04/01/2016 03:30 PM Senate RESOURCES
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|Presentation: Food Security|
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SB 163-NATL. RES. WATER NOMINATION/DESIGNATION 3:30:41 PM CHAIR GIESSEL announced consideration of SB 163. She said this is the fifth hearing; the last hearing was on March 16 and public testimony had been heard and closed. 3:30:46 PM SENATOR WIELECHOWSKI joined the committee. SENATOR COSTELLO moved to adopt CSSB 163 ( ), labeled 29- GS2916\I, as the working document. CHAIR GIESSEL objected for purposes of explanation. 3:31:25 PM SENATOR MICCICHE joined the committee. 3:31:31 PM MICHELLE HALE, Director, Division of Water, Department of Environmental Conservation (DEC), Anchorage, Alaska, explained the changes in version I of SB 163 as follows: 1. Page 1, line 7: changes the name of Tier 3 waters to outstanding state resource waters instead of national waters. 2. Page 1, lines 9-10: adds that the Legislature may remove a designation. 3. Page 1, line 12 - page 3, line 7: rather than have the process for submittal of nomination information and public notice established in regulation (AS46.03.085(c) in the original bill), the CS establishes an eleven point criteria a nomination must include, and adds a fee (Section 46.03.135(b)(1) through (11)). The fee for a completeness determination of the nomination information. CHAIR GIESSEL asked for a discussion of the fee. MS. HALE replied the fee language is on page 3, line 7, and it is $1,000. It is to provide the agency with resources for making the completeness determination. That's not the analysis, but just in-taking the information, reviewing it, and making sure that it adheres to the previous 10 criteria in that section. 3:33:57 PM 4. Page 3, line 9: Adds a six month timeline for the department to determine that a nomination is complete in AS 46.03.145 5. Page 3, lines 10-25: Allows for the department to enter into an agreement with a nominator for the nominator to reimburse the department for the costs related to the analyses (not related to the completeness determination) of the nomination process including public notice, preparation of the findings, analyses and determinations related to the nomination to the legislature. The agreement that the department would enter into would also include money to reimburse the other resource agencies for the work that they do. So ADF&G and DNR would be included in that agreement and DEC would basically RSA the money to them. Alternatively, the department can prepare a cost estimate for processing a nomination and forward that to the legislature for consideration as a capital appropriation. 3:35:18 PM 6. Page 3, line 31 - through page 4, line 2: outlines that the department shall establish a process for providing public notice, including individual notice to land owners, and for prioritizing nominations in AS 46.03.155. And provides a process of prioritizing nominations. 7. Page 4, line 10 - page 5, line 16: Before transmitting nominations to the legislature, adds that the department must certify a nomination complete; in consultation with DNR and DF&G, determine that the water has exceptional characteristics; in consultation with DNR and DF&G create a report analyzing certain factors related to the nomination including analysis of risk that the water will be degraded, and the pros and cons of alternatives available to preserve the water in AS 46.03.165. 3:36:38 PM 8. Page 5, lines 17-23: Clarifies that a list of nominations from the preceding four calendar years is submitted to the legislature in the first regular session of each legislature after January 2018, while entire nomination packets for nominations certified complete in the preceding two calendar years are submitted in AS 46.03.175. 9. Page 5, lines 24-29: Requires the state resource agencies (DNR and DEC) to submit a report to the legislature every ten years beginning in 2020 on the status of designated waters and recommendations on continuation of the designations. 10. Page 5, line 30 - page 6, line 4: Provides language describing how the department shall manage a designated water to maintain its existing water quality and only allow discharges that result in temporary lowering of water quality in AS 46.03.185. 11. Page 6, lines 5-7: clarifies that a water cannot be managed as an outstanding state resource water until it has been designated as such. 12. Page 6, line 10-14: provides a definition of "resident" and "waters of the United States" in AS 46.03.195. 13. Page 6, lines 15-19: adds uncodified law that the department's first submittal of nominations to the legislature be after 2018. 