of all natural resources including water, which is subject to appropriation, with priority to prior rights and preference among beneficial uses and the general preservation of fish and wildlife. Constitutionally, the legislature may provide for the administration and preservation of special use sites for the use, enjoyment and welfare of the people as it did with the formation of the Chilkat Bald Eagle Preserve. The Constitution also provides that mineral rights hold a priority right for extraction. Nature offers us phenomenal choices that require good judgement and a crystal ball. Decisions have consequences. Reflecting on the potential impact of a Tier 3 designation seems similar to the impact that consideration of habitat for various species of wildlife had in the management of our national forests. A Tier 3 designation would change the course of economic development for Haines, but in what direction and characterization remains the purview of those who remain to accept that challenge. CHAIR GIESSEL asked when the DEC did their briefing if they talked about the impact a Tier 3 designation would have on fishing and use of boats in the river. MS. SCHNABEL answered that she wasn't present for first 15 minutes and it was a question and answer briefing, but the DEC representative did a very good job of maintaining that because they didn't have any scientific baseline data about this entire river system there were no answers at this time. 4:25:56 PM CHAIR GIESSEL said the survey results were interesting. MS. SCHNABEL explained that she was talking about two surveys. One was the household survey done by McDowell group for 2011 about the broad questions of where they want the economy to go. The Chamber survey was specific to the Tier 3 designation. CHAIR GIESSEL went with the second survey and asked if 29 percent of the Chamber members supported the legislature making that decision and 40 percent favored the administration, implied that they thought the DEC bureaucracy would be less political, because their decision would be based on science. She added that many on the Resource Committee base their evaluation of the things that come before them on the data and the science that is presented. MS. SCHNABEL noted that SB 163 provides for the development of a process and it's hard to know how seriously that would be taken, because she has heard that DEC is thinking of only collecting the nominations and putting them forward to the legislature without vetting the application or creating baseline data for consideration. People are highly concerned about a political body making such important decisions. CHAIR GIESSEL said the committee is looking at the process language carefully. 4:29:01 PM SENATOR MICCICHE noted that a majority didn't favor a Tier 3 designation, but thought that the administration would be a better choice than the legislature. He asked if her question explained some sort of a process, because if the designation decision would go to a commissioner, it would likely have a scientific basis. However, the commissioner is appointed by a governor who has very real political ties. In a legislative body political feelings can be averaged out. If a body of water shouldn't be designated, it shouldn't really matter which body makes the decision. Commissioners can fluctuate dramatically. MS. SCHNABEL said the Chamber survey followed the February 22 meeting when DEC information on existing regulations was distributed. Haines has a section of citizenry who believe there is a lot of exchanging of votes in the legislative process. SENATOR MICCICHE said that may happen with some lower level things, but it is less likely to occur on important issues, and it can happen on both sides. He personally feels that a really sound process would be the data processed by the administration and forwarded to the legislature. That is generally how they make most key decisions and he has a tendency to believe the process works. MS. SCHNABEL said she would take that information back with her. CHAIR GIESSEL said she appreciated that comment and had never traded a vote in her six years in the legislature. "I vote on what I believe is the best thing for our state as a lifelong Alaskan," she said. 4:33:34 PM SENATOR STOLTZE commented that he was just confused about the political judgment in Haines after 2012. 4:33:56 PM LOUIE FLORA, Legislative Liaison, Alaska Center for the Environment (ACE) and Alaska Conservation Voters (ACV), Juneau, Alaska, read from prepared text opposing SB 163 as written. He appreciated all the hard work that all legislators are doing this year on the fiscal dilemma. He said ACE/ACV supports a clear and transparent process to designate Outstanding National Resource Water (ONRW). They support an inclusive process that highlights local input that creates compromise and a working relationship between stakeholders. They are disappointed that Governor Walker would see fit, out of all the options, to punt this Tier 3 determination responsibility to the legislature. Establishing the legislature as the final arbiter of this big decision puts a lot of pressure on committee chairs and individual legislators. It also places the designation in a kind of chutes and ladders game which some people and groups are better equipped to play than others. The primary problem that they see with having the legislature making the final Tier 3 designation is that it creates a white hot political debate, instead of a stakeholder discussion. Additionally, a 90-day session is dominated by generally one, two, or three major issues and may not provide enough time to fully and fairly vet and decide on a Tier 3 nomination. The DEC, with input from ADFG and DNR would yield better results for Alaska in the long run and would foster better public dialogue. The Office of the Governor is powerful enough to absorb the shock of opposition from whomever is opposed to the final outcome. It is their understanding that all the western states have adopted some method of designating Tier 3 waters as required by the Clean Water Act, but only a small handful of states put the onus of approving a Tier 3 designation on the state legislature. Some western states like Montana that require legislative approval of Tier 3 also automatically designate all waters in national parks and protected areas as Tier 3 waters. Idaho requires legislative approval and has no Tier 3 waters. Other western states like Wyoming, Washington and Oregon leave the designation process up to their equivalent of a DEC. Per capita, there is a larger constituency for salmon and clean water in Alaska than any other state in the Lower 48. So comparisons to any of these states are tough. MR. FLORA said ACE/ACV recognizes that a Tier 3 designation might seem awkward in Alaska that has a superabundance of high value rivers, wetlands, lakes and streams. However, there are numerous reasons why it's important to have a science-based, transparent and inclusive ONRW process that allows Alaskans to seek Tier 3 protections for important waterbodies. For one thing, the planet keeps breaking records; 2015 was the hottest year in recorded history. January 2016 was the warmest January in human record. Climate change is likely going to change a lot of things for water in Alaska. Perhaps the stress of low snow pack and increasing water temperature on our fish habitat will engender more and more pressure to protect fish habitat from additional stressors. At some point, likely soon, a whole lot of people might be looking for a whole lot of answers on how to protect our fish. A science-based determination process may be more appropriate than a legislative process as people begin to examine and judge the impacts of climate change on all of our waters. 