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Legislators hear departments on initiative
Ballot measure 1, the ‘salmon initiative’, would be costly to state; state challenging validity of measure at Alaska Supreme Court Kristen Nelson Petroleum News
The Alaska Senate’s State Affairs Committee heard an update July 20 from state departments on the potential impact of ballot measure No. 1, the so-called salmon initiative.
A memo from Legislative Legal Services to Committee Chair Kevin Meyer, R-Anchorage, provided a brief summary of the initiative, telling the committee it “would establish a multi-tiered permitting regime for activities likely to adversely affect anadromous fish habit,” amending Alaska Statute 16.05 “by adding new sections to describe fish and wildlife protection standards … and permitting requirements ‘before initiating any activity that may use, divert, obstruct, pollute, disturb or otherwise alter anadromous fish habitat.’”
Lt. Gov. Byron Mallott denied certification of the initiation as an unconstitutional appropriation of state assets last September, but in October the Superior Court found that the initiative did not appropriate a state asset and granted a motion for summary judgment in favor of the initiative group, requiring the division of elections to provide petition signature booklets to initiative sponsors.
The state appealed the Superior Court’s determination. Legal Services said the issue before the Alaska Supreme Court is whether the initiative usurps the Legislature’s “discretion to allocate anadromous fish habitat among competing users and purposes.”
Fish & Game Commissioner of Fish & Game Sam Cotton and Ron Benkert, fish and game coordinator, habitat southcentral, reviewed the department’s current statutory authority and the new duties the initiative would require of the department.
They said that under the initiative the presumption is that naturally occurring connected water bodies and adjacent riparian areas are anadromous, whereas the department’s current jurisdiction ends at the ordinary high-water mark of documented anadromy.
The initiative may prevent the department from issuing permits for the proposed Donlin Prospect mine because two anadromous streams would be permanently eliminated and the initiative would restrict project mitigation to on-site only. Major highway projects could be affected because highways often parallel streams and rivers, requiring extensive erosion control or relocation and because the adverse effect on anadromous fish habit potentially could not be permitted.
Time and cost would be increased for stakeholders, the department said, and the department would be required to hire additional staff and develop new regulations.
Transportation & Public Facilities Department of Transportation & Public Facilities Commissioner Marc Luiken and the department’s statewide environmental program manager, Ben White, said the ballot measure would require an additional eight positions within the department at an annual increase of $953,900; Fish & Game had cited a $1.3 million annual cost.
DOT&PF projects involve work within and near fish habitat for culverts, bridges, roadway embankment protection and stream realignments - temporary and permanent. They said proposed language could restrict or prohibit culverts with inverts, riprap for erosion protection, channel maintenance and temporary construction activities, and noted that project delivery would be delayed because the initiative language requires applicants to prove fish do not exist for all work in Alaska waters. Language could require an environmental assessment (1-3 years to develop) or environmental impact statement (up to 5 or more years) whereas most current minor maintenance work falls under a categorical exclusion (6-12 months).
DOT&PF cited one of the same issues as Fish & Game - mitigation is required on-site.
Natural Resources Natural Resources Commissioner Andy Mack and Kyle Moselle, associate director, Office of Project Management & Permitting, said while the initiative focuses primarily on Title 16 fish habitat permits and Fish & Game statutory authorities, if passed into law it may constrain DNR’s statutory authorities to appropriate water, which is does for transportation projects, mining/industrial projects, pipelines, residential/commercial construction projects, municipal water and sewer and schools and other municipal buildings and many smaller projects.
DNR must consult with Fish & Game and the Department of Environmental Conservation in temporary water use authorizations.
For large projects, DNR’s Office of Project Management and Permitting may coordinate review of larger scale projects in the state and facilitates multi-disciplinary agency teams to review plans. The initiative would require additional public notice.
Environmental Conservation Commissioner of Environmental Conservation Larry Hartig and Andrew Sayers-Fay, the department’s director of water, reviewed Alaska water quality standards, noting they were set through a public process with the federal Environmental Protection Agency. Point sources of wastewater discharging pollutants require a permit under the National Pollutant Discharge Elimination System; the state’s wastewater discharge program is called the Alaska Pollutant Discharge Elimination System. The APDES permit process includes consulting with Fish & Game and the applicant to determine if discharge is to an anadromous waterbody.
DEC said there is a rebuttable presumption under the salmon initiative that all waters in Alaska are anadromous, with no mixing zones allowed.
DEC would be required to review all existing permits with mixing zones in freshwater. For new systems, or at renewal for existing systems, the requirement would be to meet water quality standards at the end of the discharge pipe, with increased complexity for the engineering plan review and more stringent permit limits. DEC said it would require a new permit writer and engineer under the salmon initiative.
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