3:38:51 PM SENATOR STOLTZE said Commissioner Hartig talked about finding the middle ground and asked if she would describe this as middle ground. MS. HALE answered yes, adding that they had worked very hard listening to comments and from the Senate Resources Committee to find that middle ground. CHAIR GIESSEL asked her to explained the error in citing the CFR on page 6, line 14. MS. HALE said the citation on line 14 is 40 CFR 230.3 and it should be 40 CFR 122.2. Both are definitions of waters of the U.S.; they just refer to different parts of the CFR and 122.2 is more appropriate to point source discharges. CHAIR GIESSEL said they would correct that after they adopt the CS. SENATOR WIELECHOWSKI asked if a tribe can apply for a designation under this bill. MS. HALE said the definition of resident of the state is defined in AS 01.10.055 and it is quite broad. It doesn't specifically call out tribes, but it does call out organizations and any person. For example, the chief of a tribe would be a person or resident of the state. SENATOR WIELECHOWSKI asked if the CS requires the legislature to formally consider a nomination after a person has paid the $1,000 fee. MS. HALE answered that nothing in the CS requires the legislature to formally consider that nomination. It just outlines the process the departments go through for their analyses and for getting that information to the legislature, and then it's up to the legislature to decide what they want to do with it. CHAIR GIESSEL said the $1000 fee is to pay for staff time used to make sure the application is complete. SENATOR WIELECHOWSKI asked how DEC will prioritize the nominations. 3:41:50 PM MS. HALE said that DEC would write regulations to clarify that, but one example of prioritizing those nominations would be the completeness of it. So, a large report with a lot of detail in it might have a higher priority than a simple letter. SENATOR WIELECHOWSKI asked if the DEC believes any waters deserve protection right now. MS. HALE said she wouldn't know how to answer that question. SENATOR WIELECHOWSKI asked if DEC has evaluated any waters and come to the conclusion that they should be protected as natural resource waters. MS. HALE answered no. 3:43:09 PM SENATOR MICCICHE asked why the administration brought this bill forward at this time. ED FOGELS, Deputy Commissioner, Department of Natural Resources (DNR), Juneau, Alaska, answered that the DEC is lead on this issue, but from DNR's perspective the Clean Water Act (CWA) requires the state to have this program. If the state doesn't develop its own program the concern is that the Environmental Protection Agency (EPA) could impose its own program. SENATOR MICCICHE said he wanted to pose that question to DEC, as well. 3:44:43 PM MS. HALE said DEC has been through the process over the last several years of actually putting its anti-degradation implementation procedures in regulation. It has been a very public process. The requirement to have a process for designating Tier 3 waters is in the CFR in the CWA and they are committed to finalizing it. This bill arose at this time as an "outgrowth of the work on those anti-degradation implementation procedures." SENATOR MICCICHE asked if it is related to the three current requests that are on the list for Tier 3 waters. MS. HALE answered the fact that they have those three requests is separate from the proposed legislation, although they are related. That is not what drove the legislation. SENATOR MICCICHE asked if Alaska had a choice in adopting an anti-degradation policy in 1997 under the CWA. MS. HALE replied that it is a requirement. SENATOR WIELECHOWSKI asked if language on page 3, lines 8-16: "Within six months after receiving a nomination the department shall determine whether the nomination meets the requirements. If after six months no determination is made...." means it automatically is concluded that the nomination meets the requirements and asked if there is some sort of penalty if the work isn't done within six months. MS. HALE replied that she didn't know the answer to that question. SENATOR WIELECHOWSKI said if the public nominates a waterway could they reasonably conclude that if six months passes and a determination hasn't been made, that it's automatically deemed to be a complete application. 