4:38:52 PM It is conceivable though that Alaskans will submit applications to protect waterbodies as a response to perceived policy and decision making shortcomings. Of course everyone has their own view of whether the balance is tilted too far one way or the other. ACE/ACV believes that many current permitting processes have structural deficiencies that prevent compromise or that adequately protect our fish and water, such that ONRW designation may be sought. For example, since losing the Coastal Zone Management Program which brought Alaskans to the table in major permit reviews, there is no ability to comment on temporary water use permits which are used as a proxy for major industrial water rights. Public interest litigation has been stripped to bare bones and public comment on oil and gas leasing has been consolidated. Reasonable water quality measures to prohibit wastewater mixing zones in salmon spawning habitat has been halted, the citizens initiative to make cruise ships not dump sewage into state waters has been rolled back. There is no requirement for interagency consultation on major water withdrawal permits and there is no law on the books to prevent dewatering of a salmon stream. MR. FLORA continued that under the Clean Water Act, the state is not required to designate Tier 3 waters, it is only required to have a process in place for citizens to make nominations. There are various options for what that process could look like. ACE/ACV does not think that a legislative process is the right one for Alaska. SB 163 is merely a path to more shrill debate. Alaska is uniquely dependent on fish and clean water so there is going to be a lot of noise surrounding this issue. There is obviously an interest in the legislature in mitigating against Tier 3 nominations. Instead of creating a process where Tier 3 nominations dominate the legislative conversation, the Walker Administration should use the tools at its disposal to build a public conversation around why Alaskans would seek Tier 3 nominations in the first place. To summarize in closing, he said, Alaska is overdue for the adoption of a clear, inclusive, science-based ONRW process. While there is no requirement to designate waters, only to have a process, whatever process is adopted should be workable for the people of Alaska, and allow them to make nominations and have the nominations considered. The decision should be science- based, inclusive, and transparent. ACE/ACV believes that the process that makes the most sense is to have DEC, the agency with the water quality and permitting expertise, be in charge of the decision. SENATOR STOLTZE recalled that the governor suggested that the legislative branch make the designations and he assumed that DEC would be responsible for making the policy recommendations. DEC Commissioner Hartig has been at the helm through three administrations and has helped direct a lot of that traffic that has been so inimical in Alaska. And he asked: "Why would you want to trust a dirty guy like him?" MR. FLORA replied that the commissioner has a long familiarity with the process and he could create a fair process for analyzing Tier 3 water nominations working with the administration. Part of the issue now is that Alaskans didn't know about Tier 3 waters before the governor introduced this bill. Using science and having stakeholder involvement builds a lot more cooperation and can bring Alaskans together in a larger way than a potentially partisan legislative debate. 4:43:28 PM SENATOR MICCICHE said in looking at the list of designated waters in western states, the State of California is arguably the most environmentally active state in the union and it has only two bodies of water designated as Tier 3. California has a robust process; it has a state agency or ten for just about every decision that has to be made. He struggles with Mr. Flora's logic, because he envisions a process where DEC and DNR make a recommendation to the legislature, a body that changes slowly but is relatively consistent. The body has been deliberative even if they don't all agree with every decision. But there is really the potential for dramatic swings in the administration: you have no idea who the next governor will be. SENATOR MICCICHE opined that the beauty of our system is that if legislators are not responsive, they often go away and get replaced with other legislators that are more responsive. He was open to discussing these things, but he didn't follow Mr. Flora's logic. He hoped that if there is a waterway that should be designated as Tier 3 that it would be successful with the legislature. If it shouldn't be, neither the department nor the legislature would likely support it either way. 4:46:25 PM DEANTHA CROCKETT, Executive Director, Alaska Miners Association (AMA), Anchorage, Alaska, said they support SB 163. She said SB 163 addresses the process in which an outstanding national resource water (ONRW) is designated. The Federal Clean Water Act includes antidegradation rules, the most stringent of which is called "Tier 3." Any waterbody that is designated as an ONRW would fall under Tier 3 rules and cannot be degraded beyond the baseline conditions. This means that any new activities or expansion of existing activities on the waterbody that would change the water quality in any way would be prohibited, even if the discharge could prove it meets applicable water quality standards and fully protects fish, aquatic life and other water uses. To this end, I have a white paper that outlines the implications of a Tier 3 designation on watershed uses that I will submit with my testimony today. Designation of an ONRW and subsequent Tier 3 water protection would, without doubt, be a barrier to resource development, economic development and some crucial municipal