Latest fish habitat bill goes too far, or not far enough
A new version of legislation to revamp Alaska’s salmon habitat permitting system is aimed at increasing public involvement and the ability of regulators to impose penalties for noncompliance.
The bill’s author, Kodiak Republican Rep. Louise Stutes, said the second iteration of House Bill 199 is the result of months of talks with stakeholders and what she believes to be an effective balance of fish protections while still allowing responsible development projects to go forward.
“I believe this draft is more in line with the request by the Board of Fish. It is a much-needed improvement to Title 16 that focuses on public notice, public comment and the ability for the public to affect the process, criteria for the proper protection of fish and providing the Department of Fish and Game with more enforcement tools,” Stutes said during a hearing of the House Fisheries Committee, which she chairs.
She added that she’s confident the provisions in the new HB 199 will be workable for development industries and good news for fish advocates.
The Alaska Board of Fisheries, which regulates the gamut of fishing activities in the state, wrote a letter to legislative leaders in January 2017 urging them to update the state’s anadromous fish habitat permitting law, known as Title 16, to include more opportunities for public involvement and enforceable standards to the current law that many feel is outdated and too vague.
Current law directs the Fish and Game commissioner to issue a development permit as long as a project provides “proper protection of fish and game,” leaving the definition of what is acceptable up to interpretation.
The original version of the bill released about a year ago would have set stringent requirements in law on construction in and around salmon habitat. Specifically, it required habitat degradation mitigation measures to be applied to the water impacted, eliminating the possibility of using habitat improvements to nearby waters as a reasonable offset to expected damages.
According to Fish and Game Habitat Division officials, such off-site mitigation is one of the last options for a project proponent when damage to habitat cannot be avoided, but it is a fairly common practice for very large projects, such as mines, that cannot be moved or effectively scaled to avoid impacting salmon habitat.
The old bill also would have presumed that all waters connected to the ocean are anadromous fish habitat and put the onus to prove otherwise on project proponents.
The original HB 199 largely mirrored the Stand for Salmon ballot initiative, which has drawn the opposition of oil and gas, mining, logging and construction trade groups as well as most Alaska Native corporations for being a de-facto prohibition on new development in Alaska, they contend.
Gov. Bill Walker also opposes the Stand for Salmon initiative, saying it is too restrictive and major policy changes should be thoroughly vetted through the legislative process rather than being subject to a simple up or down referendum vote with no opportunity for adjustments.
The Stand for Salmon initiative was certified with 41,999 supporting signatures by the Division of Elections to appear on the 2018 ballot March 15, but it still faces a Supreme Court decision on its constitutionality. The state Supreme Court will hear the Stand for Salmon case April 26.
The state is appealing a Superior Court ruling from last fall that overturned the decision of Lt. Gov. Byron Mallott that the initiative is unconstitutional.
The initiative sponsors have said they too would prefer to make changes to Title 16 via the Legislature, but they continue to push the ballot measure to assure action is taken if the Legislature fails to pass the bill.
Passing some version of HB 199 would likely render Stand for Salmon moot, as legislative law changes deemed similar to the intent of a voter initiative would preempt the initiative.
However, given the late timing of the new bill in a Legislature wholly preoccupied with resolving the state’s ongoing multibillion-dollar budget deficits, it appears HB 199 will be challenged to move through several more House and Senate committees to be passed in the waning days of the current session.
House Majority coalition leaders have said they expect the salmon habitat discussion to be a long process. The bill would have to start from scratch in the new Legislature next year, but that would not be a major change from its current status given HB 199 is still in House Fisheries, its first committee of referral.
Stutes pulled those major mitigation and anadromous fish habitat presumption policy changes from HB 199, but the bill would still establish minor and major tiers for habitat permits, a primary provision of the first version. The Fish and Game commissioner would have the ability to issue blanket minor permits for common activities such as crossing streams with an ATV. General permits for such activities would be renewed every five years.
Major permits would require publication of both a draft and final version of salmon habitat impact assessments.
Public notice and comment periods would be required for the issuance of a minor permit and when draft and final assessments are published.
There are currently no public notice requirements for anadromous fish habitat permits, which proponents contend is insufficient given salmon are a valuable and public resource.
HB 199 would also require project proponents post bonds sufficient to restore habitat if permit conditions are not adhered to.
The other major change from current law in HB 199 is a provision giving designated Fish and Game officials authority to issue on-the-spot citations or tickets for disturbing salmon habitat without a permit or not complying with an issued habitat permit.
Currently, all salmon habitat violations are Class A misdemeanor offenses that require a court appearance and Alaska State Troopers act as Fish and Game’s enforcement arm.
Habitat Division Coordinator and fisheries biologist Ron Benkert, who has testified extensively to House Fisheries on the issue, said in March interview with the Journal that the current enforcement system is good in theory, but it requires substantial time from often overworked prosecutors and busy judges must be willing to hear the cases. The process lends itself to very few salmon habitat violations being prosecuted, according to Benkert.
Rep. Mark Neuman, R-Big Lake, suggested giving Department of Natural Resource officials similar enforcement authority for the many land use and resource activity-related permits DNR issues.
Rounds of public testimony April 7 and April 9 on HB 199 elicited far more support than opposition, though numerous testifiers’ comments seemed to relate to the original version of the bill.
Alaska Support Industry Alliance CEO Rebecca Logan said HB 199 does not achieve the stated goals of protecting salmon habitat while correspondingly allowing for development.
“At a time when we have the highest unemployment in the nation and have lost thousands of the best jobs we have in the state — to insert uncertainty into the permitting process leads to delay and delay leads to no jobs and for those reasons and many more the Alliance is opposed to HB 199,” Logan said.
Americans for Prosperity Alaska Director Jeremy Price called it “a regulatory nightmare,” in his testimony. “It only adds to the cost of a project.”
Stand for Salmon Director Ryan Schryver thanked Stutes for her work on Title 16, but said the new HB 199 doesn’t go far enough to guard anadromous habitat, as did several other testifiers.
“While we don’t support the bill in its current version, we will continue to work with legislative leaders to update the law and fix the fundamental problems with salmon habitat protections in our state,” Schryver said in a formal statement April 7.
Elwood Brehmer can be reached at [email protected].