3:47:48 PM MS. HALE replied that it would certainly be her intent to meet that six month deadline, but their attorney could better address that. 3:47:51 PM CHRIS PELOSO, Assistant Attorney General, Civil Division, Commercial and Fair Business Section, Department of Law (DOL), Juneau, Alaska, said he believed under state law, the nominator would be able to bring a suit or a complaint against the DEC for failure to meet its deadlines and a judge could order them to make a determination. SENATOR WIELECHOWSKI supposed that a judge did that and added that then it would still have to go to the legislature. He asked if a remedy is available if the legislature doesn't take any action. MR. PELOSO answered no; neither the DEC nor the courts can force the legislature to consider or take action on a bill. SENATOR WIELECHOWSKI asked if this legislation passes, could the citizens of Alaska designate a water body by ballot initiative. MR. PELOSO answered that a person could decide to go through the ballot initiative process. CHAIR GIESSEL added that the initiative would be submitted to the lieutenant governor who would then ask the Department of Law (DOL) if it was legal. MR. PELOSO said that was correct. SENATOR WIELECHOWSKI asked if he has an opinion about whether or not - if this passes and the determination process is turned over to the legislature - if it fails to act if the people of Alaska could legally designate a waterway through a ballot initiative. MR. PELOSO replied from his understanding of the state constitution, the legislature is a body that would designate this type of water body through a number of processes. If a bill came forward for a water body that clearly didn't meet the qualifications, it would be incumbent upon the Senate, or the voters in a ballot initiative, to make the determination that that waterway didn't deserve protection. SENATOR WIELECHOWSKI asked if it was his opinion that the people of Alaska could through a ballot initiative to nominate a waterway if this bill passes. MR. PELOSO said he believed that is the case whether or not they pass the bill. 3:51:31 PM SENATOR MICCICHE said that issue is worthy of further discussion. "Doesn't Kelso v. Rivichek in '96 define the fact that the state has the discretion in developing water quality regulations?" MR. PELOSO said he would have to look at that case law. SENATOR MICCICHE said Mr. Peloso made a statement that he believes the people have the right to designate water quality regulations and he wasn't sure that is the case. It is a valid and important question to which he wanted more information on. He added that the DEC currently has the authority to designate an NROW. MS. HALE answered that there is some real ambiguity in terms of who has that authority; either it's authority granted to the legislature by the constitution or the authority is granted to the DEC through the Water Quality statute. SENATOR MICCICHE said the governor made the policy choice to have the designation authority rest with the legislature and not with the DEC. 3:53:21 PM MS. HALE said the governor did make the choice to put this bill forward, but it is also the DEC's belief that the decision to designate a waterway more appropriately rests with the legislature. SENATOR COSTELLO said she wanted to clarify her response to Senator Wielechowski's question. She understands the way the bill is written that nominations that are forwarded to the legislature by the department would be in the form of just a report, not in the form of a bill. MS. HALE said that is correct; it would be in the form of a nomination with the backup information. SENATOR COSTELLO asked if an administration would be able to both forward a nomination in the form of a report and a bill that is introduced on behalf of the administration. MR. PELOSO answered yes. He thought a bill for nominating a water body would be simple: amending the statute by adding or subtracting waters off the list. 3:55:13 PM SENATOR COSTELLO said if this were to pass, statute would say that only the legislature could designate an Outstanding State Natural Resource Water (OSNRW) and asked if it was his opinion that a citizens' initiative could trump that state statute. MR. PELOSO replied that he would have to do more research on how ballot initiatives work. CHAIR GIESSEL said they would get an opinion from the Department of Law on that. SENATOR WIELECHOWSKI said one of the requirements is that the entirety of the water nominated is a water of the United States (page 4, line 13) and asked if that means if a river flows through Canada and comes into Alaska that it could not be nominated. MS. HALE answered that it is the "entirety of the water that is nominated" that needs to be part of the United States. Frequently one will see segments nominated in other states rather than the entire reach of the river. SENATOR WIELECHOWSKI asked when DEC submits its packet of information to the legislature can they expect a recommendation to accompany it to make the nomination or not. MS. HALE answered that it isn't called a recommendation, but rather a thorough analysis. 