projects. Conceptually, the AMA would prefer that the State of Alaska request that Alaska be exempted from the provisions within the Clean Water Act that requires the state to have a designation process in place. However, it may not be possible to secure this exemption and in that case, AMA believes the best avenue the state can establish a process is one in which waterbodies can be nominated for ONRW designation through an act of the legislature. Therefore, we support the passage of SB 163 this session, provided amendments are made to ensure the process is credible and done in a way that truly evaluates waterbodies with science and data prior to the pursuit of a designation. While there may be cases in which nomination of an ONRW is warranted, AMA believes the process and any designation could be used by some anti-development individuals or organizations to stop responsible development projects. To prevent this process from being used as a tool to stop the next mine, timber sale, fish processing plant, or oil and gas development, we propose the following amendments: 4:50:02 PM 1. A nomination can't be enacted unless the legislature confirms the designation. 2. The nomination should be specific to sections of water and can't go further or be applied to any waters outside the intended ONRW designation area. 3. Language should be included to provide the ability for DEC to reject nominations that fail to satisfy specific criteria and requirements for information that the department would establish in regulation. Vetting is a good word to use for this process. She read suggested criteria that was in a March 4 letter for any nomination. Information that proves the waterbody has exceptional unique characteristics relative to other state of Alaska waters including: - being in pristine condition, largely absent of human sources of degradation, -being of exceptional ecological, economical or recreational physical appearance, -being exceptional or rare example of its type, -accompanied by data that demonstrates these criteria. Further she suggested that DEC shall conduct a completeness review of all applications and be able to request additional information as necessary to process it even if it necessitates the nomination being held over to the next nomination period as outlined in the bill. DEC should have ability to require reimbursement for processing applications including the required evaluations and reports. DEC shall begin processing the application after a satisfactory reimbursable services agreement has been received from the applicant. DNR shall prepare a report evaluating the land use implications of any waterbody proposed for Tier 3 nomination that DEC submits to the legislature. It shall include the social and economic impacts arising out of the changes as a result of the designation. Before preparing the report DNR shall also enter into a satisfactory reimbursable service agreement with the applicant. 4:52:52 PM Finally, she said, DEC's final evaluations and determinations and findings regarding a waterbody or segment shall constitute a final department decision that could be administratively appealed. The department shall not forward any waterbody nomination to the legislature until all administrative and judicial appeals have been resolved. And should there be an administrative and/or judicial appeal, the decisions and records of that should be forwarded to the legislature at the time of decision. MS. CROCKETT said a fourth proposed change is to organize a timeline in which DEC collects nominations and forwards them to the legislature. Suggested language states within 10 days after the convening of each legislature the commissioner shall transmit to the legislature for consideration a list of nominations and related material that were received by the department within the 24-month period preceding September 1 of the previous year. Nominations of ONRW waters should be done constructively. Therefore AMA believes the agency should start each nomination period with a clean slate ensuring that previously nominated waters that the legislature declined to act on aren't forwarded to the legislature repeatedly. Requiring new nominations every two years will help to mitigate both duplicative and outdated nominations of waters already having been addressed as being inappropriate for designation. A list of nominations should only be forwarded to the legislature once per session. Nominations received by the agency after the September 1 deadline should be considered in the nomination period for the following legislature. Her last recommendation for SB 163 is that language be included that provides a mechanism in which the process can be reversed if the stream no longer needs Tier 3 protection. Ms. Crockett said an ONRW designation shouldn't be a final decision; it should be made only if absolutely necessary with the goal of restoring the waterbody to a condition in which multiple uses can return to it. DEC and perhaps the legislature will need the authority and process to change a designation if and when applicable. She concluded saying that even with their lengthy comments and suggestions, AMA believes that SB 163 is the start of a good bill with the potential of being good policy for Alaska. 4:55:37 PM SENATOR MICCICHE commented on the legislature versus administration discussion that Idaho has no ONRWs. Montana has a Board of Environmental Review and has designated waters of the National Parks and Federal Wilderness Areas but no Tier 3 waters. Oregon and Washington both have an administrative process and both are more environmentally active on water quality than folks in Alaska. Neither has a single Tier 3 waterbody in their states. Wyoming seems to be the only western state that has an Environmental Quality Control Council appointed by the governor that has 15 other waters plus adjacent wetlands that have been designated other than National Parks and Wilderness Areas. It's interesting, because nothing today prohibits DEC from designating Tier 3 waters and nothing indicates that more waters would be designated under a board process in western states. He wondered what the Governor's thought process was. CHAIR GIESSEL said DEC opined that Article 8 of the Constitution says the legislature shall provide for the "utilization, development, and conservation of all natural resources falling into the state including land and waters." Therefore she believed that was the foundation on which the governor opines that it falls under legislative authority. SENATOR STOLTZE commented that there were some assertions that the legislature is a partisan political body and asked if the commissioner would talk about the governor's motivation before the bill leaves committee. CHAIR GIESSEL said "absolutely."