3:57:49 PM SENATOR STOLTZE asked how the $1000 completeness review fee was determined and if it actually covers the cost of the review. MS. HALE answered that the department has a lot of fees for services and is accustomed to the extent of work that can be done with a fee. The fee is a rough estimate based on how similar to other work it is. SENATOR STOLTZE said it's easy to get waiver variances for things like septic or discharge systems and asked if the fee is to discourage frivolous applications or does it come anywhere near covering staff cost for the review. MS. HALE said she is familiar with the kind of analysis the engineers do for those types of waivers and this work is very different in nature - a completeness determination and not an engineering analysis. The workload is similar, though. SENATOR STOLTZE asked if it is a similar staff commitment to review a septic system for a small lot as to analyze and review a river application that is permanent. Would $1000 cover all staff time and public process required or was it just a nominal fee to have some skin in the game? He was trying to develop an understanding. MS. HALE pointed to Section AS 46.03.145 on page 3, lines 8-25, that says the analysis and public notice costs he is describing would not be covered by the $1000 fee. The purpose of the $1,000-fee is simply to determine if the 11 criteria in the original section are met. Other costs for public notice and in- depth analysis would be covered in a negotiated agreement that the department would negotiate with the nominator. CHAIR GIESSEL said that was helpful and added that the final sentence says a capital appropriation would be needed and that would be the fiscal note. MS. HALE added that the fiscal note does not contain a capital appropriation. It is a multi-year operating appropriation for statutorily designated program receipts. So, it's essentially an empty appropriation until the negotiation is agreed to and signed. The program receipts would then be used to fund the DEC work or to RSA to DNR and ADF&G. CHAIR GIESSEL said although that is true, this certainly leaves a potential for future fiscal notes related to this kind of legislation. It appears that one can negotiate, because line 13 says the "resident shall reimburse the department for the costs or a portion of the costs incurred by the department or another state agency related to the nomination process." MS. HALE said further on they will talk about this potential capital appropriation, but right now they are in the situation of not knowing what the budget is going to be forever or how each negotiation will work out. So, there is an attempt to provide some flexibility. 4:04:38 PM SENATOR WIELECHOWSKI said it appears that the bill's whole focus is on nominations from residents and asked if it is possible for the governor, the legislature, a legislator, or a committee to nominate a waterway. Could a community such as Juneau or Haines nominate a water way? MS. HALE answered that she didn't have the definitions in AS 01.10.060 with her, but "resident" is defined quite broadly in that section. "Resident of the state" in the definition section means "an individual who establishes residency under AS
01.10.055," and .060 has the actual definition of resident that includes, for example, organizations. SENATOR WIELECHOWSKI asked if the governor or a legislator has to write a check for $1,000 if they want to nominate a waterway. He said the whole bill seems geared towards private citizens as opposed to "sort of the normal legislative process." MS. HALE answered that it has been DEC's understanding that if the legislature wanted to designate a water body as a Tier 3 or an ONRW water, they could do that themselves without this process. The governor could probably introduce a bill. 4:06:28 PM SENATOR MICCICHE asked DNR Deputy Commissioner Fogels if he could recall a 2014 ballot initiative on Bristol Bay watershed and what it asked about that watershed. MR. FOGELS answered that he remembered it requiring legislative approval of any large mining development in the Bristol Bay watershed after all the permits are issued. SENATOR MICCICHE said a similar effort is sort of going on here. MR. FOGELS responded that it is similar in that a significant decision is being deferred to the legislature, but he didn't know the thinking of the folks who put that initiative forward. SENATOR MICCICHE said he would try to contact them and find out. SENATOR COSTELLO said language on page 1, lines 7-10, say that only the legislature can designate, but page 11 talks about a nomination and its requirements and asked if the legislature were to designate a water body would the requirements apply to a bill. Common sense says that it would, but the language of the bill doesn't really cover that. 4:09:40 PM MS. HALE answered the requirements for the nomination are just that; the purpose is to make sure there is sufficient analysis and that information gets presented to the legislature. Then it is up to the legislature to do what they want; they could include the information in the designation or they might do something else. For example, Commissioner Hartig has spoken of the fact that the legislature has broad powers, so they may designate something that is slightly less protected than a Tier 3 water but very protected still. SENATOR COSTELLO thanked her, but said it didn't get to the point of her question which is if the designation were entirely generated from the legislative branch absent a nomination with all of the information, could the legislature designate a Tier 3 without meeting the requirements set out, for example, on page 2, line 14, that it has exceptional ecological, economic, or recreational significance. MS. HALE replied that it is her understanding that the legislature can do whatever it wants to. The Tier 3 definition is very broad and talks about these exceptional characteristics, but they have also talked about a very high level of water quality or something that is unique, for example, Mono Lake in California. SENATOR STOLTZE said given ADF&G's constitutional and legal responsibilities of sustainability and habitat protection and DNR's constitutional responsibility under Article 8, he wanted to know if either department has any concerns about this legislation compromising their mission. 4:12:39 PM MR. FOGELS answered that the department supports SB 163 and it will be able to continue fulfilling its mission of managing Alaska's water and other natural resources for the good of the people if it passes. They want to make sure if they are going to designate Tier 3 waters that the legislature and the people understand what that means and what restrictions might be placed on that water, so that that decision can be made very carefully, because it could have implications down the road. KEVIN BROOKS, Deputy Commissioner, Alaska Department of Fish and Game (ADF&G), said he also supported SB 163 and Mr. Fogels' comments. They feel the bill provides the department an opportunity to bring its valuable expertise on water bodies to the table. SENATOR STOLTZE asked if any provisions of this legislation would be deleterious or harmful to their ability to manage fish resources. MR. BROOKS replied that although a compromised water body would certainly affect fish, this bill provides a process for dealing with that. 4:15:11 PM CHAIR GIESSEL noted an incorrect CFR citation on page 6, line 14 that was a drafting error brought to their attention by DEC. SENATOR STEDMAN moved conceptual Amendment 1 on page 6, line 14, of CSSB 168, version I, to delete "230.3" and inserting "122.2". So it would read "2. Waters of the United States has the meaning given in 40 CFR 122.2, as that section read on the effective date of this act". 4:16:44 PM CHAIR GIESSEL said they needed to adopt the CS first and asked if there was objection to adopting CSSB 168, version \I. There were no objections and it was so ordered. SENATOR STEDMAN moved to conceptually amend the previous amendment. There were no objections and it was so ordered. SENATOR WIELECHOWSKI asked if there is a different definition of waters of the United States that 40 CFR 230.3 didn't cover. CHAIR GIESSEL objected for discussion and invited Ms. Hale to clarify. MS. HALE said the waters of the US rule, which is currently stayed because of litigation, has a definition of "waters of the US" at 230.3, but there are numerous other definitions of "waters of the US" throughout the CFR. The definition at 122.2 is the more appropriate definition of the purposes here: point source discharges, for example, and discharges under the National Pollutant Discharge Elimination System Program. SENATOR WIELECHOWSKI asked what 40 CFR 230 deals with. MS. HALE answered that 40 CFR 230.3 deals with the Dredge and Fill Program. 4:19:00 PM SENATOR COSTELLO asked if the committee could get both definitions in 40 CFR 122.2 and 230.3 just to see them side by side at some point. CHAIR GIESSEL said absolutely and asked Ms. Hale to get them. She removed her objection and asked if there was further objection to adopting the amendment. SENATOR WIELECHOWSKI asked if it would be possible to wait until they get the two definitions side-by-side. CHAIR GIESSEL replied that she was planning to set the bill aside as soon as they determine what to do with the amendment and tomorrow Ms. Hale can get the definitions for them. SENATOR WIELECHOWSKI reiterated it seems that the committee should wait to make the decision on the amendment until they had the definitions. CHAIR GIESSEL said the committee could amend it tomorrow if he found the definition is incorrect. Finding no further objections and said the amendment was adopted. She held SB 163 in committee awaiting the definitions from Ms. Hale.